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b56199e6-e3ff-45e7-a81e-43b22644fa54	EMPIRE DEVELOPMENT CO v JOHNSON	N/A	88-130	Montana	Montana Supreme Court	No. 88-130 IN THE SUPREME COURT OF THE STATE OF MONTANA EMPIRE DEVELOPMENT CO., d/b/a BILLINGS NEON CO., Plaintiff and Respondent, -vs- BOB JOHNSON, d/b/a RAILS INN, and CLARA E . IRONS, d/b/a BEANERY CAFE, SIDETRACK LOUNGE, Defendants and Appellants. BOB JOHNSON, d/b/a PAILS INN, Counterclaimant and Appellant, EMPIRE DEVELOPMENT CO., d/b/a BILLINGS NEON CO., Defendant and Cross-Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding. COUNSEL OF RECORD: For Appellant: Calton, Hamman, Calton & Wolff; Rodd A. Hamman, Billings, Montana For Respondent : I-; West & Miller; Jock R . West, Billings, Montana rl - 1 C N .. C ) : . I 0 : I E-7 Submitted on Briefs: Dec 29, 1988 (11 c Decided: March 21, 1984 ~ i . e d ~ - LL CJ ,< + + -. L - ..-- ( C - t- : -- L J 1 - Mr. Justice William E. Hunt, Sr. delivered the Opinion of the Court. Rob Johnson, doing business as Rails Inn, appeals from a judgment of the District Court of the Thirteenth Judicial District, Yellowstone County, awarding damages of $920 to Empire Development Company, doing business as Billings Neon Company (Billings Neon), for payments and deposit due under two sign rental agreements. Billings Neon cross-appeals from that part of the judgment relieving Johnson of liability for further payments under the leases. We affirm. Johnson raises the following issue: Did the District Court err by failing to credit Johnson for payments made under two lease agreements? Billings Neon puts forth an additional issue for review: Did the District Court err in concluding that Billings Neon failed to properly install and maintain rented signs as provided in the lease agreements? On February 28, 1981, Bob Johnson, owner of the Rails Inn in Forsyth, entered into a contract with Billinqs Neon for the lease of one pylon display. The contract provided that, for a monthly rental of $565, Billings Neon would erect and maintain a pylon display consisting of a four-column structure on which a remote control clock and two "Rails Inn" signs were posted. The agreement also required Johnson to pay an advance deposit of $2,260. On December 9, 1982, the parties negotiated a second lease, which expressly cancelled and superseded the first. The purpose of the second lease, apparently, was to remedy some visibility problems with pylon display. The second contract covered the existing pylon display and, in addition, required Billings Neon to erect and maintain a roof display "Motel" sign. The lease called for monthly payments of $600 for 60 months, plus an advance deposit of $2,400. The parties agreed to transfer the $2,260 deposited under the first lease to the second, leaving a balance of $140 on the advance deposit. Johnson never paid the deposit balance. On January 28, 1983, Johnson guaranteed a lease entered into between Billings Neon and Clara E. Irons. The contract required Irons, who leased the Beanery Cafe and Sidetrack Lounge from Johnson, to pay monthly rent of $260 for a "24 Hour Cafe" sign to be erected and maintained by Billings Neon. The contract also provided for an advance deposit of $1,040, which Irons paid. The "Motel" and "24 Hour Cafe" signs were installed by approximately March 23, 1983. On July 20, 1983, a strong windstorm wrenched the motel sign off its supports, damaging the roof of the Rails Inn. Johnson's insurance paid for all but $100 of the repairs to the roof. Billings Neon did not compensate Johnson for the $100 although the contract required the sign company to carry insurance that indemnified against property damage claims. The windstorm also damaged the cafe sign. One day after the gale, Billings Neon was notified of the damage to the signs. Billings Neon never repaired either sign, although it retrieved the motel sign and took it to Billings, where it was later destroyed. Neither Irons nor Johnson made any monthly payments under the cafe sign contract. Johnson did not make any payments under the motel sign lease until January 19, 1984. At that time, Johnson paid $1,000 to Billings Neon. The Billings Neon bookkeeper testified that she did not credit this payment to the motel sign lease, but instead applied the payment to the month of October 1982 and part of November 1982 under the first lease. On June 25, 1984, Johnson paid $1,500 to Billings Neon. The bookkeeper applied part of that payment to the first contract and the rest to other accounts Johnson kept with Billings Neon. On December 5, 1984, Billings Neon notified Johnson in writing that he was in default on the motel sign lease, giving him five days to pay the balance due. Johnson failed to make the payment requested. Therefore, on December 12, 1984, Billings Neon accelerated the contract, demanding payment of $33,740. Johnson did not pay. Both the first and second Rails Inn leases provided for a remote control clock on the pylon display. Johnson testified that he understood that the remote control box was to be installed in the motel office. His employees, however, could not locate the box, which caused a great deal of inconvenience during Forsyth's frequent power outages. Apparently, at some point between July 1983 and April 1985, the pylon display quit working. In April 1985, the new manager of the Rails Inn contacted Billings Neon to inquire ahout repairing the display. The manager was told that if he paid some money, the sign might be fixed. The manaqer sent a $600 payment in response. A few days later, a local electrician appeared and began to work on the display. When the motel manager discovered that the electrician thought he was working for the motel, not Billings Neon, the manager informed him that Rails Inn would not he responsible for the bill. The electrician left. The pylon display stood unrepaired until, some time later, Johnson hired his own electrician to work on it. This electrician discovered that the control box for the remote control clock was located on one of the display poles approximately 10 or 12 feet from the ground. He was unable to repair the controls. On October 18, 1985, Billings Neon filed a complaint against Bob Johnson, alleging breach of the second lease and claiming damages of $33,740. Billings Neon also sought damages for breach of the cafe sign lease from either Clara Irons, as primary beneficiary of that agreement, or Johnson, as guarantor. Irons, however, had filed a petition for bankruptcy on June 10, 1983, which barred any action aqainst her. In response to the complaint, Johnson filed a counterclaim against Billings Neon, alleging breach of the first and second leases for failure to properly construct and maintain the signs and seeking a refund of all monies paid under the leases. Johnson additionally sought $129.50 in bills incurred by Billings Neon employees at the Rails Inn. At trial, Billings Neon admitted that it had authorized these bills. Thus, the charges are not at issue in this appeal. After a one-day bench trial on April 22, 1987, the District Court found that Billings Neon failed to properly install and maintain the signs under the two Johnson leases and to maintain the sign under the lrons lease. The court concluded that Johnson was not liable for any rentals due under the leases subsequent to such failures. The court found, however, that Johnson was liable for the months of April, May and June 1983, under the Irons' lease, for a total of $780. It also found that Johnson was liable for the $140 advance deposit he failed to pay under the second lease. In addition, the court awarded Johnson $129.50, representing the room and meal charges incurred by the Billings Neon employees. The court refused to grant either party attorney fees. From this judgment, both parties appeal. Johnson argues that the District Court erred by failinq to credit him for rental payments made under the first and second lease aqr~ements. At the same time we consider Johnson's argument, we must examine the question raised on cross-appeal, that is, whether the District Court erred in ruling that "Billings Neon failed to perform its obligation to properly install and maintain the signs under the two Johnson leases and failed to maintain and repair the sian installed under the Irons lease . . ." The facts demonstrate that the first lease was cancelled and superseded by the second. By mutually cancelling the initial agreement and substituting a new one in its place without expressly reserving their rights, the parties extinguished any claims they may have accumulated against each other under the first contract. Harrison Western Corp. v. United States (9th Cir. 1986), 792 F.2d 1391, 1393. Johnson therefore abandoned all claims for rental credit under the initial lease by failing to reserve his rights when he entered into the second. The cancellation of the first lease precluded the District Court from considering whether either party had breached that agreement. Therefore, the District Court erred in finding that Billings Neon breached the first agreement. This error, however, did no harm to Billings Neon because the District Court failed to award Johnson any damages due to the alleged breach. The trial court found that Billings Neon breached that part of the second Johnson agreement pertaining to the installation of a remote control for the pylon display clock. Billings Neon argues that this finding was in error, contending that a "remote control setting clock" as specified in the contract referred to a clock that could be reset by a means other than manually changing its hands. From this argument it follows that the installation of a remote control. box at any spot away from the face of the clock adequately fulfillec? the contractual term and Billings Neon complied with the agreement by installing the controls approximately 10 feet off the ground on one of the display pillars. Both the first and second Johnson lease agreements specified that the pylon display would include a remote control setting clock. In the second contract, the directions for the installation of the clock stated only, "Remain as installed." A district court must interpret a contract in a manner that gives effect to the intent of the parties at the time of the execution of the contract. Section 28-3-301, MCA. The court must ascertain the parties1 intent from the language used in the writing. Section 28-3-303, MCA. When the language of the contract is unambiguous, as it is in the second lease agreement, a resort to par01 evidence is unnecessary. Bunke, Inc. v. Johnson (1983), 205 Mont. 125, 137, 666 P.2d 1234, 1240. According to the plain language of the contract, at the time the parties executed the second lease, they had no quarrel with the location of the remote controls for the pylon display clock. The District Court therefore erred in allowing Johnson's testimony that he understood that the controls for the clock would be installed in the motel office. Billings Neon complied with the terms of the second lease by leaving the remote controls in the pylon display where they were originally installed. Billings Neon next contends that the District Court erred in finding that it breached the second Johnson lease and the Irons lease by failing to repair the motel and cafe signs after the July 20, 1983 windstorm. Billings Neon argues that the failure of either Johnson or Irons to make monthly payments under these leases relieved it of the obligation to repair the signs. "The non-payment of an installment of money when due will always create a riqht of action for that money, but it will not always he a total breach. A partial breach by one party . . . does not justify the other party's subsequent failure to perform; both parties may be guilty of breaches, each having a right to damages." 4 Corbin on Contracts 5 946 (1951). Whether the default of an installment payment constitutes a total breach thereby relieving the non-breaching party of its obligation to perform depends on the facts of each case. Gramm v. Insurance Unlimited (!963), 141 Mont. 456, 461, 378 P.2d 662, 664. In the present case, both Johnson and Irons failed to remit the monthly rent on their respective leases as the payments came due. Both leases provided that, in the event of default in payment by the lessees, Billings Neon could, at its option and with notice to the lessees, call the entire balance due. Although the leases were in default as of April 1983, Billings Neon failed to exercise the acceleration option until December 12, 1984, over one and one-half vears later. In the meantime, the cafe and motel signs were each damaged by the July 20, 1983, windstorm. Billings Neon failed to repair either sign, even though it had actual knowledge of the damage. The acceleration clause gave Billings Neon the ability to treat the lessees' failure to pay as a total breach. Billings Neon, however, failed to exercise that option until December 12, 1984. Therefore, prior to the exercise of the acceleration option, Billings Neon treated the non-payment of installments as a partial breach. Hence, as of July 20, 1983, the date on which the signs were damaged, Billing Neon was not excused from performing under the contracts. By failing to comply with the contractual duty to maintain the signs, Billings Neon breached the agreements. Consequently, as of July 1983, both parties were in hreach--Johnson for failing to pay rent, Billings Neon for failing to repair. Accordingly, each was entitled to damages. Under the contracts, Johnson's remedy for Billings Neon's breach was a credit on all rentals due after July 1983. Thus, by failing to repair the signs, Billings Neon limited its damages to the three months the motel and cafe signs were in operable condition. The District Court found Johnson liable, as guarantor of the Irons lease, for three months rent. Johnson does not contest this finding. He does, however, take issue with the District Court's computation of damages under the second motel sign lease. Johnson contends that he should be liable at most for the three months the motel sign stood atop the Rails Inns. If his liability is calculated in this manner, the damages suffered by Billings Neon equaled only $1,800--three months rent at $600 per month. However, Johnson paid Billings Neon $3,100--$1,300 more than $1,800. Johnson argues that the District Court erred by failing to give him credit for the excess amount. We do not agree. The record reflects that Billings Neon applied $600 of the total $3,100 paid by Johnson to the second sign contract and split the remaining $2,500 between the first sign lease and other accounts Johnson retained with the company. Clearly, Billings Neon erred by applying any of the payments remitted by Johnson after the execution of the second contract to the first lease. As we have stated previously in this Opinion, the failure of the parties to expressly reserve their rights when cancelling the initial contract extinguished all claims either party had under that contract. Billings Neon abandoned any right to payments it may have ha-d under the first lease when it signed the second. We do not hold, however, that the District Court erred by failing to credit Johnson with any monies paid over and above the $1,800 due under the second lease. The record reflects that Johnson kept other accounts with Billings Neon. The checks paid by Johnson do not indicate to which account the payments were directed. When a debtor who owes several obligations to a creditor fails to manifest an intent that he wishes payment to be applied to a particular account, the creditor may apply it to the account of the creditor's choosing. Section 28-1-1106(d), MCA. Since Johnson did not indicate which account he was paying when he remitted the checks, Billings Neon acted fully within its rights by applying the checks to other service accounts Johnson held with the company. Johnson also argues that the District Court erred by failing to credit him with the $100 he paid as deductible on his insurance when the windstorm tore the motel sign off its supports and damaged the F.ails Inn roof. Under the lease, Billings Neon agreed to carry insurance to indemnify Johnson against claims for damages to property caused by the signs. The evidence demonstrated, however, that the severity of the storm caused the damage to the roof, not any failure on the part of Billings Neon to properly erect the sign. Therefore, the District Court did not err by failing to credit Johnson with the $100 deductible. Lastly, Billings Neon maintains that it prevailed in the action because it was awarded a net judgment by the District Court. As the prevail-ing party, Billings Neon argues, it should have been awarded a reasonable attorney fee as provided by the contract. Generally, the party who receives the net judgment in an action involving a counterclaim will be considered the prevailing party for purposes of an award of attorney fees. However, this is not always the case. While the award of money is an important factor to consider when determining which party prevailed, j t is not the sole focus of the inquiry. E.C.A. Envtl. Management Services, Inc. v. Toenyes (1984), 208 Mont. 336, 345, 679 P.2d 213, 217-18. In a case such as this, where the parties have mutually breached the same contract, the District Court did not err by refusing to grant either party attorney fees. f We affirm the District Court. Justice We Concur: A Chief Justice	March 21, 1989
07b28621-099c-47d0-9bae-07a900d4741b	CRIBB v MATLOCK COMMUNICATIONS I	N/A	88-304	Montana	Montana Supreme Court	No. 88-304 IN THE SUPREME COURT OF THE STATE OF MONTANA ROBERT L. CRIRR and MARGARET V. CRIRR, husband & wife; M. BRUCE WRIGHT and SUSAN WRIGHT, husband & wife; and RON HELLAND and JOAN HELLAND, husband and wife, on behalf of all other stockholders of Glasgow Publishing Compan~, a Montana corporati.on, Plaintiffs and Respondents, -VS- NATLOCK COMMUNICATIONS, INC., an Idaho corporation; GLASGOW PUBLISHING COMPANY, a Montana corp., COOSPAPERS, INC., an Oregon corp.; IDAHO BANK & TRIJST COMPANY, a banking corp.; and STEPHEN J. MATLOCK, individuallv and as President of Matlock Communications, Inc., and Glasqow Publishing Company, Defendants and Appellants. APPEAL FROM: District Court of the Seventeenth Judicial District, In and for the County of Valley, The Honorable Nat Allen, Judge presiding. COUNSEL OF RECORD: For Appellant: Jardine, Stephenson, Rlewett & Weaver; George N McCabe, Great Falls, Montana Gallagher, Archambeault & Knierim; Matthew W Knierim, Glasqow, Montana For Respondent: Habedank, Cumming, Rest, Maltese & Savage; Peter I- cr Maltese, Sidney, Montana 3 '.'-'a L I - , 5 Q Submitted on Briefs: Nov. 17, Decided: January 30, 1989 Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal from the Seventeenth Judicial District, in and for the County of Valley, concerns the District Court's denial of a motion to set aside an entry of default under Rule 55(c), M.R.Civ.P. The only issue is whether the lower court abused its discretion in denying the motion. F 7 e reverse. The relevant facts are as follows: respondents Cribbs, and Wrights, (Cribbs) agreed to sell their stock in Glasgow Publishing Company, a corporation, to Matlock Communications, Inc., owned by Stephen J. Matlock. Cribbs exchanged the company' s stock for promissory notes and other consideration from Matlock. The parties placed the stock i n escrow to secure the debt owed on the notes. Cribbs reqained control of the company when Matlock Communications failed to make the required payments. Crihhs then sued Matlack and Matlock Communications far money still due under the sales agreement. Cribbs joined appellant Idaho Bank and Trust Company (I.B. & T.) because Matlock had secured a loan from I.R. € i T. with assets owned by Glasgow Publishing Company. Crihhs' complaint contended that Matlock had no authority to encumher the assets, and sought a judgment voiding the security interest claimed by I.B. & T. On December 22, 1986, Cribbs served summons and complaint on I.B. & T. 's main downtown branch office in Boise, Idaho. I.B. & T. failed to answer or appear within 30 days. On February 5, 1987, the clerk entered default against I.B. & T. On March 6, 1987, before Cribbs had takkn any final iudqment, I.R. & T. filed a motion to set aside the default, a crossclaim, a counterclaim, and a third party complaint. I.B. & T. also submitted affidavits explaining their failure to respond to Cribbs' complaint. An employee in I.B. & T. 's branch of £ice swore that he delivered the papers to another employee for transfer to the main I.B. & T. office through the Rank's courier system. The other employee remembered receiving the papers with instructions for their delivery, but could not verify if she had channelled the papers into the courier system. The summons and complaint never arrived at the main office. I.R. & T. discovered their failure to answer or appear approximately one week after the clerk entered the default. One month after the entry of default I.B. & T. filed its motion, answer, crossclaim, counterclaim and third party complaint. I.B. & T. contends that the District Court abused its discretion in refusing to set aside the entry of default because I.B. & T. made the showing of good cause required by Rule 55(c), M.R.Civ.P. Cribbs respond that Rule 55(c) 's good cause should be equated with "excusable neglect" in Rule 60(b), M.R.Civ.P, and that I.B. & T. has failed to excuse its late response. The parties also disagree on whether I.B. & T.'s tardy response prejudiced Cribbs. First, Cribbs mistakenly contend good cause under Rule 55(c), M.R.c~v.P., equates to excusable neglect under Rule 60(b), M.R.Civ.P. Rule 55(c), M.R.Civ.P., provides that: For good cause shown the court may set side an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b). The majority view holds that: the "good cause" standard for setting aside a default entry is more flexible and lenient than the Rule 60(b) standard for setting aside a default judgment. 6 J. Moore, Moore's Federal Practice ¶ 55.10[1] and [2] (2d ed. 1983) : . . . The default entry is simply an interlocu~orv order that in itself determines no rights or remedies, whereas the default judgment is a final judgment that terminates the litigation and decides the dispute. Hertz v. Berzanske (Alaska 1985), 704 P.2d 767, 770. We agree that the good cause standard under Rule 55 (c) , M.R.Civ.P., should be applied more flexibly and leniently than the excusable neglect standard under Rule 60(b), M.R.Civ.P. Second, we hold that I.R. & T. made a sufficient showing of good cause in the lower court. To determine the existence of good cause, courts should consider: (1) whether the default was willful, (2) whether the plaintiff would be prejudiced if the default should be set aside, and (3) whether the defendant has presented a meritorious defense to plaintiff's claim. The court must also balance the interests of the defendant in the adiudication of his defense on the merits, against the interests of the public and the court in the orderly and timely administration of justice. 6 J. Moore, Moore's Federal Practice T 55.10[21, at 55-59 (?d ed. 1988) , and see Sony Corp. v. Elm State Electronics, Inc. (2nd Cir. 1986), 800 F.2d 317, 320 (in addition to three factors above, courts may consider whether there was a good faith mistake, whether a harsh or large judgment would result, the strong preference for adjudication on the merits, and resolution of douhts in favor of granting motion to set aside). I.R. & T. submitted affidavits that its failure to respond resulted from clerical error. Facing similar facts, one U.S. District Court agreed to set aside an entrv of default stating: The Court, of course, is not condoning the filing of a late answer, yet it is reluctant to enter a default judgment where, as here, there was not wilful abuse of its process nor apparent prejudice to the plaintiff. Wallace v. De Werd (D. V.I. 1969), 47 F.R.D. 4, 5. Here there is also a lack of willful abuse of the lower court's process and a lack of apparent prejudice. Cribbs argue that prejudice exists because reversal will further delay the case. F 7 e reject this contention. Prejudice from delay should be measured at the time the party moves to set aside an entry of default. Weighing the third factor in this case presents more difficulty. Cribbs contend I.B. & T. has failed to show a meritorious defense because Matlock could not have had authority to encumber the assets of Glasgow Publishing Company. I.B. & T. contends that the documents creating the security interest are regular on their face, and that Matlock provided documentation demonstrating that he was authorized to borrow for Glasgow Publishing Company as the Corporation's sole director. I.B. & T. also contends that the security agreement may be validated by the allegation that Glasgow Publishing Company received a monetary benefit from loans authorized by Matlock. Cribbs have responded to these contentions by arguing that Matlock never properly hecame sole director of the corporation, and that none of the proceeds of the loans benefited Glasgow Publishing Companv. Cribbs have presented evidence supporting their position. However, resolution of doubt in finding a meritorious case should be resolved in favor of I.B. & T. Meehan v. Snow (2nd Cir. 1981), 652 F.2d 274, 277. I.B. & T. has alleged facts which, if proven, provide a defense. Appellate courts reverse refusals to set aside entries of default on a showing of slight abuse of discretion by the lower court. 6 J. Moore, Moores Federal Practice 9 55.10[2], at 55-59. Given the lack of willfulness, prejudice, and the presence of factual allegations supporting a defense, we hold that the District Court abused its discretion in denying the motion. We reverse and remand for further proceedings. We Concur: Justices Mr. Justice L. C. Gulhrandson, dissenting. In my view, the appellant failed to present a meritorious defense. Even a cursory examination by the appellant of the documentation provided by Matlock, as the purported sole director of the Glasgow Publishing Company, would have revealed non-compliance with the requirements of the pertinent Montana statutes, including S 35-1-413 and 5 35-1-808, MCA. I would affirm the District Court's ordeq/	January 30, 1989
8e3c8044-ba80-4ecd-8bea-34ea41e1a342	LORASH v EPSTEIN	N/A	88-494	Montana	Montana Supreme Court	No. 88-494 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 MARION LORASH , Plaintiff and Appellant, -vs- LARRY D. EPSTEIN, and JAMES C. NELSON, d/b/a WERNER, NELSON & EPSTEIN, Defendants and Respondents. APPEAL FROM: District Court of the Ninth Judicial District, In and for the County of Glacier, The Honorable R.D. McPhillips, Judge presiding. COUNSEL OF RECORD: For Appellant: Sweeney & Healow; Kevin T. Sweeney, Billings, Montana For Respondent : Floyd D. Corder; Alexander & Raucus, Great Falls, 2 Montana 0 3 0 ~ C J 4 4 U W .- I -s- f . ! a c .-,I w Submitted on Briefs: Dec. 16, 1 9 8 8 .- 1 r - -; ic> L N ; 5 ",< - , -'T n - " UJZ Filed: 7 Z c n M 0 . =E Decided: January 27, 1 9 8 9 Clerk Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Appellant appeals the order of the Ninth Judicial District Court, Glacier County, Montana, granting the defendant's motion for summary judgment upon finding plaintiff presented no material facts proving that the defendants committed legal malpractice. We affirm. Appellant, Marion Lorash, the owner of a glass business in Cut Bank, Montana, entered into a partnership with one Chad Standish to operate an auto repair business in Browning, Montana. The partners contacted Wilbur Werner, a law partner in the firm of Werner, Nelson and Epstein, for the purpose o+ drafting a partnership agreement. The partnership agreement was prepared and executed in March of 1982. The partners constructed a building, in which they intended to operate the auto repair business, on land owned by Standish. The partnership began using the building for the auto repair business in August, 1982. By December, 1982, the partners were aware that the business was not going to succeed. They discussed ways in which the appellant could protect his interest in the partnership. They decided that the best way would be for the appellant to file a lien against the building and the land on which the building stood. In December of 1982 or January of 1983, appellant contacted defendant Epstein for the purpose of securing his interest in the labor and materials contributed to the building. Defendant Epstein agreed to prepare a mechanic's lien which would secure plaintiff's interest. Mr. Lorash provided a schedule of the labor and materials he supplied for the building and a property description. After appellant supplied the necessary data, defendant Epstein drafted the mechanic's lien which was then filed on March 18, 1983. Nothing further happened regarding the mechanic's lien until December, 1984, when the appellant was contacted regarding an incorrect legal description on the mechanic's lien which affected another person's property. Appellant contacted the defendant Epstein, who determined from an examination of the mechanic's lien statute and conversations with the title company manager that there was no problem regarding the validity of the lien. This information was communicated to the appellant. In March or April of 1985, appellant was notified that Mr. Standish had filed bankruptcy. Concerned with the effect of the bankruptcy on the mechanic's lien, appellant then contacted defendant Epstein. After consultation with his partner Mr. Nelson, defendant Epstein informed the appellant that due to a conflict of interest he was unable to represent him in foreclosing the lien. The conflict arose due to defendant Nelson's position as the county attorney and Mr. Epstein's position as deputy county attorney, and the fact the county attorney's office was conductinq an investigation in which the appellant was involved. The appellant then contacted another attorney in Cut Rank to attempt to foreclose the mechanic's lien and protect his claim in Mr. Standish's bankruptcy. That attorney was unsuccessful in establishing a priority claim based upon the mechanic's lien, due to the running of the statute of lirnj-tations under Montana law. As a result, appellant was only able to establish an unsecured claim in the bankruptc~i. action and received nothing when the hankruptcy court discharged his claim. Appellant then brought this legal malpractice action seeking the value of the lien, approximately $24,000, lost due to the alleged: (1) negligent withdrawal of counsel from representation, and (2) defendants' negligent failure to Foreclose the mechanic's lien. Defendants filed a motion for summary judgment citing five independent and separate grounds for d i smissing the action. The District Court, having reviewed the entire file and heard oral arguments, held there were no relevant factual matters in dispute and that defendants were entitled to judgment as a matter of law on both counts. Rule 56 (c) , M. R.Civ.P. , provides that summary judgment is appropriate when "[tlhe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Generally negligence issues will not he susceptible to summary judgment because of the factual issues involved in such cases. See Brohman v. State of Montana (Mont. 1988), 749 P.2d 67, 69, 45 St.Rep. 139, 141, and cases cited therein. In a summary judgment proceeding, plaintiffs are entitled to all reasonable inferences which may be drawn from the offered proof and which indicate any issue of fact which would thereby defeat the summary judgment motion. Brown v. Merrill, Lynch, Pierce, Fenner and Smith, Inc. (1982), 197 Mont. 1, 640 P.2d 453. Rowever, an issue of negligence cannot be inferred merely from the fact that a loss has occurred. Carlson v. Morton (Mont. 1987), 745 P.2d 1133, 44 St.Rep. 1929. To establish a professional negligence action "the plaintiff must prove that the professional owed him a duty, [and] that the professional failed to live up to that duty, thus causing damages to the plaintiff." Carlson, 745 P.2d at 1136. In pursuing a negligence or breach of contract action against an attorney, the plaintiff must initially establish the existence of an attorney-client relationship. The plaintiff must then establish that the acts constituting the negligence or breach of contract occurred, proximately causing damages to the plaintiff. The final requirement for the plaintiff is the need to establish "[tlhat 'but for' such negligence or breach of contract the client would have been successful in the prosecution or defense of the action." Christy v. Saliterman (Minn. 1970), 179 N.W.2d 288, 293-294. A. Duty to Foreclose the Mechanic's Lien The plaintiff in the case at bar has simply failed to establish an attorney-client re!.ationship which would require the defendants to foreclose the mechanic's lien. Montana has not recognized the doctrine of continuous representation, which may have required the defendants to continue to represent plaintiff regarding the mechanic's lien. Schneider v. Leaphart (Mont. 1987), 743 P.2d 613, 617, 44 St.Rep. 1699, 1703. To establish a duty owed to continue to represent the plaintiff, the plaintiff would need to show the existence of a retainer agreement or a specific agreement between the parties that the defendants would foreclose the mechanic's lien. We note that neither party cites any specific authority on the question of whether or not an attorney who drafts a mechanic's lien has a duty to foreclose that lien. Appellant claims he had used defendants' law firm for various dealings over a period of several years, both before and after the mechanic's lien was drawn. However, the appellant's deposition states he was not sure he "had call" to have an attorney prior to the drafting of the partnership agreement. Further, the first time he met defendant Epstein on a professional basis was when he contacted him regarding the drafting of the mechanic's lien. The appellant stated in his deposition he had no further contact with Mr. Epstein from the time he signed the lien, until he contacted him regarding the error in the property description, in early 1985. Also, appellant's deposition shows a retainer agreement did not exist between himself and the law firm. Q. The law firm of Werner, Nelson & Epstein were not on retainer to you or anything; it was just simply when you needed work done you called and asked if they could do it for you? A. Yes. That's correct. Even under the continuous representation doctrine, such an on and off history of representation would not establish a duty on the part of an attorney to monitor the activities of their clients. See, Shapero v. Fliegel (1987), 236 Cal.Rptr. 696, 699. This is particularly so where the attorney had acted as a scrivener in preparing documents which a client inferred they did not intend to use. Q. When you filed this Mechanic's Lien did you intend to foreclose on the lien? A. As a last resort, yes, I did. Q. Why did you wait until March of 1985 to begin any action on the foreclosure of the lien? A. Because I didn't want to use--- I didn't want that to keep him from being able to borrow the money to pay me off. Based upon the foregoing deposition testimony which the District Court had before it, we find the order granting summary judgment was proper. Appellant failed to establish the existence of a duty owing by the defendamts to the appellant to foreclose the mechanic's lien. B. Negligent Withdrawal of Counsel Appellant contends that the defendants negligently withdrew from their representation of appellant. This contention is fatally flawed, however, in light of the fact that no representation existed. Appellant asserts that this case involved a collection action and that the defendants were obligated to pursue the collection action to a conclusion once they accepted representation. 7 Arn.Jur.Zd, Attorneys at Law, S 211. This contention ignores the fact that the appellant himself forestalled the foreclosure of the mechanic's lien. Mr. Lorash acknowl-edges he did not intend to foreclose the 1.j-en except as a last resort. Further, he did not communicate a desire to foreclose the lien until he was notified that Mr. Standish was in bankruptcy. As Mr. Lorash had been informed of the two year statute of limitations which applied to the mechanic's lien, and was the party who forestalled its foreclosure, we find the defendants did not have a duty to foreclose the mechanic's lien. Further, representation had been terminated as to the mechanic's lien, pending further action on Mr. Lorash's part, and there could not be a negligent withdrawal. Having found that no duty existed for the defendants to foreclose the mechanic's lien, the parties' arguments whether or not the mechanic's lien involved in this case was valid and enforceable become moot. The decision of the District Court is affifmed. f" We concur: - 1 7 '	January 27, 1989
28b54a1a-ed81-4220-822c-e697cd44636e	LORENZ v ESTATE OF SCHILLING	N/A	88-394	Montana	Montana Supreme Court	I N THE SUPREME COIJRT OF THE STATE OF MONTANA 1 9 8 9 MONTE D. LORENZ, P l a i n t i f f and A p p e l ! ant., -VS- THE ESTATE OF L E S L I E S C H I L L I N G , D e c e a s e d , D e f e n d a 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 Seventh 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 R i c h l a n d , T h e H o n o r a b l e H.R. O b e r t , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : K a t h l e e n M. F r i t s c h , G l e n d i v e , M o n t a n a For R e s p o n d . e n t : P e t e r 0. Maltese, Sidney, ?lantana S u b m i t t e d on B r i e f s : D e c . 1 6 , 1 9 8 8 D e c i d e d : February 7 , 1 9 8 9 G L ' ' j l (i F i b d G LJ, I - - ) = r - , L L ) : i 0 " L A I C - - U - A - C l e r k Mr. Justice F. C. Mcnonough delivered the 0pini.on of the Court. This appeal involves a dispute over the condition of farm land owned by the defendant and leased by the plaintiff. Plaintiff Monte D. Lorenz appeals from the judgment of the District Court of the Seventh Judicial District, Richland County, entered after trial of the case to the court. The court ruled that Lorenz take nothing by his compl-aint, which the court then dismissed with prejudice. We affirm. Lorenz frames four issues on appeal: 1. Whether Mr. Schilling had a duty to disclose his use of Tordon on the fields. 2. Whether Mr. Lorenz proved by a preponderance of the evidence that there was a breach of the duty to disclose by Mr. Schilling. 3. Whether the court's decision was a result of passion rather than law. 4. Whether the court erred by finding Mr. Lorenz negligent for failing to test the soil for Tordon. In November of 1983, Lorenz contacted Leslie and Terry Schilling about leasing certain farm land owned by the Schillings. The parties met to negotiate the lease, but the content of those negotiations was disputed at trial. Both sides agree that Lorenz indicated he wished to raise sugar beets on the land during the coming year. According to the depositions of both Leslie and Terry Schilling, and Terry Schilling's testimony at trial, Leslie Schilling indicated to Lorenz during these initial negotiations that the herbicide Tordon had been applied to some of the land in question. According to the Schillings, it was suggested to Lorenz that he inquire as to the suitability of the Tordon-treated land for raising sugar beets. Lorenz allegedly replied that he could raise sugar beets on the land as long as "Cleanv--another particular brand of herbicide--had not been applied. Lorenz denies that the Schillings ever told him about the Tordon application. After these negotiations had taken place, Lorenz obtained a Farmers' Home Administration land lease form. In January of 1984, the parties again met, filled in the blanks of the lease form to reflect the terms they had reached earlier, and executed the lease. No mention was made of the subject of this controversy. In the spring, Lorenz had the soil on the leased acreage tested to determine what fertilizers should be used. He then planted sugar beets in three of the fields he had leased, including two fields that had been treated with Tordon. R v May, the beets in the two treated fields showed severe damage, and were replanted. In late June, the replanted fields again showed damage. Lorenz consulted with a field representative from Holly Sugar, who told him that the condition of the fields was consistent with Tordon damage. No production was had from the treated fields for that crop year. The lease was later terminated by agreement of the parties. Lorenz filed this action in September of 1984, alleging fraudulent misrepresentation on the Schillings' part in failing to disclose the Tordon application. After discovery and trial, the District Court issued its ruling denying any relief to Lorenz. This appeal followed. While counsel for Lorenz frames four issues in her brief on appeal, it is not necessary for us to examine each issue separately. Both sides agree that Leslie Schilling had a duty to disclose his application of Tordon to the fields in question. The next two issues, whether Lorenz proved his case by a preponderance of the evidence and whether the court was motivated by passion rather than law, can be rephrased as a single question. Did the District Court err in finding that Schilling disclosed the Tordon application during the lease negotiations? When reviewing a civil case tried to a court sitting without a jury, this Court will not substitute its judgment for that of the District Court functioning as trier of fact. Even when there is a conflict in the evidence, we will uphold the court's decision where there is substantial credible evidence to support its findings of fact and conclusions of a . Eliason v . Wallace (1984), 203 Mont. 358, 680 P.2d 573. The record shows that Lorenz, Leslie Schilling and Terry Schilling were present when the lease was negotiated. Leslie Schilling is now deceased, but testified in deposition prior to his death that he disclosed his use of Tordon to Lorenz, and suggested that Lorenz investigate the herbicide's possj-ble effects on sugar beets. Terry Schilling testified in deposition and at trial that her husband had indeed made that disclosure and suggestion. Over against this evidence was testimony by Lorenz that no such dj-sclosure had been made. The deposition testimony of Leslie Schilling, corroborated by his wife at trial, is "substantial" in that it would convince a reasonable person that the disclosure took place. See, Eliason, 680 P.2d at 575. Counsel for Lorenz has questioned the credibility of this testimonv by seeking to point out inconsistencies or lack of memory on the Schillings' part. However, there is also evidence of a lack of motivation for the Schillings to lie to Lorenz. The terms of the lease called for payment to the Schillings based on a share of the crop harvested from their land. As Leslie Schilling pointed out in his deposition, failure of Lorenz's crop would mean that the Schillings would not be paid. We conclude that there is substantial, credible evidence in the record to support the District Court's finding that Leslie Schilling disclosed his use of Tordon to Lorenz. Lorenz's claim of fraudulent misrepresentat!-on therefore fails. The fourth issue presented, that the court erred in finding Lorenz negligent in failing to have necessary soil tests performed, is at best an instance of harmless error. Counsel is correct in that the issue of Lorenz's negligence was not properly before the court. However, the court's statement was made in the context of its holding that the damage to the beet crop did not result from misrepresentation on the Schillings' part. No damages were awarded nor other penalty imposed. Affirmed . Justice - /,'	February 7, 1989
db7419ef-342d-439e-bfa5-c41b18890b4f	HICKS v GLACIER PARK INC	N/A	88-491	Montana	Montana Supreme Court	I N THE SUPREME COURT OF THE STATE OF MONTANA 1989 ROBERT H I C K S , C l a i m a n t and A p p e l l a n t , V S . GLACIER PARK, TNCORPORATED, E m p l o v e r , and CNA 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 W o r k e r s ' C o m p e n s a t i o n C o u r t of t h e S t a t e of M o n t a n a , 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 O F RECORD: For A p p e l l a n t : John H. B o t h e ; B o t h e & L a u r i d s e n , P . C . , C o l u m b i a F a l l s , M o n t a n a For R e s p o n d e n t : T o d d A. H a m m e r ; W a r d e n , C h r i s t i a n s e n , Johnson & B e r g , P . C . , K a l i s p e l l , M o n t a n a I - d 0 3 0 C3 , r , . . 4 Q I % d iL:? S u b m i t t e d on B r i e f s : , T a n u a r y 3.2, D e c i d e d f February 1 3 , 1 9 8 9 Mr. Justice John Conway Harrison delivered the Opinion of the Court. Claimant Robert Hicks appeals the -judgment of the Workers' Compensation Court which denied his claim for compensation benefits. Claimant was injured in a car accident which the Workers' Compensation Court concluded did not arise out of and in the course of his employment. We affirm. Briefly, the facts are as follows: Claimant was a seasonal worker in Glacier National Park employed by the respondent as a bellhop a . t the Many Glacier Hotel. While on duty on the evening of July 20, 1987, a guest of the hotel asked the claimant to drive his vehicle from an upper parking lot to the entrance of the hotel. Claimant agreed to this, but found the car had a weak battery. Claimant push-started the car and drove it from the parking lot to the hotel entrance. Claimant, who considered himself something of a mechanic, told the guest about the problem and informed him the car would have to be driven in order to charge the battery. Claimant also informed him the car would have to be moved because it was in a fire lane. The guest asked claimant to take care of the problem and claimant agreed. Claimant, with the assistance of the desk clerk, Luther Johnson, push-started the car. With Johnson as passenger, claimant drove the car through the parking lot at a high rate of speed, failed to stop at a stop sign, then continued to drive down the park road at an increasingly hiah rate of speed. Park enforcement ranger Dona Taylor saw claimant run the stop sign and exceed the posted speed limit. Taylor pursued the car, and used her emergency 1-ights to stop the claimant. Johnson testified that when he told claimant a ranger was behind them, claimant refused to stop, but instead he "put the pedal to the metal. " Officer Taylor could not catch up to the car, even traveling to speeds of 75 miles per hour. On the twisting mountain road, claimant eventually lost control of the car, and caused the vehicle to leave the road and strike a tree. The accident site was approximately two and one-half miles from the hotel. Officer Taylor calculated cl-aimant's speed to be 97 miles per hour when the accident happened. Claimant suffered injuries to his head, knee and foot. The Workers' Compensation Court ruled claimant's injuries did not arise out of and in the course of his employment. The court also found that, even if claimant had been acting within the scope of his employment when he initially drove the vehicle, he deviated from the scope of his employment when he decided to evade the law enforcement officer. Claimant now argues the court erred because it denied compensation for injuries sustained while performinq acts in an unauthorized manner, as distinguished from the performance of unauthorized acts. Claimant argues the performance of his duties in a negligent or unlawful manner does not constitute a deviation from the course of his employment. While we agree with this general statement of the law, we disagree with its applicability to this factual situation and with claimant's analysis of the Workers' Compensation Court's judgment. The court concluded claimant's injuries did not arise out of and in the course of his employment. The court addressed the issue of compensability further by assuming the act of driving a guest's car to charge the battery was within the course of claimant's employment. The analysis was academic and does not afford a basis for appeal. In Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 88, 580 P.2d 450, 453, we stated the following rule: "It is a generally recognized principle that when an employee departs from the area where his job requires him to be, to pursue an objective in nowj-se essential to or incidental to any service he - is paid to perform, tFe continuity of the employment is severed, and remains severed until he now returns to the point - - of deviation from the path of duty, to - - where in the performance of his duty he is required to be." (Emphasis original.) In Steffes we noted that in determining whether to apply the deviation rule, consideration is given to (1) the character of the employee's deviation, whether pronounced or inconsequential; ( 2 ) the materiality and purpose of the deviation; (3) the reasonableness of the employee's behavior in light of all the circumstances; (4) whether the deviation caused or contributed to the injuries suffered; and (5) the time and space in which the deviation occurred. Steffes, 580 P.2d at 454, citing Blair, Reference Guide to Workmen's Compensation Law, 5 9.25. Claimant's suggestion that he was benefiting his employer by driving the guest's car down a winding mountain road and evading a law officer at speeds reaching 90 miles per hour strains credulity. According to hotel's operations manual, which claimant denied receiving, a bellhop's responsibilities included: meeting with tour guides; transporting luggage to guests' rooms; escorting guests to assigned rooms; and delivering ice, rollaways, and extra towels to guests' rooms. Of importance to this appeal is the foll.owing provision: PARKING CARS FOR GUESTS: - Guest is to park their (sic) own vehicle, advise of proper area. Nothing in the operations manual authorized the claimant to drive the guest's car. Additionally, claimant admitted he did not have permission from a supervisor to drive the guest's car. Claimant argues, however, that his job was to satisfy the guests, and he was doing this when he took the car to "charge the battery." Claimant supports his argument by pointing to the following language in the operations manual: 8. AELLMEN SHOIJLD BE OUT FRONT, ANTICIPATING THE NEXT CHECK-INAND GIVING SERVICE TO GUESTS. DO NOT SIT AROUND BELL STAND. THERE IS ALWAYS SOMETHING TO DO, KEEP BUSY. (Emphasis original.) and the employee handbook: As a park concessioner, Glacier Park, Inc.'s primary responsibility is to provide quality service to all who come to visit the wilderness mountain area located in spectacular Glacier National Park, Montana. Essentially, claimant argues his job was to do anything to serve the guests. We reject this interpretation of claimant's scope of employment. Cl-aimant was employed as a bellhop. He was not employed as a valet parking lot attendant, a mechanic, a delivery person or a race car driver. Claimant worked for a hotel, which was not in the automotive or delivery service. We have held that where some reasonably immediate service to the employer can be discerned, the claim should be sustained; where there is no reasonably immediate service, the claim should be denied. Steffes, 580 P.2d at 453, citing Guarascio v. Industrial Accident Board (1962), 140 Mont. 497, 501, 374 P.2d 84, 86. The Workers' Compensation Court concluded that while it is "arguable that charging a car battery for a hotel guest might benefit the employer in some sense," it is clear to this Court claimant had deviated from the course of his employment. The accident happened nearly two and one-half miles from where claimant was supposed to be stationed. Claimant was driving a guest's car at dangerous speeds on a twisting mountain road in the dark of night, and was attempting to evade a law enforcement officer. Additionally, the injuries were the direct result of claimant's deviation from the course of his employment. As the Workers' Compensation Judge noted, "[tlhe direct cause of claimant's injuries was his reckl-ess abandonment of common sense. . . " The employer received no reasonably immediate service or benefit from the claimant's conduct and the claim for compensation was properly denied. The judgment of the Workers ' Compensati~n Court is a£ f irmed. We concur:	February 13, 1989
c210f25e-ea88-47f0-9869-1650c23b9956	ESTATE OF STONE	N/A	88-277	Montana	Montana Supreme Court	NO. 88-277 IN THE SIJPREME COURT OF THE STATE OF MONTANA 1989 IN THE MATTER OF THE ESTATE OF ROBERT E. STONE, deceased. APPEAL FROM: District Court of the Fifth Judicial District, In and for the County of Madison, The Honorable Frank Davis, Judge presiding. COUNSEL OF RECORD: For Appellant: David N. Niklas, Helena, Montana C. Bruce Loble, Hel.ena, Montana For Respondent: DavFd A. Grauman; Jardine and Grauman, Whitehall, Montana Submitted on Briefs: Dec. 9, 1988 3 0 LC If: Decided: January 27, 1989 Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal involves a dispute over fees awarded to the personal representative of an estate who was removed for cause. Petitioners Sherrie Schandelmeier and Sam Wonderly, successor co-personal representatives of the Estate of Robert Emerson Stone, appeal from an order of the District Court of the Fifth Judicial District, Madison County. On remand from a previous appeal to this Court, the District Court was instructed to remove R. Thomas Garrison as personal representative of the Estate and determine the fee due Garrison for his services. The court ordered: (1) Garrison is entitled to $20,000 for services rendered as personal representative and attorney for the Estate, and any amount previously paid to him in excess of that sum must be reimbursed; (2) Garrison is entitled to $3,814 to pay for the services of an attorney in resisting his removal as personal representative; and (3) Garrison must pay the Estate $15,000 as his contribution to lost interest and tax penalties occasioned by his administration. We reverse and remand. Petitioners present four issues in this appeal: 1. Whether the prior personal representative and attorney for the Robert Emerson Stone Estate was entitled to combined fees of $20,000, as allowed by the District Court? 2 . Whether it was proper for the District Court to allow payment of $3,814 in Estate funds to the attorney for the former personal representative for his services in the removal litigation? 3. Whether the District Court, after hearing objections to the Accountinq of the prior personal representative, should have made a determination of damages to the Estate instead of merely ruling on the proper amount of attorney's fees and personal representative's fees? 4. If the ruling on the issue of damages was within the scope of the hearing, whether the amount of damages awarded was sufficient? The facts of this case were discussed in our prior opinion, Matter of Estate of Stone (Mont. 1986), 727 P.2d 508, 43 St.Rep. 1760. They will be reiterated here only where relevant. Our instructions on remand directed the District Court to remove Garrison and determine his fees. Once removed by the court, Garrison submitted his Final Account of all receipts and disbursements during his administration of the Estate. Petitioners filed an objection to the Final Account, objecting specifically to the fees Garrison paid himself as personal representative and attorney for the Estate, and to the fees paid to a law firm Garrison employed to defend him in the removal suit. Petitioners contended that Garrison was not entitled to a fee, because his administration was harmful to the Estate. They also contended that Garrison's decision to resist removal was not made in good faith, and he was therefore not entitled to pay his attorneys out of Estate funds. Garrison had paid himself a total of $26,515 for his services as personal representative and attorney for the Estate. After hearing was had on Petitioners' objections to the Final Account, the District Court reduced that fee to $20,000, and Petitioners appealed. The fees challenged by Petitioners are outlined by sections of the Uniform Probate Code as adopted in Montana. The personal representative's fee is covered in 5 72-3-631, MCA, which sets a maximum based on the size of the estate, and directs that in any case the fee shall he "reasonable." Section 72-3-633, MCA, states that the fee for an attorney engaged by the estate shall not exceed I+ times the compensation allowed the personal representative. Section 72-3-632, MCA, deals more explicitly with litigation expenses incurred by the personal representative on behalf of the estate, and allows for a "reasonable" attorney's fee for actions maintained in good faith. Section 72-3-634, MCA, allows any person with an interest in the estate to petition for review of fees paid to a personal representative, attorney or other person rendering services to the estate. The comments to the Uniform Probate Code written by the Code Commission state that one important feature of the UPC is that a personal representative has initial control over fees paid for services to the estate, including his own fee. Formerly, fees were set by the probate court. Because the personal representative would control the "purse strings" of the estate and essentially pay himself, the drafters of the UPC Felt it important to allow for review of those fees. This Court has not yet had the opportunity to define a standard of review for cases of this type. However, because the UPC is a uniform act, we can look to decisions from other jurisdictions utilizing the same statutory scheme. The review of fees paid or taken by a personal representative is left to the sound discretion of the District Court. We will not overturn that decision absent a showing of abuse of discretion, and the court's findings of fact will be upheld unless clearly erroneous. Estate of Davis (Me. 1986), 509 A.2d 1175; Matter of Estate of Baird (Mich. 1984), 357 N.W.2d 912. Once review of a fee is sought by one with an interest in the estate, the personal representative has the burden of proving that the services rendered were necessary, and the fee charged was reasonable. Baird; Matter of Estate of Vertin (N.D. 1986), 381 N.W.2d 199. With regard to legal services, a reasonable fee should be ascertained by considering the time spent, the nature of the service, and the skill and experience required. Matter of Weaver's Estate (Mich. App. 1982), 327 N.W.2d 366. A crucial factor for determining the reasonableness of any challenged fee is whether the services rendered were beneficial to the estate. Matter of Kjorvstad's Estates (N.D. 1980), 287 N.W.2d 465. We agree with the view taken by the courts of the State of Michigan that when a personal representative's negligence causes harm to the estate, he or she may be deprived of all or part of their fee. Matter of Estate of Thacker (Mich. App. 1984), 358 N.W.2d 342. In the present case, petitioner Sherrie Schandelmeier is one of the devisees under the will, and therefore certainly has an interest in the Estate. Petitioners' objection to the Final Account challenged the fees taken by Garrison and those paid to his attorney, thereby requiring a review of those fees under 72-3-634, MCA. The burden was therefore upon Garrison to show that the fees paid to himself and to his attorney were reasonable, and were for the purpose of obtaining necessary services for the Estate. The record indicates that he failed to do so. Beyond submission of the Final Account, which merely lists the Estate ' s income and expenditures, Garrison adduced virtually no evidence concerning the reasonableness of the fees. While there is some evidence from the initial removal hearing showing Garrison's work product, he has made no attempt to show the value of those services to the Estate or their relation to the fees he took. Under cross-examination by counsel for Petitioners, Garrison testified that he kept no time logs of his activities as either personal. representative or attorney for the Estate, and was able to give only a very rough estimate of the time he devoted to these tasks. Garrison's argument for his entitlement to the fees he charged rests on the premise that they were "the standard amounts that are allowed." This is fundamentally incorrect. Sections 72-3-631 and 72-3-633, MCA, provide that fees for personal representatives or attorneys shall - not exceed certain amounts based on the size of the estate. Garrison took not a standard fee, but the maximum fee under each section. Given Garrison's removal for cause and his nearly complete failure to justify his fees when challenged, the record is patently insufficient to support the District Court's award. In our previous opinion, we held that Garrison should be removed as personal representative and attorney for the Estate because of shortcomings in the discharge of his duties: 1. Failure to invest excess Estate monies in an interest-bearing account. -l &. Failure to pay any portion of Montana inheritance tax due when Estate monies were available to do so. 3. Failure to file the Estate's inventorv and appraisement for over four years after his appointment as personal representative. 4. Active misleading of a devisee concerning the disposition of the main Estate asset. The present record also demonstrates a remarkable failure by Garrison to complete his work properly, and a nearly complete failure to do so in a timely fashion. Simple arithmetic indicates that Garrison's failure to invest Estate monies resulted in lost interest, and his failure to pay taxes completely or in part resulted in the imposition of penalties and the accrual of interest on unpaid amounts. These failures alone brought calculable harm to the Estate, which calls for reduction or even elimination of Garrison's fee. As to the fees paid to Garrison's attorney, under 5 72-3-632, MCA, such fees are to be reimbursed only if they were incurred in an action pursued in good faith. The District Court's ruling on these fees was based on Finding of Fact No. 7 , which states that Garrison was obligated to resist removal under the decedent's will. We find no such language in the will, and hold this finding to be clearly erroneous. R.T. Garrison was sufficiently remiss in performing his duties as personal representative and attorney for the Estate of Robert E. Stone that he was removed for cause. He failed to present meaningful evidence to justify the fees he paid himself when those fees were challenged. The fees he claimed for the services of an attorney in resisting removal were allowed on the basis of a finding of fact that is clearly erroneous. On this record, the District Court's award of $20,000 was a manifest abuse of discretion. The award of $15,000 to the Estate as "reimbursement" for tax penalties and interest was also inappropriate. The objection filed by Petitioners sought review of Garrison's fee, but did not mention any liability that might be imposed for his actions. The court did not have issue jurisdiction on the question of Garrison's liability for his actions, because that issue was not placed before the court in the pleadings. The award of "reimbursement" was therefore error. See, In re Marriage of DiPasquale (Mont. 1986), 716 P.2d 223, 43 St.Rep. 557. We reverse the decision of the District Court as clearly erroneous and an abuse of discretion, and remand for retrial of the fee dispute. Reversed and remand.&. We concur: A u Justice	January 27, 1989
6f715280-db67-4cae-ab45-7ecebf1ac16b	RAMAGE v DEPARTMENT OF REVENUE	N/A	88-220	Montana	Montana Supreme Court	NO. 88-220 & 88-119 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 JOHN F. RAMAGE and ANDREW E. WILSON, Petitioners and Appellants, DEPARTMENT OF REVENIJE OF THE STATE OF MONTANA, Respondent and Respondent. *************** ROSALIE WOODHALL, Petitioner and Appellant, DEPARTMENT OF REVENUE OF THE STATE OF MONTANA, Respondent and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yel-lowstone, Honorable G. Todd Raugh, Judge presiding (88-119) District Court of the First Judicial District, In and for the County of Lewis and Clark, Honorable Henry Loble, Judge presiding (88-220) COUNSEL OF RECORD: For Appellants: Terry L. Seiffert, Billings, Montana (Rosalie Woodhall) Curtis E. Larsen, Jackson, Murdo, Grant & Larsen; + Helena, Montana (John F. Ramaqe & Andrew E. Flilson) cL. C3 3 Fop 3espondent: c-3 1 ' 1 - Paul Van Tricht, Helena, Montana tr, <- 1 Ll 0 L L - 2 1 : LL! . - > -f m . ; b ) LL - - Submitted on Briefs: October 6, 1988 c-> g Decided: February 3, 1989 0 2 L L 'JJ+ F i l e d : , z 0 C3 -- w - d Mr. Justice Wj.lliam E. Hunt, Sr., delivered the Opinion of the Court. Appellants in this consolidated action appeal from District Court orders upholding the denial of their applications for original all-alcoholic beverage licenses by the Department of Revenue of the State of Montana (DOR). We affirm. Appellants Ramage and Wilson and appellant Woodhall raise the following issue for review: 1) Did the respective District Courts err in finding that substantial credible evidence supported DOR's denial of their applications for liquor licenses? Ramage and Wilson present two additional issues for our consideration: 2) In the processing of an application for a liquor license, when must DOR' s investigation of the applicant and the proposed premises be completed? 3) Does DOR have independent authority to weigh the evidence pertaining to public convenience and necessity when no protests from the public regarding the issuance of a liquor license are filed with the agency? On March 14, 1985, John F. Ramaqe and Andrew E. Wilson filed an application with DOR for a Yellowstone County quota area liquor license. Ramase and FJllson proposed to use the license for a bar called The Hanger that they planned to construct on the 8400 block of Grand Avenue, a little more than 5 miles outside the city limits of Billings. In April, 1985, in response to DOR's request for evidence in support of public convenience and necessity, Ramage and Wilson submitted petitions signed by approximately 100 Billings area residents. The petitioners asserted their belief that the public need called for a new cocktail lounge and dance cluh at the proposed location of The Hanger. Thereafter, DOR published notice of the application in the Billings Gazette. The notice, among other things, invited interested persons to file written protests against. the issuance of the license. No protests were filed with DOR. Ramage and Wilson proceeded with the remodeling of the proposed premises. Refore the work was completed, however, fire destroyed the structure. The cause of the fire was unknown. After the fire, Ramaqe and Wilson commenced reconstruction of the building. Meanwhile, in July, 1985, DOR received two more applications for Yellowstone County liquor licenses for establishments to be located on the 8400 block of Grand Avenue. One application was from appellant Rosalie Woodhall. Woodhall desired the license for the operation of a proposed bar called R & R Store and Lounge. On October 18, 1985, the city of Billings annexed the area surrounding the proposed taverns. The annexation resulted in the incorporation of the sites of the proposed bars into the Billings city limits and the city liquor license quota area. Prior to the annexation, on October 1, 1985, DOR's TJicense Bureau Chief issued notices to all three applicants, informing them that their applications were denied because issuance of liquor licenses for their proposed premises was not justified by public convenience and necessity. Each notice stated: The location of your proposed premises is in close proximity to three existing establishments licensed for the sale and service of all alcoholic beverages for consumpt.ion on the premises. The service area surrounding the proposed premises for licensing is sparsely populated and the demand for all-beverages sale and consumption does not warrant the issuance of additional all-beverages licenses at this time . All three applicants requested a hearing on the decision. After the hearings, the hearing examiner issued proposed findings of fact, conclusions of law and orders, denying all three applications. Appellant Woodhall and appellants Ramage and Wilson filed exceptions to the proposed orders. Oral arguments were held before the Director of DOR. In the fall of 1986, the Director issued the final department decisions, modifving and adopting the hearing examiner's proposed orders. The Director denied the applications because the proposed bars were not justified by public convenience and necessity and the proposed premises were inside the Billings quota area which was full. Ramage and Wilson filed a petition for judicial review with the First Judicial District Court, Lewis and Clark County. The District Court denied the petition and affirmed DOR's final decision. Woodhall filed a petition for judicial review with the Thirteenth Judicial District Court, Yellowstone County. On December 12, 1986, the District Court remanded the petition for a redetermination of the public convenience and necessity issue. On April 13, 1987, the hearing examiner entered supplemental findings of fact, conclusions of law and proposed order. The hearing examiner concluded that Woodhall's proposed R & R Store and Lounge failed to meet the statutory requirements for public convenience and necessity. Woodhall filed exceptions to the proposed order but did not request oral argument. On July 13, 1987, the Director rejected Woodhall's exceptions and adopted the hearing examiner's supplemental findings, conclusions and order. Woodhall again submitted the case to the Yellowstone County District Court. The District Court affirmed the Department's final decision. Woodhall filed an appeal of the District Court order, as did Ramage and Wilson. Upon motion by DOR, the appeals were consolidated into one action. Both District Courts upheld DOR's denial of the appellants' liquor license applications on the ground that the issuance of such licenses would not be iustified by public convenience and necessity. Appellants argue that their respective District Courts erred in finding that DOR's denial was supported by substantial credible evidence. The Montana legislature has delegated the administration of the Montana Alcoholic Beverage Code, S S 16-1-101 through 16-1-411, MCA, to DOR. Section 16-1-301, MCA. DOR's powers include the ability to issue liquor 1-icenses. Section 16-1-302 ( 8 ) , MCA. DOR may issue a license to any person it approves as fit and proper to sell alcoholic beverages, as long as the number of licences do not exceed quota limitations. Section 16-4-201, MCA. In addition, DOR must find that the issuance of such license is justified by public convenience and necessity. Section 16-4-203, MCA. Public convenience and necessity is not defined in the statute books. Nor can a precise definition of the phrase be found in agency regulations. This Court has acknowledged the diffic~ilties inherent in defining the term. In Baker Sales Barn, Inc. v. Montana Livestock Commission (1962), 140 Mont. 1, 12, 367 P.2d 775, 781, we recognized that whether an application is justified by public convenience and necessitv depends on the facts of each case. Because the determination of public convenience and necessity involves such a fact-intensive n q u r it is not necessary that DOR adopt rigid rules defining the term. " [Tlhe choice made between proceeding by general rule or by individual, - ad - hoc litigation is one that lies primarily in the informed discretion of the administrative agency." NLRB v. Bell Aerospace Co. (1974), 416 U.S. 267, 293, 94 S.Ct. 1757, 1771, 40 L.Ed.2d 134, 153 (quoting SEC v. Chenery Corp. (1947), 332 U.S. 194, 203, 67 S.Ct. 1575, 1580, 91 L.Ed. 1995, 2002). DOR1s use of the adjudicative process to determine whether applications for liquor licenses are warranted by public convenience and necessity is not, as Ramage and Wilson argue, an invalid exercise of rulemaking authority. Ramage and Wilson also argue that DOR is left completely unguided by its failure to adopt rules precisely defining public convenience and necessity. This is not so. In previous administrative decisions, DOR established standards for use in public convenience and necessity determinations. In the VFW Case (1986), DOR No. 85-P-011, 10, the Director delineated these guidelines when he quoted favorably from a prior proposed order: [PI ublic convenience and necessity are advanced where the issuance of the license will materially promote the public's ability to engage in the licensed activity. This determination involves an evaluation of a variety of criteria, includinq inter alia the business abilities and character of the applicant, the demand for services in the area to be served, the impact on existing purveyors, and a n : 7 adverse impact on the area to be served. No single factor is a necessary or sufficient indicator of public convenience and necessity . . . Because DOR has established criteria to guide its determinations of public convenience and necessity, we need not fear arbitrary decisions subject only to the whim of the agency. The District Courts did not err in concluding that the findings of fact made by the hearing examiner and adopted by the Director were supported by substantial credible evidence. At both hearings, DOR submitted evidence through it-s investigators Willems and St. John. The investigators' testimony indicated that the proposed sites were located in rural, sparsely populated regions. Further testimony and documentary evidence established that in October, 1985, three bars already served the area surrounding the sites of appellants' proposed premises. In addition, the records showed that since 1980 at least four bars located in the same area as the appellants' establ-ishments that had been originally licensed under the Yellowstone County quota area were later annexed into the city quota area. After the annexation, the licenses of these four bars were transferred to more populous areas of the city. Judical review of an administrative agency's factual findings is quite narrow. A court reviewing an agency action may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. Section 2-4-704(2), MCA. Findings of fact will be upheld unless clearly erroneous. Facts supported by subtantial credible evidence in the record are not clearly erroneous. Section 2-4-704 (2) (e) , MCA, construed - in Billings v. Billings Firefighters Local No. 521 (1982), 200 Mont. 421, 431, 651 P.2d. 627, 632. The testimony and documents introduced through inspectors Willems and St. John constitute substantial credible evidence that supports DOR's findings of fact. Whether the substantial credible evidence established by DOR demonstrates that the issuance of liquor licenses to the appellants was not justified by public convenience and necessity is a question of law. Judicial review of legal questions is much broader than judicial review of factual issues. We will not hestitate to overturn an agency's legal conclusion that is characterized by an abuse of discretion. Section 2-4-704 ( 2 ) ( f ) , MCA. The records demonstrate a sparse population, the existence of other bars in the immediate area and a history of license transfers from outlying regions to the inner city. These facts indicate a lack of public demand for additional taverns in the area. Without a showing of public demand, public convenience and necessity cannot be justified. DORIS concli~sion that issuance of liquor licenses to the appellants was not warranted by public convenience and necessity was not. therefore an abuse of discretion. The District Courts did not err in upholding the agency's decision to deny the applications. Ramage and Wilson contend that DOR abused its discretion and exceeded its statutory authority by failing to make an investigation and determination of their qualifications within 30 days of receipt of their completed application. They argue that DOR therefore is precluded from denying their application. Montana law requires DOR to thoroughly investigate a liquor license applicant as well as the premises of the proposed bar. Section 16-4-402(2), MCA, provides: Upon receipt of a completed application for a license under this code, accompanied by the necessary license fee or letter of credit as provided in 16-4-501 (7) (f) , the department shall within 30 days make a thorough investigation of all matters pertaining thereto and shall determine whether such applicant is qualified to receive a license and his premises are suitable for the carrying on of the business and whether the requirements of this code and the rules promulgated by the department are met and complied with. Ramage and Wilson argue that DOR failed to comply with S 16-4-402(2), MCA, because it failed to conduct a final investigation within 30 days after the paperwork for their application had been submitted. We do not agree. Section 16-4-402 (2) , MCA, requires DOR to determine both that the applicant is qualified to receive a license and that the premises are suitable for carrying on the business of selling alcohol. In addition, agency requlations mandate that, before a determination of suitability can be made, a health and safety inspection 0.F the proposed establishment must be conducted. Section 42.12.122, ARM. Such an inspection cannot take place before construction of the building is completed. Therefore, the 30-day investigative period required by S 16-4-402(2), MCA, does not begin to run until the applicant has submitted all the required paperwork - and the proposed establishment has been constructed. In the present case, Ramage and Wilson submitted the paperwork required for application in April, 1985. However, as of October 1, 1985, the date upon which the application was denied, the building proposed to house The Hanger had not been completed. Hence, DOR did not abuse its discretion by failing to issue or deny the application 30 days after the paperwork had been submitted because the proposed establishment had not been constructed by that time. Ramage and Wilson next argue that once they submitted evidence in support of a showing of public convenience and necessity and no public protests were received, DOR was required to automatically approve their application. They maintain that DOR has no independent authority to weigh the evidence pertaining to public convenience and necessity when no protests from the public regardinq the issuance of a license are filed with the department. This argument is totally without merit. As noted previously, the legislature has delegated to DOR the power to issue liquor licenses. Section 16-1-302 (8), MCA. Before a License may be issued, DOR must determine that its issuance is justified by public convenience and necessity. Section 16-4-203, MCA. In order to make this determination, DOR must independently weigh the evidence submitted by the applicants. The lack of public protest does not extinguish this duty. Ramage and Wilson also argue that the time for determining the quota area for a liquor license application is the date the application is submitted, not the date the application is approved or denied. Because we hold that the District Courts did not err in upholding DOR's decisions to deny the applications on the basis of public convenience and necessity, we need not examine this issue. We affirm the District Courts. / Justices /	February 3, 1989
c9aba422-b755-42b7-8d6f-2bee58ba472c	HARTMAN v STALEY CONTINENTAL	N/A	88-303	Montana	Montana Supreme Court	No. 88-303 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 8 DONALD J. HARTMAN, Claimant and Respondent, -VS- STALEY CONTINENTAL, Employer, and NATIONAL UNION FIRE INSURANCE, Defendant and Appellant. APPEAL FROM: The Workers' Compensation Court, The Honorable ~imothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Marra, Wenz, Johnson & Hopkins; Gary L. Green, Great Falls, Montana For Respondent: Erik B. Thueson, Helena, Montana Submitted on Briefs: Nov. 3, 1 9 8 8 . J - L . > ~~1 Decided: February 16, 1989 0 a . . I - . ,.- ~ s e a ~ - . - , i o LL 4 - - ,-c ( ' - ? ' 2 : 2 W L7 & m 0 ca _- --- ik -- - . 3 Clerk Mr. Justice William E. Hunt, Sr. , delivered the Opinion of the Court. Staley Continental and National Union Fire Insurance appeal the decision of the Workers' Compensation Court, awarding Donald J. Hartman, the claimant, $36,625.00 in permanent partial disability benefits, $13,690.60 in attorney fees and $1,915.29 in costs. We affirm and remand this case to assess reasonable attorney fees and costs in connection with this appeal and in accordance with S 39-71-611, MCA (1985). The two issues raised on appeal are: (1) Whether substantial, credible evidence supports the klorkers' Compensation Court's award to the claimant of $36,625.00; (2) Whether the Workers' Compensation Court erred in awarding the claimant $13,690.60 in attorney fees and $1,915.29 in costs. Staley Continental, a company that sells food, paper products and other supplies to restaurants, hospitals and nursing homes, hired Donald J. Hartman, the claimant, in 1980 as a sales representative. Hartman's responsibilities for Staley Continental include developing and servicing new accounts in the Hi-Line area. Hartman drives over 750 miles a week in the course of his employment and works 12 to 15 hours a day, four days a week. Half of his time is spent driving and seeing his clients and the other half is spent doing the necessary paper and computer work to ensure that the clients receive their orders. Hartman's starting salary with Staley Continental in 1980 was approximately $1,100 per month. His income has gradually increased, and in 1987 he made approximately $63,000 plus substantial frjnqe benefits. Hartman contributes the majority of his success to the Hi-Line area, stating that the area is sparsely populated and generally ignored by food service industry people and therefore he is not faced with competition. He also contributes his success to his relationship with his customers which he has developed over many years. On September 22, 1980, while performing his duties for Staley Continental, Hartman was involved in an automobile accident. This accident resulted in lasting, but not disabling injuries. As a result of the 1980 accident, Hartman suffered injuries to his lower back and neck, hut Hartman testified that the accident caused no problems "whatsoe~rer" in his job performance for Staley Continental. Hartman filed a workerst compensation claim for this accident. This claim has been settled and is not at issue in this appeal. On October 28, 1985, Hartman was involved in a second automobile accident within the course and scope of his employment. This accident exacerbated Hartman's previous existing neck injury. A physician, Dr. Swift, examined Hartman after the 1985 accident and found that Hartman sustained a musculoligamentous sprain to his neck. As a result of this 1985 accident, Hartman claims that he is entitled, under §§ 39-71-705 through -708, MCA (1985), to 500 weeks of permanent partial disability. On May 10, 1988, the Worker's Compensation Court issued its findings of fact and conclusions of law and concluded that Hartman was entitled to 250 weeks of permanent partial disability benefits at a rate of $146.50 per week, beginning on the date of injury. The court also concluded that Hartman was entitled to an award of reasonable costs and attorney fees pursuant to S 39-71-611, MCA (1985). On May 24, 1988, the court concluded that Hartman was entitled to reasonable attorney fees of $13,690.60 and $1,915.29 in costs. National Union Fire Insurance, the defendant, appeals. The first issue raised on appeal is whether substantial, credible evidence supports the Workers' Compensation Court's award to Hartman of $36,625.00. The court's findings, which are clearly set forth in the record, are based upon testimonies from Hartman, Dr. Swift, and two vocational rehabilitative counselors. At the October 13, 1987 proceedings, Hartman testified that as a result of the 1985 accident the pain in his neck has increased; his daily work schedule exacerbates his neck injury; his driving has been hampered to the point that it has become dangerous for him to drive at times; and he has practically given up his hobbies and recreational activities because of the pain that such activities cause. In an attempt to alleviate his neck condition, Hartman testified that he has taken several different medications, undergone cervical traction and chiropractic manipulations, and has gone weekly, when allowed by his work schedule, to a physical therapist. None of the above treatments have been successful for Hartman in providing permanent relief for his neck condition. The physical therapist stated, in a letter to Dr. Swift, that " [p] rogress has been slow and variable, and it appears to he related to his work and the inconsistency of his therapv attendance which is because of his work schedule as well." Dr. Swift testified that, based on a reasonable degree of medical certainty, Hartman has one of three options if he is to qet some relief: (1) quit his present job and take on new employment that might not exacerbate his condition; (2) cut down on the number of hours that he works and the physical driving distances that he is presently required to do; or (3) transfer to some other job within his current company that would not require driving. Hartman testified that as a result of the detrimental emotional and physical consequences he suffers from the 1985 accident, he is not going to continue working at his present job. He also testified that the reason he has continued working after this accident, despite his injuries, is because of his financial obligations and because he did not become half-vested in his company's profit-sharing and retirement programs until May 20, 1988. In light of the above, the court found that Hartman cannot emotionally or physically continue with his present employment much longer. The Workers' Compensation Court appropriately applied the law in effect at the time of Hartman's accident. Trusty v. Consolidated Freightways (1984), 210 Mont. 148, 151, 681 P. 2d 1085, 1087. The court then determined, based upon the information above, that Hartman was entitled to an award of permanent partial disability benefits pursuant to S § 39-71-705 through -708, MCA (1985). The court first noted that permanent partial disability is defined in S 39-71-116(12) as: a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence. The court then noted that in Montana a partially disabled claimant, injured prior to the enactment of the 1987 amendments, may elect benefits under either § 39-71-703, MCA, to recover actual loss of earning capacity, or §§ 39-71-705 through -708, MCA, which purportedly indemnifies a claimant for possible loss of future earning capacity, regardless of whether an actual loss in earning capacity is demonstrable. McDanold v. R.M. Transport, Inc. (1984), 208 Mont. 470, 476-77, 679 P.2d 1188, 1191. The court recognized that in this case Hartman proceeded under S S 39-71-705 through -708, MCA . The specific statute pertaining to Hartman's type of permanent partial injury is S 39-71-706, MCA (1985). This statute provides in pertinent part that Ciln all other cases of permanent injury less than total not included in the schedule provided for in 39-71-705, the compensation for partial disability shall bear such relation to the periods stated in the schedule provided for in 39-71-705 as the disabilities bear to those produced by the injuries named in the schedule or to partial disability (500 weeks). The court recognized that the maximum allowable entitlement that a claimant could receive under this section for an injury occurring on October 28, 1985 is $146.50 per week for 500 weeks which would total $73,250. In determining the degree to which Hartman's earning capacity has been impaired, the court appropriatelv considered Hartman's age, education, work experience, pain and disability, actual wage loss and possible loss of future earning capacity. Holton v. F.H. Stoltze Land and Lumber Co. (1981), 195 Mont. 263, 266, 637 P.2d 10, 12; Flake v. Aetna Life & Casualty Co. (1977), 175 Mont. 127, 129, 572 P.2d go?, 909. The court recognized that at the time of the trial, Hartman was 39 years of age and had been a traveling salesman since 1979 and continues to work in that capacity. The court also recognized that he has a high school diploma and two years of college. The court then recognized that Hartman's 1987 salary recorded on his W-2 form was $68,000 plus. The court relied upon the testimonies of the two rehabilitative vocational counselors--Mark Williams, who was called by Hartman, and Jeanne Dussault, who was called by National Union Fire Insurance--to determine Martman's possible loss of future earning capacity. Dussault testified that one business she contacted expressed a possible interest in hiring Hartman and that one salesman for that company had made in excess of $100,000 a year. Hartman was subsequently called as a rebuttal witness and testified that he was familiar with the company referenced to by Dussault and that in his opinion, it would be an "absolute impossibility" for a sales representative to make over $100,000 for that company. In addition, Dussault testified on cross-exam that she has never placed an injured worker, with or without a college degree, in a position that pays over $60,000 a year. Dussault also testified that a management level position with Hartman's current employer, a possible alternative to Hartman's current position, has a base salary of $36,000 a year plus benefits or $45,000 a year if fringe benefits are included. Williams conducted an employers' survey, and based upon the responses, he testified that the average salesman earned approximately $25,000 to $26,000 per year and that in a best case scenario this figure would equal $38,000. In light of the above, the court found that Hartman will likely take a fifty percent reduction in his current income upon leaving his present position. When reviewing a decision by the Workers' Compensation Court, this Court's function is to determine whether substantial evidence exists to support the Workers' Compensation Court's findings of fact and conclusions of law. Coles v. Seven Eleven Stores (Mont. 1985), 704 P.2d 1048, 1050, 42 St.Rep. 1238, 1240, Davis v. Jones (Mont. 19851, 701 P.2d 351, 353, 42 St.Rep. 840, 843. In this case, the court found that although Hartman returned to work immediately after the 1985 accident and has not presentlv sustained actual loss of wages as a result of his injuries, he has nonetheless suffered pain and difficulties in his employment because of the accident. The court also found that Dr. Swift's testimony and Hartman's own testimony indicates that Hartman will have to make a change in his employment if he ever expects to he relieved of some of his pain and symptoms. Upon leaving his present position, the court found that Hartman will likely take a fifty percent reduction in his current income. The court then concluded that fifty percent was an appropriate disability factor on which to base Hartman's benefits for possible loss of earning capacity. In applying this figure, the court awarded Hartman 250 weeks of permanent partial disability benefits at a weekly rate of $146.50, beginning from the date of Hartman's 1985 accident. In view of the Workers' Compensation Court's findings of fact and conclusions of law, we hold that substantial credible evidence supports the Workers' Compensation Court's determination of Hartman's permanent partial disability benefits. The defendant, in an attempt to attack the basis of the court's findings, argues that the court "erroneously relied" on the deposition testimony from Hartman's two expert witnesses and then "misunderstood" oral testimony from its expert witness. We disagree. This Court is in as good a position as the Workers' Compensation Court to assess the weight given to deposition testimonv, Shupert v. Anaconda Aluminum Co. (Mont. 1985), 696 P.2d 436, 439, 42 St.Rep. 277, 281-82, but this Court will defer to the Workers' Compensation Court's findings as to the weight and credibility of oral testimony. Frost v. Anaconda Co. (Mont. 1985), 701 P.2d 987, 988, 42 St.Rep. 889, 891. In light of the evidence presented at the trial and discussed above, we hold that the Workers' Compensation Court did not erroneously rely on the deposition testimonies of Hartman's two expert witnesses--Dr. Swift and Mark Williams, the rehabilitative vocational counselor,--nor did the court misunderstand the defendant's expert witness's oral testimony. We conclude that the court properly considered and weighed all of the testimonies in determining Hartman's permanent partial disability benefits. The defendant also argues that substantial credible evidence presented at the trial supports its contentions that Hartman's salary will not decrease as a result of his 1985 accident. However, as previously stated, this Court's function on review is to determine whether substantial credible evidence supports the lower court, and not, as the defendant argues, to determine whether substantial credible evidence exists to support contrary findings. Davis, 701 P.2d at 353, 42 St.Rep. at 843. The second issue raised on appeal is whether the Workers' Compensation Court erred in awarding Hartman $13,690.60 in attorney fees and $1,915.29 in costs. On June 8, 1988, the Workers' Compensation Court issued an order awarding Hartman $13,690.60 in attorney fees and $1,915.29 in costs. In determining these amounts, the court relied upon 39-71-611, MCA (1985), the law in effect at the time of Hartman's accident. In asserting that the Workers' Compensation Court erred in awarding Hartman attorney fees, the defendant sets forth a series of novel "arguments." The defendant recognizes that successful claimants are entitled to attorney fees but argues that Hartman was not a "successful" claimant. Specifical-ly, the defendant argues that Hartman was not successful because Hartman contended he was entitled to $73,250.00 and the court awarded him only $36,625.00. The defendant further "supports" this "argument" by stating that its initial $5,000 settlement offer more close1.y approximated the court's award of $36,625.00 than Hartman's request of $73,250.00, and therefore indicates that Hartman was not successful. We hold that defendant's argument set forth above lacks merit. The statute applied by the Workers' Compensation Court, 5 39-71-611, MCA (1985), merely states that a claimant who is "adjudged compensable by the workers' compensation judge or on appeal" is entitled to reasonable costs and attorney fees. In the present case, the Workers' Compensation Court found that Hartman was entitled to compensation under § 39-71-706, MCA (1985), and therefore entitled to reasonable attorney fees and costs. In Wight v. Hughes Livestock Co. (1983), 204 Mont. 98, 664 P.2d 303, this Court stated that the "objective of the statutes allowing attorney fees in compensation cases [is] to preserve in tact the eventual award recovered by the claimant for his impairment, by assessing in addition his attorney fees and costs against the insurer or employer." 204 Mont. at 108, 664 P.2d at 309. By engaging in subjective evaluations of whether a claimant, who was awarded benefits by the Workers' Compensation Court, is "successful" according to defendant's definition would go against the objective of preserving the eventual award the claimant recovers, regardless of the actual amount recovered. We therefore disagree with defendant's definition of "successful" and hold that the plain meaning of S 39-71-611, MCA (1985), clearly allows a claimant, who is "adjudged compensable by the workers' compensation judge or on appeal," to recover reasonable costs and attorney fees. The defendant next argues that the Workers' Compensation Court incorrectly applied 39-71-611, MCA (1985), when assessing Hartman's attorney fees and costs. Section 39-71-611, MCA (1985), applies when an insurer denies liability. The defendant argues that the appropriate statute in this case is S 39-71-612, MCA (1985), which applies when an insurer acknowledges liability but disputes the amount of compensation due the claimant. The defendant thus argues that they did not deny liability, but merely disputed the amount of compensation sought by Hartman and therefore the applicable statute in this case to determine attorney fees and costs is S 39-71-612, MCA (1985). The record does not support the defendant's factual assertions. In both the pretrial order and the defendant's proposed conclusions of law, the defendant asserts that the claimant is not entitled to any compensation. In addition, the defendant fails to argue how the application of § 39-71-612, MCA (1985), would cause a different assessment of attorney fees and costs in this case. We therefore hold that the Workers' Compensation Court properly applied § 39-7'1-611, MCA (1985), in assessing Hartman's attorney fees and costs. The defendant also argues that the court should have used the contingency fee agreement between Hartman and his attorney to assess the attorney Fees. In assessing the amount of reasonable attorney fees and costs, the court relied upon 5 39-71-614, MCA (1985). This statute does not state that a contingency fee agreement between a claimant and the attorney limits a court's determination of the amount of reasonable attorney fees awarded to a claimant. To the contrary, the statute requires that the attorney's fee "must be based exclusively on the time spent by the attorney in representing the claimant on the issues brouqht before the workers' compensation judge." Although the statute does not restrict the claimant and the attorney from entering into a contingency fee arrangement, the statute also does not tie a judae's hand by stating that a contingency fee agreement determines the upper limit of what constitutes reasonable attorney fees in a workers1 compensation case. The defendant also relies upon McHinley v. American Dental Manufacturing Co. (Mont. 1988), 754 P.2d 831, 45 St.Rep. 892, to assert that a court must pay attorney fees based upon the difference between a settlement offer and the amount awarded by the court. The reliance by the defendant on McKinley is misplaced. In McKinley, this Court interpreted language in S; 39-71-612, MCA (1983), that the legislature subsequently repealed in 1985. Hartman' s accident occurred in 1985, therefore, the 1985 amendments apply in this case. We therefore hold that the Workers' Compensation Court properly assessed the attorney fees and costs awarded to Hartman. We affirm and remand this case, pursuant to Hartman1s request and in accordance with S 39-71-611, MCA, to the Workers' Compensation Court to award attorney fees and costs associated with this appeal. We Concur: Chief Justice / -\ Justices - 12 - Mr. Justice L. C. Gul-brandson, dissenting. T respectfully dissent. In mv opinion, the permanent partial benefit award of $146.50 per week for 250 weeks is, at best, premature, and is based on a flawed computation methodologv. The record discloses that the claimant was injured on October 28, 1985, when he lost control of his car, received emergency medical treatment consisting of a muscle relaxant and a pain medication, was released from the hospital the same date, returned to work the following day, has had no wage loss, and has increased his gross wage income each year from $56,318.30 in 1985 to $68,000 in 1987. The Workers ' Compensation Court Judge, in his Findings and Conclusions of Law, included the following: The Court finds that the medical testimony and credible vocational evidence indicates that Mr. Hartman has a potential loss of future earning capacity. . . This testimony clearly indicates that claimant is going to have to make a change in his employment if he ever expects to be relieved of some of his pain and symptoms. The question, then, is: Can claimant make a change in his employment without experiencing a decline in his income? . . . Given the above facts, this Court finds that should claimant leave his current employment, it is likely that it would be for a position paying $36,000.00 a year, or approximately 50 percent. of his 1987 income of $68,000.00. Furthermore, this Court holds that fifty percent is an appropriate disability factor on which to base claimant's benefits for potential loss of earning capacity. In applying this figure, claimant is entitled to 250 weeks of permanent partial disability benefits at a weekly rate of $146.50. These benefits are to be paid from the date of claimant's industrial accident. (Emphasis added) In my opinion, based on the deposition testimony, uncontroverted facts and pertinent statutes, the above quoted excerpts from the Findings and Conclusions are not legallv supportable. The medical record, in deposition form, is replete with references to the failure of the claimant to comply with the medically recommended exercise regime, which was based upon the knowledge that claimant would be driving long distances and working long hours durinq his four day work week. Testimony at trial indicated that claimant had six to eight weeks of paid sick leave available to him which he did not utilize for phvsical therapv purposes. Further, evidence disclosed that claimant took extended vacations to Seattle, Washington and Edmonton, Canada by motor vehicle when less strenuous activity might have aided his recovery. I find. erroneous the court's conclusion that "Claimant is going to have to make a change in his employment if he ever expects to be relieved of some of his pain and symptoms." Regarding the possible change of jobs in the future, the claimant stated: "I'm just trying to delay it until my very expensive teenagers get out of the home, and then I'm going to do something else." The claimant having remained on the job for the past three years, with increased earnings each year, and with the possibility of the claimant remaining in that same position for the next several years, it could only be through conjecture and speculation that the court found a fifty percent disability factor "on which to base claimant's benefits for potential loss of earning capacity." It is therefore my opinion that the award is premature and, as the court correctly stated: "Should claimant experience an actual diminution of his income for which he has not been compensated, he may withdraw his Sectior, 705 election in favor of Section 703, for loss of a \ Mr. Chief Justice J. A. Turnage: I concur in the foregoing dissent of Mr. Justice Gulbrandson. 8 : Chief Justice	February 16, 1989
3797f87c-c3c1-4596-9b90-c562f08753d4	STEWART v FISHER	N/A	88-138	Montana	Montana Supreme Court	No. 88-138 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 RONALD R. STEWART and LYDIA M. STEWART, Plaintiffs and Appellants, -vs- BILL FISHER, Defendant and Respondent. APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Leif Erickson, Judae presiding. COUNSEL OF RECORD: For Appellant: Roger M. Sullivan argued; McGar~~ey, Heherlinq, Sullivan and McGarvey, Kalispell, Montana For Respondent: I. James Heckathorn arqued; Murphy, Robinson, Heckathorn and Phi .l.lips, Kalispel.!_, Montana I- rZ Ln 3 0 0 submitted: October 12, 1988 0 2 t!Jl" . - I 2 Decided: January 25, 1989 < , u . I'C L L a do.z z = LA, , 2 3 Q3 z - 0 C % 3 . " 2 Mr. Justice William E. Hunt, Sr. , delivered the Opinion of the Court. The mobile home owned by Stewarts, the plaintiffs, fell off its foundation blocks approximately one week after Fisher, the defendant, had set up the mobile home in a new location. The jury empaneled in the District Court of the Eleventh Judicial District, Flathead County, returned a verdict on November 25, 1987, finding in favor of Fisher. The District Court denied. Stewarts' motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Stewarts appeal. We affirm the District Court. The issues raised on appeal are: (1) Whether the District Court improperly failed to instruct the jury on the legal standards associated with an "act of nature" defense. (2) Whether the District Court improperly failed to instruct the jury that more than one factor may cause an injury and that the defendant may not avoid liability by claiming that some other factor helped cause the injury. (3) Whether the plaintiffs were entitled, as a matter of law, to judgment on the issue of defendant's liability for negligence, and whether substantial credible evidence supports the jury verdict. (4) Whether the District Court erred in not granting the plaintiffs' motion in limine which sought to preclude the defendant's mention at trial of z collateral source of insurance. In mid-March of 1985, Lydia Stewart decided to relocate her mobile home. She contacted Rill Fisher, a professional contractor who sets up and services these types of dwellings. Fisher agreed to do the work, which included leveling, blocking, and skirting the mobile home at its new location. On March 30, 1985, Fisher transported the Stewarts' mobile home to its new location. Before setting the home up, Fisher had Lydia Stewart ask the manager of the mobile home park to plow the lot because a layer of snow and ice was in the area where the mobile home was to be placed. After the area was plowed, Fisher testified that among the mixed dirt and gravel, ice spots existed. Nonetheless, Fisher proceeded to setup the mobile home on the new location. Fisher testified that he used one more set of blocks than usual because the lot sloped and a waterbed was to be placed in the back of the home. Fisher and his employee worked on blocking and leveling until 5:00 p.m. on March 30, 1985. An understanding existed between Lydia Stewart and Fisher that Fisher would return to re-level the home and put the skirting up, however, the testimony differs as to whether Fisher would return on his own or whether he would return when Lydia Stewart called him to inform him that the snow and ice was gone from the yard. Eight days later, on April 7, 1985, at approximately 11:30 p.m., the Stewarts' mobile home fell off its foundation blocks. The mobile home itself sustained major damage and was later sold to a local wrecking yard for salvage value. Likewise, a large amount of the Stewarts' personal property inside the mobile home suffered either serious damage or was destroyed. In addition, following the accident, Lydia Stewart, who was alone inside the mobile home when it fell-, began to suffer from a psychological. disorder requiring psychiatric treatment and multiple hospitalizations. The first issue raised on appeal is whether the District Court improperly failed to instruct the jury on the legal standards associated with an "act of nature" defense. At trial, Stewarts asserted that Fisher was negligent in his duty of setting up their mobile home. The issue to be determined in such an action is "whether a reasonably prudent and skillful contractor would have acted as defendant did." Bush v. Albert D. Wardell Contractor, Inc. (1974), 165 Mont. 312, 317, 528 P.2d 215, 217-18. The burden of proving that a defendant breached his duty by not exercising reasonable care is on the plaintiffs. See, e.g., State ex rel. Burlington - - Northern, Inc. v. District Court of First Judicial Dist. (1972), 159 Mont. 295, 301, 496 P.2d 1152, 1155-56. Stewarts then argue on appeal that Fisher, instead of simply denying negligence, relied upon an "act of nature" defense when asserting that he was not liable for their mobile home falling off its foundation blocks. In particular, Stewarts point towards Fisher's testimony where he stated, for example, that "unstable ground" was the cause of the mobile home falling from its foundation blocks. The Stewarts therefore contend that the District Court erred bv not instructing the jury on the legal standards that a defendant must meet before asserting this defense. We disagree. The case before the jury was simply whether Fisher acted as a reasonably prudent and skillful contractor when setting up the Stewarts' mobile home under the winter weather conditions. Merely because ice was present when Fisher set up the mobile home, does not necessarily mean that an "act of nature" or "act of God" defense is being raised. We conclude that Fisher did not raise such a defense nor do the facts warrant the use of it. We hold that in the present case, the District Court did not err by refusing to instruct the jury on the legal standards associated with an "act of nature" defense. The second issue raised on appeal is whether the District Court improperly failed to instruct the jury that more than one factor may cause an injury and that the defendant may not avoid liability by claiming that some other factor helped cause the injury. Stewarts argue that if the damage to their mobile home was the result of two concurring causes, one being the negligence of the defendant and the other being an act of nature, then the District Court committed reversible error by not instructing the jury on multiple factor causation. Tn light of our holding that an act of nature defense is not applicable in this case we hold that the District Court did not err when it refused Stewarts' proposed instruction on multiple factor causation. The third issue raised on appeal is whether the plaintiffs were entitled, as a matter of law, to judgment on the issue of defendant's liability for negligence, and whether substantial credible evidence supports the jury verdict. When substantial evidence exists to support the jury verdict, then this Court will sustain the District Court's action denying a motion for directed verdict. Gunnels v. Hoyt (Mont. 1981), 633 P.2d 1187, 1191, 38 St.Rep. 1492, 1495. When determining whether substantial evidence exists to support the verdict, this Court reviews the evidence in a light most favorable to the prevailing party. Wheeler v. City of Bozeman (Mont. 1988), 757 P.2d 345, 347, 45 St-Rep. 1173, 1176. The evidence may be inherently weak and still be considered substantial. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176, Local Union No. 400 of Intern. Union v. Bosh (~ont. 1986), 715 P.2d 36, 42, 43 St.Rep. 388, 394. In addition, when conflicting evidence exists, the credibility and weight given to the conflicting evidence is within the province of the jury. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176. In the present case, the jury had to determine whether a defendant acted as a reasonably prudent and skillful contractor. The jury had available to it all the evidence presented at trial, including the testimony of three professionals regarding the proper standards and procedures for setting up mobile homes under winter conditions; the procedures Fisher used in setting up Stewarts' mobile home; and the prevailing weather conditions. After being presented with the evidence at trial, the jury found in favor of Fisher. The Stewarts argue that the uncontradicted testimony establishes that at least a portion of the lot onto which the Stewarts' mobile home was moved was still covered with ice after it had been plowed and that Fisher was aware of this fact; that it is a violation of accepted standards and procedures to set foundation blocks on top of ice rather than clearing out the ice and setting the foundation block on the ground; and that at least two of the foundation blocks were set on ice. However, testimony was also presented that the mobile home would not have fallen off its found-ation blocks when only two of the foundation blocks were set on Ice. The evidence also establishes that the lot where the mobile home was to be placed was not covered entirely with ice, but that the ice was only located in spots. Thus, the jury could have determined that only two of the foundation blocks were set on ice and that therefore Fisher acted as a reasonably prudent and skillful contractor when only two of the nine foundation blocks were placed on ice. As we have previously held, the evidence may he inherently weak and still be considered substantial and the credibility and weight given to conflicting evidence is within the jury's province. Wheeler, 757 P.2d at 347, 45 St.Rep. at 1176. We therefore hold that substantial credible evidence exists to support the jury verdict and that therefore the Stewarts were not entitled, as a matter of law, to judgment on the issue of defendant's liability for negligence. The last issue raised on appeal is whether the District Court erred in not granting the plaintiffs' motion in limine which sought to preclude the defendant's mention at trial of a collateral source of insurance. The Stewarts' presented the court with a motion in limine during pretrial conference, seeking to preclude the defendant's mention at trial of a collateral source of insurance. The District Court reserved ruling on this motion. The Stewarts did not request a ruling on this motion before the case went to trial, but more importantly, the Stewarts did not object, nor present the District Court with any motions for mistrial or to strike the alleged testimony when insurance was first mentioned by the defendant at the trial. Failure to object or request corrective action after the mentioning of insurance by the defendant constitutes a waiver of objection on this issue. Rasmussen v. Sihert (1969), 153 Mont. 286, 295, 456 P.2d 835, 840. We therefore hold that this issue is not properly before this Court as a result of the Stewarts' failure to object at the time when insurance was first mentioned during the trial. Affirmed. We Concur: JJLL+L&: Justice	January 25, 1989
b97c137f-4e24-4f1d-8031-e0e50106626e	STUBER v MOODIE IMPLEMENT	N/A	88-459	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FRANK STURER, Claimant and Respondent, -17s - MOODIE IMPLEMENT, Employer, and JOHN DEERE INSURANCE COMPANY, Defendant Insurer and Appell-ant. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Jardine, Stephenson, Rlewett & Weaver; K. Dale Schwanke, Great Falls, Montana For Respondent : + Torger S. Oaas, Lewistown, Montana nZ. 3- 3 0 I L a cu ; ; ; w n :L- Submitted on Briefs: Dec. 16, 1988 t ( J b J , . A a cr - A - U $ - . I . . Decided: February 17, 1989 " 3 = 1 c - " 01 Q LL ; ,) C.< .a F i l e d ; , c3 Lz 4 i i J + ZZ m 0 a ' % * rC Clerk Mr. Justice William E. Hunt, Sr. , delivered the Opinion of the Court. John Deere Insurance Company (insurer) appeals from a judgment of the Workers' Compensation Court awarding claimant Frank Stuber temporary total disability benefits. Insurer contests the rate of disability payments awarded to Stuber. We affirm the Workers' Compensation Court and remand for a determination of costs and attorney's fees incurred by Stuber in this appeal. The question presented for review is as follows: 1) When a full-time employee who works overtime hours that fluctuate on a seasonal basis is injured during the season of peak overtime, can a fair and reasonable approximation of the employee's usual wages be arrived at by crediting the employee with the average number of overtime hours worked during the four pay periods precedinq the accident causing the injury? Claimant Stuber was employed by Moodie Implement, a farm implement dealer. In addition to his regular 40-hour week, Stuber was expected to work overtime hours as needed. PJo contract existed with regard to the amount of overtime, and at no time was Stuber guaranteed that overtime would be available. The amount of overtime varied from week-to-week. Generally, a suhstantial number of extra hours were required between the months of April and September. The work slowed during the late fall and winter. During the busy season, on August 6, 1983, Stuber injured his lower back in an industrial accident. He continued to work after the accident until, approximately two and one-half months later, the severity of the injury forced him to quit. On March 1, 1984, Moodie Implement's insurer, John Deere Insurance Company, commenced paying Stuber disability benefits at a rate of $190.45 per week. Insurer arrived at this figure by averaging the amount of overtime Stuber worked during his last three pay periods, those that occurred subsequent to the accident. Insurer thus calculated that Stuber's usual weekly wage included an averaqe of 7.9 hours of overtime. Stuber petitioned the Workers' Compensation Court for a ruling that the insurer had underpaid his disability benefits. The parties submitted the case to the court on stipulated facts. The court concluded that the insurer had underpaid the disability benefits, finding that the overtime hours should have been averaged over the four pay periods preceding the accident. Using overtime figures from these pay periods, the court determined that Stuber's usual w e e k l : : wage included 14.7 hours of overtime, entitling Stuber to a disability payment of $237.04 per week. The court awarded Stuber attorney's fees and costs of $1,860.34 but denied his request for a 20% penalty against insurer for unreasonable delay in paying benefits. At the time of Stuber's iniury, the Workers' Compensation Act, S § 39-71-101 through 39-71-2909, MCA (1983), did not set out a formula for computing wages. The act simply defined wages as "the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered." Section 39-71-116(20), MCA (1983). In Coles v. Seven Eleven Stores (Mont. 1985), 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242, we held that overtime hours that are consistently and regularly part of the claimant's work record constitute "usual hours of employment." Neither party disputes the contention that Stuber's overtime is includable in the computation of his average gross earnings. Rather, the dispute centers over the proper number of pay periods the Workers' Compensation Court must consider when calculating the usual overtime hours of an employee whose overtime fluctuates with the seasons. Insurer argues that the Workers' Compensation Court erred by considering only those overtime hours accumulated by Stuber in the four pay periods preceding the accident. Insurer maintains that because those four pay periods occurred during the season of peak overtime, they are not of sufficient length to take into account the seasonal variations in Stuber's overtime hours. In order to reach a fair and reasonable approximation of his usual weekly wages, insurer contends, Stuber's total number of overtime hours must be averaged over his total number of weeks of employment with Moodie Implement. Insurer relies on Infelt v. Horen (1959), 136 Mont. 217, 346 P.2d 556, to support its position. Infelt, however, can be distinguished from the present case. Infelt involved a determination of partial disability under the predecessor to S 39-71-703, MCA (1983). The instant case, on the other hand, involves the computation of temporary total disability benefits under 5 39-71.-701, MCA (1983). We have previously stated that the issue of earning capacity involved in a determination of partial dj-sability is not the same as the issue of compensation involved in a total disability case. Hutchison v. General Host Corp. (1978), 178 Mont. 81, 89, 582 P.2d 1203, 1207. The statute governing compensation for injuries producing temporary total disability provides that " [wl eekly compensation benefits for injury producing total temporary disability shall be 66 2/3% of the wages received --- at the time of the injury." (Emphasis added. ) Section 39-71-701, MCA -- - (1983). Likewise, the statute defining wages mandates a calculation of wages "at the time of the injury." Section 39-71-116 (20), MCA (1983) . Neither statute requires an averaging of earnings over an employee's entire employment history, as the insurer urges us to do in this case. As long as the rate of disability fairly and reasonably approximates the wages earned at the time of injury, this Court will uphold the method used by the Workers' Compensation Court to determine a claimant's usual hours of employment. In the present case, the Workers' Compensation Court determined Stuber's usual number of overtime hours by averaging his overtime over the four pay periods preceding the accident. We note that the legislature adopted this method of computation when it amended the Workers' Compensation Act in 1987. New 5 39-71-123(3), MCA, provides that an employee's wages shall be averaged over the four pav periods preceding the injury unless the claimant, and only the claimant, can show that the use of the four pay periods does not accurately reflect his employment history. We recognize that the 1987 amendments are not dispositive of the present issue because they were enacted subsequent to the injury in question. We find it helpful, however, to refer to these amendments for guidance as to the definition of fair and reasonable compensation. As the legislature has specifically approved the method of calculation used by the Workers' Compensation Court in this case, we cannot sav that it is an unreasonable or unfair method by which to determine an employee's average weekly wage. Stuber injured his back on August 6, 1983. He continued his employment with Moodie Implement until approximately October 24, 1983, when he could no lonqer work due to the severity of his injury. Insurer arques that the Workers' Compensation Court erred by failing to include in it9 computation of average overtime hours the pay periods worked by Stuber subsequent to his accident. As noted previously, disability benefits are based on the wages received by the claimant "at the time of the injury." Section 39-71-701, MCA (1983). Injury is defined as "a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom . . . " Section 39-71-119, MCA (1983). Insurer maintains that the statutory definition of injury is broad enough to encompass both the date of the accident and the date of the resulting disablement. Insurer points out that other jurisdictions have held that it is more appropriate to compute wages as of the time of the disablement, rather than the time of the accident. We note, however, that in both of the cases referred to by the insurer, Pepsi Cola Bottling Co. v. Long (Miss. 1978), 362 So. 2d 182, and Ranger v. New Hampshire Youth Development Center (N.H. 1977), 377 A.2d 132, the disablement occurred years after the accident. In the instant case, by contrast, the lapse of time between the accident and the disablement is a mere two and one-half months. In these circumstances, when the disablement occurs shortly after the accident, the appropriate time from which to figure usual wages is the pay period preceding the date on which the accident occurred. Stuber requests his attorney's fees and costs incurred in this appeal. Section 39-71-612, MCA (1983), provides that a claimant may recover his costs and attorney's fees when controversy arises over the amount of compensation due and the Workersv Compensation Court awards the claimant an amount greater than that paid by the insurer. The purpose of this provi-sion is to avoid diminishing a claimant's disability award by forcing him to pay attorney's fees incurred in successfully pursuing his claim. Holton v. F. H. Stoltze Land & Lumber Co. (1981), 195 Mont. 263, 270, 637 P.2d 10, 14. Likewise, an award of attorney's fees to a claimant who successfully defends the rate of compensation on appeal is necessary to preserve intact his disability benefit. We therefore remand to the Workers' Compensation Court for a determination of reasonable costs and a t t o r n e ~ ' ~ fees incurred by Stuber in this appeal. We affirm the Workers' Compensation Court's award of disability benefits and remand for a determination of costs and attorney's fees associated with this appeal. 1 We Concur: Y	February 17, 1989
11db3097-22ed-477c-9fba-1c84699776e9	STATE v PETERSON	N/A	88-515	Montana	Montana Supreme Court	N o . 8 8 - 5 1 5 I N 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- ELWYM LAWRENCE PETERSON, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , I n and f o r t h e C o u n t y of C a r b o n , T h e H o n o r a b l e R u s s e l l F i l l n e r , J u d g e presiding. COUNSEL O F RECORD: For A p p e l l a n t : G a r y L. Spaeth and John H . B o h l m a n , R e d L o d g e , M o n t a n a For R e s p o n d e n t : H o n . M a r c 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 M i c h a e l A l t e r o w i t z , C o u n t y A t t o r n e y ; K e n t E . Y o u n g , D e p u t y C o u n t y A t t o r n e y , R e d 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 : Jan. 1 9 , 1 9 8 9 D e c i d e d : February 2 3 , 1 9 8 9 Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Appellant Elwyn Lawrence Peterson appeals the judgment of the Thirteenth Judicial District, Carbon County, finding him guilty of driving or being in actual physical control of a vehicle upon the ways of this state open to the public, in violation of S 61-8-401 (1) (a), MCA. Peterson was arrested on September 5, 1986, near Silesia, Montana. Shortly after 7:00 a.m. that morning, a motorist stopped at the weigh station located on 1-90 between Billings and the exit to Silesia. The motorist notified GVW Officer Rudy Gerke that there was "a drunk in an old brown Dodge right behind him." Officer Gerke then went to the side of the highway to look for the car. Approximately one minute later the motorist yelled "Here he comes" and the officer saw what he identified as a brown Dodge coming at him. While the officer did not get a good look at the driver, he noticed the driver appeared to be slumped over the steering wheel. Officer Gerke managed to see that the first four numbers of the license plate were 10-14, before he was forced to jump into the ditch, out of the way of the oncoming car. The officer observed the vehicle then veered and nearly went into the median before passing from the field of view. Officer Gerke then relayed the information he had to the Montana Highway Patrol. Shortly before 9:00 a.m. that morning, Mike Schmang, an adult probation officer, noticed a brown car in the ditch near Silesia. Officer Schmang notified the Carbon County Sheriff's Office of the accident and then went to examine the vehicle. Shortly thereafter, Montana Highway Patrol Officer Lance Bourquin responding to Officer Gerke's report of a drunk driver arrived at the scene. Officer Rourquin noted the license plate number on the vehicle was 10-14696. Rased upon Peterson's admission that he had been driving the vehicle and his failure to pass field sobriety tests, Officer Bourquin placed Peterson under arrest. Peterson was subsequently convicted in Justice Court. He appealed to the District Court which also found him guilty. He now appeals the judgment of the District Court on the ground that sufficient evidence did not exist to sustain his conviction for driving or being in actual physical control of a vehicle upon the ways of this state open to the public. Initially, we note our function on such an appeal is whether there is substantial credible evidence "to support the defendant's guilt beyond a reasonable doubt." State v. Lonqacre (1975), 168 Mont. 311, 313, 542 P.2d 1221, 1222. We find substantial credible evidence exists in this case to sustain the conviction. Peterson presents two arguments as to why we should find he was unable to exercise sufficient control over the vehicle to sustain his conviction. First, he was not the driver of the vehicle on the trip from Billings to Silesia, nor at the time it ran into the ditch. At trial Peterson testified that one Robert "Fuzzy" Routon was giving him a ride home from a party in Billings when a deer in the roadway forced them into the ditch. After the accident Peterson remained in the vehicle while Routon hitchhiked back to Billings to get help to pull the vehicle out of the ditch. Peterson then crawled from the back seat, where he had been sleeping, to the front seat to wait for Routon and went back to sleep. Peterson testified he was unable to obtain Routon to testify at trial, because Routon was out of the state looking for work. Peterson's second argument is that he was not physically in a position to actually control the vehicle when the officers arrived and arrested him. He contends the evidence shows the vehicle was off the highway, was turned off, and he was not behind the steering wheel or in a position to exert "actual physical control" over the vehicle. Our examination of the record discloses several. conflicts with these arguments. First, Peterson admitted on two separate occasions that he was the driver of the vehicle. Both Officers Schmang and Rourquin testified that Peterson admitted at the scene of the accident that he was the driver of the vehicle when it left the highway. Further, when Peterson was processed at the Sheriff's Office he again acknowledged he had been driving the vehicle. Both officers also testified they did not see any evidence at the scene that there had been anyone else there, prior to their arrival. The fact Peterson was able to obtain an affidavit from Routon after the completion of the trial, stating he was the driver of the vehicle at the time it left the highway, is not convincing. This assertion directly conflicted with Peterson's admission on two separate occasions before law enforcement officers that he was the driver. In denying the appel-lant's motion for a new trial, the District Court examined the effect of the affidavit on the case. It found that Peterson was not diligent in obtaining Routon's presence for trial or in seeking a continuance when it was apparent he would not be available for trial. Further, this evidence was merely cumulative support of Peterson's contention at trial that he was not the driver of the vehicle. When the evidence presented at trial is conflicting, [Ilt is the function of the trier of the facts, in this case the trial judge, to determine the credibility of the witnesses and the weight to be given their testimony and he may pick and choose which of the witnesses are to be believed from a consideration of all the evidence. Longacre, 542 P.2d at 1222. Here the trial court had the testimony of three law enforcement officers regarding a description of the manner in which the vehicle was driven and where it came to rest. The officers testified that Peterson made separate admissions that he was driving the vehicle and that the vehicle belonged to Peterson. The evidence showed that Peterson was unable to pass field sobriety tests and had ingested both alcohol and prescription drugs which react to alcohol. We find such evidence constitutes substantial credible evidence sufficient to support the judgment of the court. Regarding Peterson's claim in his brief that he was not in a position to exert "actual physical control" over the vehicle, we find the evidence was to the contrary. Upon approaching the vehicle, Officer Schmang testified he observed the appellant in the driver's seat, slumped over to the right, with his feet in the area of the pedals. The vehicle was not running, but Peterson himself testified he had the keys in his pocket. Peterson contends this Court should follow the decisions of other courts finding control over the vehicle is lacking where the defendant pulls off the travelled portion of the road and either turns off the vehicle or takes the keys out of the ignition. State v. Zavala (Ariz. 1983), 666 P.2d 456; State v. Smelter (Wash.App. 1984), 674 P.2d 690; State 7 . Bugger (Utah 1971), 483 P.2d 442. We decline to accept such precedent as controlling, particularly under the facts of this case. Rather, we look to Montana precedent for when a person may be found to have actual physical control of a vehicle. See, State v. Ruona (1958), 133 Mont. 243, 331 P.2d 615; State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33. In Taylor, the defendant was found stuck in a barrow pit off a Billings street with the vehicle running and the lights on. There the Court stated: Just as a motorist remains in a position to regulate a vehicle while asleep behind its steering wheel, so does he remain in a position to regulate a vehicle while asleep behind the steering wheel of a vehicle stuck in a borrow [sicl pit. He has not relinquished regulation of or control over the vehicle. It does not matter that the vehicle is incapable of moving. Movement of a vehicle is not required for "actual phvsical control." State v. Ruona, supra. Taylor, 661 P.2d at 34. Here Peterson was found in the driver's seat of a vehicle which had run off the road, with the keys to the vehicle in his pocket. In such a position he could regulate the movements of the vehicle. Appellant attempts to counter these findings by claiming he was lying down in the front seat and was not in a position to exercise "actual physical control." We find the evidence introduced at trial supports a finding that the appellant was in the driver's seat, but instead of slumping forward onto the steering wheel, he slumped to his right onto the middle of the seat. It would be ludicrous to rest the question of whether a person is in a position to exercise control over a vehicle upon the luck of a person as to the direction one falls when they "pass out." Appellant further asserts this Court should endorse a policy decision found in the Zavala case encouraging a person, who believing his driving impaired pulls completely off the highway, turns off the key and sleeps until sober before proceeding. Such a responsible action should not subject a person to the possibility of being arrested for being in control, according to the appellant. Zavala, 666 We disagree. The better policy is that a person should ascertain his ability to drive before climbing behind the wheel and terrorizing the roadways of this state. Further, the evidence does not support a finding that this was the situation in the present case. Peterson acknowledged he had left a party in Billings around 7:00 a.m. to go home to Silesia, twenty-four miles away. Along the way, eyewitness testimony established whoever was driving the car was seriously impaired and a hazard to anyone on or near the roadway. After driving over twenty miles in an impaired state, the driver of the vehicle finally ended up stuck in the ditch after running over a delineator post and off the highway. There was no turnout or intersecting road at the point where the vehicle left the roadway. Fortunately, no one was injured. We agree with the State's brief that no public policy exists which rewards that kind of luck. The judgment of the District Court is \ Justice We concur:	February 23, 1989
cdbdd166-09cf-4f09-997c-20e435e8a42f	RIVERA v ESCHLER	N/A	88-422	Montana	Montana Supreme Court	No. 88-415 88-422 IN THE SUPREME COURT OF THE STATE OF MONTANA NO. 88-415 KIM RIVERA, Petitioner and Respondent, -vs- JANET E. ESCHLER, Justice of the Peace, Justice Court, YELLOWSTONE COUNTY, MONTANA, Respondent and Appellant. NO. 88-422 STATE, ex rel., TERRY VUKASIN, Plaintiff and Respondent, -vs- THE JUSTICE COURT OF YELLOWSTONE COUNTY, MONTANA, and JANET E. ESCHLER, JUSTICE OF THE PEACE, Defendants and Appellants. APPEAL FROM: The District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Harold Hanser, County Attorney, David Hoefer, Deputy, Billings, Montana (88-415 & 88-422) For Respondent: Scott Gratton; Anderson, Brown Law Firm, Billings, Montana (88-415) Addison Sessions; Thompson & Sessions, Billings, cy Wontana (88-422) M 4 1 . " 4 -I > . . . r--4 b i , . - . . mu_. _ F;7 Cf< 1 L.. . Submitted: December 9, 1988 Decided: January 10, 1989 .J >- -.- c7r -- ED SMITH c: * t - ) . - -L Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This case comes to us from the issuance of a writ of certiorari by the Honorable Robert Holmstrom, Thirteenth Judicial District Court, Montana, annulling an order entered by the appellant, Janet Eschler, Justice of the Peace, Yellowstone County. We affirm. On September 23, 1986, the respondent, Kim Rivera, was found guilty of driving a motor vehicle under the influence of alcohol. Appellant Janet Eschler, Yellowstone County Justice of the Peace, sentenced the respondent to a one-year suspended sentence, imposed a fine of $400, required respondent to complete the Rimrock Foundation DUI school and "treatment as necessary." At the completion of counseling, respondent engaged in an exit interview. On the basis of the interview, Rimrock Foundation counselors recommended the respondent enroll in an inpatient treatment facility. On February 4, 1987, appellant ordered the respondent to fol-low the recommendations of the counselor at the Rimrock Foundation and perform the following: (a) That the defendant enroll in a licensed chemical dependency center; (b) That the defendant abide by all aftercare recommendations made by the facility upon completion of treatment; (c) That the defendant abstain from all use of alcohol and drugs; (d) That the defendant appear before this court on February 9, 1987, at 4:30 p.m. At this time defendant shall state to the court the place and date of his treatment enrollment. All arrangements must be made by said date or cause a warrant to be issued, and defendant incarcerated. The respondent petitioned the District Court to exercise certiorari. On May 26, 3988, District Court Judge Holmstrom annulled the order, finding appellant lacked jurisdiction to modify the initial sentence. The facts and procedure in~rolving the second respondent, Terry Vukasin, are directly analogous to the Rivera case. Pursuant to a sentencing order dated November 30, 1987, Vukasin completed an alcohol treatment program. On January 21, 1988, Justice Eschler directed Vukasin to follow recommendations of Rimrock Foundation counselors, enroll in a licensed chemical dependency treatment center and attend aftercare treatment. On June 20, 1988, District Court Judge G. Todd Baugh deferred to Judge Holmstrom's decision in the Rivera case and directed the January 21, 1988 order annulled. The appellant's motion for consolidation acknowl.edges the analogous nature of the two cases. Appellant presents a single issue on appeal: 1. Did Justice of the Peace Eschler have jurisdiction, pursuant to section 61-8-714(4), MCA, to order respondents, both convicted of the offense of driving under the influence of alcohol, to enroll in a licensed chemical dependency center, to abstain from all use of alcohol and drugs, and to abide by all aftercare recommendations made by the facility upon the completion of treatment? In addition, respondents question the constitutionality of the orders, alleging a violation of their due process rights by the disallowance of a hearing and counsel prior to sentencing. Because this appeal can be decided solely on the question of statutory authority, we need not address respondents' constitutional argument. Section 61-8-714, MCA, provides in pertinent part: 61-8-714. Penalty for driving under the influence of alcohol or drugs. (I) A person convicted of a violation of 61-8-401 shall be punished imprisonment in the county jail for not less than 24 consecutive hours or more than 60 days, and shall be punished by a fine of not less than. $100 or more than $500 . . . (4) In addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of institutions, which may include alcohol or drug treatment, or both, if considered necessary by the counselor conducting the program. Each counselor providing such education or treatment shall, at the commencement of the education or treatment, notify the court that the defendant has been enrolled in a course or treatment program. If the defendant fails to attend the course or the treatment program, the counselor shall notify the court of the failure. Appellant contends the language of § 61-8-714(4), MCA, allows for continuing authority to modify respondents' sentences, claiming the subsequent order is necessary to enforce the sentencing statute. This Court does not agree with appellant's interpretation. This Court has consistently held that " [olnce a valid sentence has been pronounced, the court imposing the same is lacking in jurisdiction to vacate or modify the sentence, except as otherwise provided by statute. . ." State v. Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711; Wilkinson v. State (1983), 205 Mont. 237, 667 P.2d 413. For example, we found such specific authorization in S 46-18-203, MCA, previously 95-2206, RCM (1947) : [A] judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201 . . . is authorized in his discretion to revoke the suspension or impose a sentence and orderLthe person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law - or retain such jurisdiction with the court. . . (Emphasis added.) The plain meaning of the statute gave the district court three mutually exclusive alternatives for handling a defendant who violated the terms of his probation, and could thereby modify the sentence. State v. Downing (1979), 181 Mont. 242, 593 P.2d 43. "While [the alternatj-ves] give the District Court some latitude in dealing with probation violators, they do not vest the court with completely unbridled discretion." Downing, 593 P.2d at 45. The explicit authorization necessary to modify the original sentence is notably absent in the present case. Section 61-8-714, MCA, contemplates all punishment and treatment he contained in the original order. Any other interpretation, we believe, would amount to an improper exercise of jurisdiction. Therefore, we conclude that upon imposition of the valid sentence, the appellant' s aut-hority to vacate or modify the sentence ceased. Affirmed. A We concur: A ief Justice	January 10, 1989
bae33156-f76f-4e30-877e-7c6e598c4b95	BUTTE-SILVER BOW LOCAL GOVERNMENT v	N/A	86-270	Montana	Montana Supreme Court	N o . 8 6 - 2 7 0 I N THE SUPREME COURT OF THE STATE O F MONTANA 1 9 8 8 BUTTE-SILVER ROW LOCAL GOVERNMENT, P e t i t i o n e r , -vs- THE STATE O F MONTANA; TREASURER O F THE STATE O F MONTANA, DEPARTMENT O F REVENUE O F THE STATE O F MONTANA, R e s p o n d e n t s . ORIGINAL PROCEEDING: COUNSEL O F RECORD: For P e t i t i o n e r : J a m e s H. G o e t z argued; G o e t z , M a d d e n & D u n n , R 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 o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a C l a y R . S m i t h argued, A s s t . A t t y . G e n e r a l , H e l e n a E r i c J. Fehlig, D e p t . of R e v e n u e , H e l e n a , M o n t a n a D o n a l d M a c I n t y r e , D e p t . of N a t u r a l R e s o u r c e s , H e l e n a , Bontana 3 - ' -- * . " F i l e d : .+ + - Submitted: D e c e m b e r 2 , 1358 D e c i d e d : January 1 9 , 1 9 8 9 ED S M I T H C l e r k Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. This case involves a petition for assumption of original jurisdiction filed pursuant to Rule 17, M.R.App.P. Petitioners seek a declaratorv judgment declaring the Montana Resource Indemnity Trust Act (1973), (the Act), unconstitutional, insofar as it authorizes the expenditure of Resource Indemnity Trust (Trust) funds for purposes other than the reclamation of lands disturbed by the takinq of natural resources. Petitioners also challenge the constitutionality of respondents1 acts in appropriating and expending Trust funds for purposes other than reclamation of lands and contend such acts are a breach of respondents1 fiduciary duties as trustees of the Trust under 5 15-38-203 (2), MCA. We accept the case on original jurisdiction, but find the Act is constitutional and that respondents1 expenditures of Trust funds were authorized under the Act. The Butte-Silver Bow Local Government (Butte-Silver Bow) filed its "Petition for Declaratory Judgment on Original Jurisdiction1' with the Montana Supreme Court on June 13, 1986. The petition relies on Art. IX, sec. 2 as the constitutional basis for its claim. On July 30, 1986, petitioners Butte-Silver Bow sought leave to amend its petition to include several individuals who would "suffer serious adverse impacts in their environmental and aesthetic well-being and quality of life if proper reclamation is not undertaken in the City of Butte." Robert J. Pavlovich, Fritz Daily, and Don R. Peoples were added "in their individual capacities as citizens, residents, electors, and taxpayers of Butte-Silver Bow Local Government." After review of the briefs submitted, this Court remanded the action to Montana's First Judicial District Court, Lewis and Clark County, for determination of factual issues. Particularly, this Court requested the District Court to prepare findings of fact "as to the use and expenditures made of monies derived from the Resource Indemnity Trust Fund, through its interest earnings by the various governmental agencies under the appropriations of the T,egislature." The case is back before this Court upon the agreed findings of fact of the parties adopted bv the District Court. Petitioners raise the following issues to this Court: 1. Do the petitioners have standj-ng and should this Court assume original jurisdiction' 2. Is the Montana Resource Indemnity Trust Act, S 15-38-101, et seq., MCA, unconstitutional for authorizing the appropriation and expenditure of Trust funds for purposes other than reclamation of lands? 3. Have respondents violated their fiduciary duties as trustees by using Trust funds for purposes other than the reclamation of lands? 4. Have respondents used Trust funds for general agency operating expenses in violation of S 15-38-203(2), MCA? 5. Are petitioners entitled to attorney's fees under the common fund theory? I. Should original jurisdiction be granted? Petitioners' standing to bring this action is essential to the question of our acceptance of original jurisdiction. This Court has previously held a registered voter has standing where a constitutional provision is clearly intended to benefit the public and the electorate, and by contending the provision "has been the victim of legislative strangulation." Committee for an Effective Judiciary v. State (1984), 209 Mont. 105, 108, 679 P.2d 1223, 1225. Further, a taxpayer will have standing to question the validity of a tax, or the expenditure of the tax monies, provided the issue (s) presented directly affect the constitutional validity to collect or use the proceeds of the tax by the state or a local government entity. Grossman v. State, Dept. Natural Resources (1984), 209 Mont. 427, 438-439, 682 P.2d 1319, 1325. Individual petitioners meet the criteria necessary to establish standing both as registered voters and as affected taxpayers. Having found the individual petitioners have standing, we decline to address the question of petitioner Butte-Silver Row's standing. Once standing to bring the action is established, the question shifts to whether the action meets the necessary factors for this Court to accept original jurisdiction. This Court has found that an assumption of original jurisdiction is proper when: (1) constitutional issues of major state wide importance are involved; (2) the case involves pure legal questions of statutory and constitutional construction; and (3) urgency and emergency factors exist making the normal appeal process inadequate. State ex rel. Greely v. Water Court, State of Montana (1984), 214 Mont. 143, 691 P.2d 833; Rule 12, M.R.App.P. Moreover, this Court clearly stated the Court has original jurisdiction to accept declaratory judgment proceedings "where the issues have impact of major importance on a statewide basis, or upon a major segment of the state, and where the purpose of the declaratory judgment proceedings will serve the office of a writ provided by law . . ." Grossman v. State, Dept. of Natural Resources (1984), 309 Mont. 427, 436, 682 P.?d 1319, 1324. This petition involves a constitutional issue of major statewide importance. Petitioners are seeking an interpretation by this Court of a section of the Constitution, of a major act passed by the Legislature and a determination of the existence or absence of conflicts between the two. A decision in the petitioners' favor clearly would have a major impact on the Legislature's funding of a variety of state programs. Additionally, this petition involves only legal questions. All factual questions involving the disposition of Trust monies, have been adequately addressed in the District Court's findings of fact. The Court must determine the legal question of the purposes for which trust funds may or may not be utilized, and then may examine whether the appropriations made by the Legislature were authorized. Regarding the question of whether or not this case presents sufficient urgency and emergency factors to require the Court to exercise original jurisdiction, this Court has stated: Resolution of the issues presented herein is necessary to eliminate or reduce a multiplicity of future litigation; . . . and to eliminate needless expenditure of public funds on procedures that otherwise might subsequently be declared illegal. One of the basic purposes of the Montana Declaratory Judgment Act is to provide for advance determination of such issues, thereby eliminating these otherwise detrimental results. Grossman, 682 P.2d at 1322, citing Forty-Second Legislative Assembly v. Lennon (1971), 156 Mont. 416, 420-422, 481 P.2d 330, 332-333. In light of the fact that the Legislature convened on January 2, 1989, and it will undoubtedly fund programs from the trust income which may or may not be determined constitutional by this opinion, sufficient urgency and emergency exists for exercising original jurisdiction. Having found that petitioners have standing and that the petition satisfies the three required factors, we assume original jurisdiction. Petitioners' advance three arguments on the issue of whether or not the Montana Resource Indemnity Trust Act of 1973 violates Art. IX, sec. 2 of the 1972 Montana Constitution. First, petitioners allege that the plain language of Art. IX, sec. 2, provides the Trust fund shal-1 only be used for the reclamation of lands disturbed by the taking of natural resources. Second, by placing the amendments authorizing the Trust in Art. IX, sec. 2, the people of the state of Montana have shown their intent that use of the Trust funds be limited to reclamation of such disturbed lands. Third, the Legislative history shows an intent to limit Art. IX, sec. 2, to reclamation of lands disturbed by the removal of natural resources. When interpreting a constitutional provision, certain tenets must be observed. The same rules of construction which apply to determining the meaning of statutorv provisions apply to constitutional provisions. Keller v. Smith (1976) , 170 Mont. 399, 404, 553 P. 2d 1002, 1006. The intent of the framers of the provision is controlling. Keller, 553 P.2d at 1006. However, [Sluch intent shall first he determined from the plain meaning of the words used, if possible, and if the intent can be so determined, the courts may go no further and apply any other means of interpretation. (Citations omitted. ) Keller, 553 P.2d at 1006. We therefore must decide whether the plain language of Art. IX, sec. 2 clearly provides the trust fund shall only be used for the reclamation of lands disturbed by the taking of natural resources, or whether the provision is ambiguous and in need of additional interpretation. If the State Constitution does not provide an express limitation on the legislative appropriation power of the State, that power shall reside in the Legislature. Board of Regents of Higher Education I T . Judge (19751, 168 Mont. 433, 446, 543 P.2d 1323, 1331. The plain language of Art. IX, sec. 2 (1) , which is the reclamation section within the larger Environment and Natural Resources Article, states: All lands disturbed by the taking of natural resources shall be reclaimed. The legislature shall provide effective requirements and standards for the reclamation of lands disturbed. Subsection (1) is a statement by the framers of the Constitution that "[all1 lands disturbed by the taking of natural resources shall be reclaimed" and that the Legislature is directed to provide regulations and standards for that reclamation. This subsection does not mention the Trust or place any limitation upon use of Trust funds. Additional subsections were added to sec. 2 by Constitutional amendment in 1974 (following the 1973 legislative enactment of the Montana Resources Indemnity Trust Act). Subsections (2) and (3) were passed to assure the constitutional protection of this Trust and to preserve the Trust for its intended purpose. They state: (2) The legislature shall provide for a fund, to be known as the resource indemnity trust of the state of Montana, to be funded by such taxes on the extraction of natural resources as the legislature may from time to time impose for that purpose. (3) The principal of the resource indemnity trust shall forever remain inviolate in an amount of one hundred million dollars ($100,000,000) , guaranteed by the state against loss or diversion. We do not find a limitation in subsection (2) which would restrict the use of Trust funds to reclamation of lands. The subsection creates the Trust, titles the Trust and pro~rides a source of funding for the Trust. We note that the Trust is not titled the Reclamation of Lands Indemnity Trust nor the Mining Lands Indemnity Trust, but the Resource Indemni-ty Trust. As words must be given their natural and popular meaning in applying statutory construction, we note that Websters 3rd New International Dictionary defines resource as "a new or a reserve source of supply or support: a fresh or additional stock or store available at need: something in reserve or ready if needed." This definition is very broad and indicates an intent on the part of the framers of the provision to have the Trust indemnify the people of the state for the taking or using of any resource. - Examining subsection ( 3 ) , we find a limitation upon the use of the Trust in clear and unambiguous words. However, this limitation merely protects the principal of the Trust from future invasion by the Legislature. This provision may not be construed as a limitation on the use of Trust income, nor of the use of Trust principal over and above the $100,000,000 protected by subsection (3). Appellants claim that the inclusion of subsections ( 2 ) and ( 3 ) in sec. 2 shows an intent to use the Trust strictly for the purpose of reclamation of lands disturbed by the takinq of natural resources as provided in subsection (1). They contend the use of the words "for that purpose" in subsection (2) refers back to subsection (1) and the purpose stated therein of reclamation of lands disturbed. Respondents correctly point out that petitioners' argument ignores a basic rule of grammatical construction: "[tlhe ordinary rule of construction is that the exception is confined to the last antecedent." (Emphasis added.) State ex rel. Hinz v. Moody (1924), 71 Mont. 473, 484, 230 P. 575, 579. The last antecedent phrase in subsection (2) is the funding of the Trust, not the reclamation of disturbed lands found in subsection (1) . Further, the Constitution as a whole does not support a finding of a Trust fund limitation in Art. IX, sec. 2 of the 1972 Montana Constitution. At no other place in the Constitution is a limitation placed upon the appropriation of the funds of this Trust. Where a limitation on certain, specific revenues is intended in other sections in the Constitution, that limitation is clearly spelled out. See, e.g., Art. IX, sec. 5 (relating to the coal severance tax trust fund) ; and Art. VIII, sec. 6 (relating to the non-diversion of highway revenues). For the foregoing reasons we hold the plain language of Art. IX, sec. 2 does not place a limitation upon the appropriation of resource indemnity trust funds beyond the restriction contained in subsection (3). Having so determined we may not apply other means of statutory construction. Keller, 553 P.2d at 1006. As Art. IX, sec. 2 of the 1972 Montana Constitution does not restrict appropriation of Trust funds beyond the limitation contained in subsection (3), we now turn to petitioners' third and fourth issues. Petitioners first argue that respondents, as trustees of the Trust, have violated their fiduciarv duties as trustees by allocating Trust funds for projects unrelated to the reclamation of lands disturbed by the taking of natural resources. We held that the plain language of the 1972 Montana Constitution does not so limit the appropriation or allocation of Trust funds, and we need only discuss whether the Montana Resource Indemnity Trust Act, Title 15, Chapter 38, contains such a limitation on the use of funds. Our examination of the Act finds the appropriation or allocation of Trust funds is not limited to the reclamation of lands disturbed by the taking of natural resources. Rather, the Legislature has provided the funds "shall be used and expended to improve the total environment and rectifv damage thereto." Section 15-38-203 (1) , MCA. "Total environment" has been defined as "air, water, soil, flora and fauna and the social, economic, and cultural conditions that influence communities and individual citizens." Section 15-38-103 (4), MCA. It is indisputable this purpose is very broad and allows the Legislature great discretion in determining the uses to which to apply Trust funds. The Act onlv limits appropriations to programs or uses which improve the total environment and rectify damage thereto, as total environment is defined in S 15-38-103(4), MCA. We find no express limitation contained within the Act which would limit appropriation or allocation of Trust funds solely for reclamation of lands disturbed by the taking of natural resources. Petitioners also contend past and present expenditures have been made of Trust funds for general operating expenses of state agencies in violation of the express limitations in 5 15-38-203(2), MCA, and in breach of their fiduciary duties as trustees of the Trust. Section 15-38-203(2), MCA, states: It is the intent of the legislature that future appropriations from the resource indemnity trust interest account not be made to fund general operating expenses of state agencies. Initially we note that this subsection, added by the 1985 Legislature, specifically applies to "future appropriations." For that reason we find there could not have been a breach of fiduciary duty prior to the effective date of the statute. Further, the Legislature generally cannot pass legislation which a future Legislature may not repeal. State v. State Highway Commission (1931), 89 Mont. 205, 215, 296 P. 1033, 1036. Upon examination of the specific violations alleged by petitioners, we find a problem of semantics. Petitioners identify appropriations made to the Department of State Lands, (DSL) the Department of Livestock, and the Department of Natural Resources in the 1987 biennium, as having been made for general operating expenses. We find it ironic that one of the expenditures, alleged as having been for "general operations," was for the reclamation division of the DSL in 1986. The funding for the reclamation division was provided in total by Trust funds and federal funds allocated for similar use. The division is responsible for regulating mining related disturbances in the state and enforcing the following acts: the Metal Mine Reclamation Act, the Open Cut Mining Act, the Montana Strip and Underground Mine Reclamation Act, and the Underground Mine Siting Act. The activities conducted by the division are admittedly administrative in nature, but are essential to ensuring that the total environment of the state is improved and damage thereto is rectified. The argument that Trust funds allocated toward operation of these programs is in violation of 5 15-38-203 (2), MCA, is without merit. In each case, the State has shown the funds were expended for the operation of programs related to improving the total environment or rectifying damage thereto. The allocation of Trust funds for these programs did not constitute an expenditure for general operating expenses of state agencies in violation of 5 15-38-203(2), MCA. Consequently, we hold the use of funds for programs related to improving the total environment does not violate respondents' fiduciary duty toward the Trust in allocating Trust funds. Having found petitioners are not entitled to relief, petitioners ' claim for attorney's fees must be, and hereby is denied. We concur: /' Justi e P Justices Mr. Justice John C. Sheehy, dissenting: This decision continues what has become a commonplace in the history of the state of Montana: the State gets the gold mine, Butte gets the shaft. The decision is about as farfetched a stretch of interpretation of a constitutional provision as can be imagined. The State Constitution requires that lands disturbed by the taking of natural resources shall he reclaimed. The Constitution further provides for a special fund to be created based solelv on the extraction of natural resources. Somehow, semantically, the majority find no nexus between the two provisions, all contained in the same constitutional article. The close tailoring of the tax on the extraction of natural resources to the constitutional mandate that all lands disturbed by the taking of natural resources be reclaimed is ignored. Somehow the obvious connection between the tax and the purpose of the tax escapes the facile interpretation of the majority. In their response to the petition, the state of Montana and its Treasurer admitted that the 1985 legislature "utilized a portion of the interest income from the Resource Indemnity Trust. fund to fund general operating expenses of state agencies." (Paragraph 11, response to amended petition.) Yet the majority see nothing inconsistent in permitting the State to fund its general operating expenses from a fund constitutionally entitled "Resource Indemnits Trust. " A trust by any other name remains a trust, and a breach of trust by the State should no more be countenanced b~r this Court than hy any prtvate trustee. The Resource Indemnity Trust was never intended to fund the general operations of the State. Other taxes levied upon extractors of natural resources amply provide for the general expenses of state government. The coal severance tax (Section 15-35-103, MCA) is partly credited to the general fund of the State. (Section 15-35-108 (3) (k) , MCA.) The oil and gas severance tax (Section 15-36-101, MCA) is allocated to county expenses and then to the general fund. Section 15-36-112, MCA. The mining license taxes levied on metalliferous mines (Section 15-37-103, MCA) goes partly to the credit of the general fund of the State. Section 15-37-117, MCA. The taxes on micaceous mineral mines all go to the general fund of the State. Section 15-37-207, MCA. The Resource Indemnity Trust Tax, as a special tax levied for land reclamation, cannot be justified if some of that tax is going to be siphoned off for the general operations of the State. To permit such extraneous use of the tax funds violates the legislative purpose given as the excuse for levying the tax. That legislative purpose follows: It is the policy of the state of Montana to indemnify its citizens for the loss of long term value resulting from the depletion of its mineral. resource base and for environmental damage caused by mineral development. This policy of indemnification is achieved by establishing a permanent Resource Indemnity Trust Fund from the proceeds of a tax levied on mineral extraction and by allocating spendable trust revenues: (1) To protect and restore the environment from damages resulting from mineral development; and (2) To support a variety of development programs that benefit the economy of the State and the lives of Montana citizens. How blatant will t . h e extraneous use of Resource Indemni ty Trust taxes become? To begin with, 30 percent. of the interest income of the Resource Indemnity Trust Fund must now be allocated to the water development state special revenue account. Section 15-38-202 (2) (a), MCA. Out of that account, the taxes imposed on the extraction of natural resources will be used for the rehabilitation of State owned projects and parks, including the rehabilitation of spillways and State owned dams; the formulation of down stream emergency warning and evacuation plans for state-owned dams; the development of hydropower potential of state-owned dams; the promotion and development of off-stream or tributaries storage; and among others, administrative expenses, including but not limited to the salaries and expenses of personnel, equipment, office space and other necessities incurred in the administration of the water development program. Section 85-1-604 (3) (b) , MCA. The preservation and proper use of water is necessary to the well-being of this dry western state, but the expense of such preservation should never be fohbed off on a tax levied solely on mines and oil and gas operations, a tax ostensib1.v levied for the purpose of land reclamation. 1 take the position that since land reclamation is constitutionally demanded, and since the Constitution provides a method through the Resource Indemnity Trust Fund to pay for such reclamation, that monies raised from taxes on parties who extract the natural resources should be limited to the purposes of the tax. The legislature, by resorting to special tax funds to provide for general fund obligations is creating an unequal and unfair burden on these special taxpayers and we should not countenance it. T concur in the foregoing d ' s s nt of Justice Sheehy. P	January 19, 1989
c8c01cdc-6c80-493a-81e0-03019353f24e	SLOAN v STATE	N/A	88-275	Montana	Montana Supreme Court	IN THE SUPREME COIJRT OF THE STATE OF MONTANA 1989 RAND LYAL SLOAN, Defendant and Appellant , VS. STATE OF MONTANA, PI-aintiff and Respondent. APPEAJ, FROM: The District Court of the Fifth Judicial District, In and for the County of Reaverhead, The Honorable Arnold H. Olsen, Judge presiding. COUNSEL OF RECORD: For Appellant: Thomas A. Dooling; Dooling Lav~ Office, P.C., Dillon, Montana For Respondent: Honorable Marc Racicot, Attorney General, Helena, Montana John Paulson, Esq., Assistant Attorney General, Helena, Montana Thomas R. Scott, Beaverhead County Attorney, Dillon, Montana Calvin Erb, Esq., Deputy County Attorney, Dillon, Montana Submitted on Briefs: December 16, 1988 Decided: February 9, 1989 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. M r . Sloan was convicted by a jury o f aggravated a s s a u l t i n t h e District Court f o r t h e Fourth J u d i c i a l District, Beaverhead County. H e was sentenced t o 15 y e a r s . M r . Sloan a p p e a l s . W e a f f i r m . The i s s u e s a r e : 1. Did t h e D i s t r i c t Court err i n g r a n t i n g t h e S t a t e ' s motion i n l i m i n e which requested t h a t defense counsel be r e s t r a i n e d from i n q u i r i n g i n t o t h e c r i m i n a l h i s t o r y o f t h e S t a t e ' s witness? 2 . Did t h e D i s t r i c t Court err i n o t h e r e v i d e n t i a r y r u l i n g s ? During t h e l a t e a f t e r n o o n of June 7 , 1987, Les E r n s t , a 6 3 y e a r o l d sheepherder, and Glenn Hone e n t e r e d t h e Lobby Bar i n D i l l o n , Montana, t o d i s c u s s a h o r s e owned by M r . Hone which M r . E r n s t was i n t e r e s t e d i n purchasing. M r . Hone was on p a r o l e from a homicide conviction. While they w e r e stand- i n g n e a r t h e b a r t h e defendant approached them. M r . Hone t e s t i f i e d t h a t t h e defendant asked him t o buy him a d r i n k . When M r . Hone r e f u s e d , t h e defendant asked M r . E r n s t i f he would buy him a d r i n k . M r . E r n s t a l s o r e f u s e d , whereupon t h e defendant t o l d M r . E r n s t t o lend him some money and he would buy h i s own d r i n k s . When M r . E r n s t again r e f u s e d , t h e defen- d a n t h i t him, knocking him t o t h e f l o o r unconscious. M r . Hone t e s t i f i e d t h a t t h e defendant h i t M r . E r n s t a g a i n i n t h e f a c e , and t h e n " p u t t h e b o o t s t o him," o r kicked and stomped on him. Another w i t n e s s , Rod F o r t i e r , t e s t i f i e d t h a t he saw t h e defendant h i t M r . E r n s t f o u r o r f i v e t i m e s w i t h h i s f i s t a s M r . E r n s t l a y on t h e f l o o r unconscious. M r . E r n s t sus- t a i n e d s e r i o u s i n j u r i e s , i n c l u d i n g two f r a c t u r e s of h i s jaw, a n a s a l f r a c t u r e , f a c i a l contusions, and four broken r i b s . Did the District Court err in granting the State's motion in limine which restrained defense counsel from in- quiring into the criminal history of the State's witness? Prior to trial the State made a motion in limine to prevent defense counsel from inquiring into Glenn Hone ' s criminal history for purposes of impeachment. On the morning of trial and later in a written offer of proof, defense counsel informed the court that testimony from either Mr. Hone or the defendant would reveal that Mr. Hone told defen- dant that "he, Hone, would personally see to it that [defen- dant] served time in prison, because a year at the pen had done him, Hone, a lot of good." Counsel for defendant argued that this statement showed bias or motive to fabricate testi- mony, and was admissible for this purpose, although linked to the evidence of his felony conviction. The court, however, granted the State's motion, reserving the right to consider the matter at a later time. Mr. Sloan argues that the credibility of a witness can be impeached by showing motivation to fabricate under Rule 607 (a), M.R.Evid., which states, "The credibility of a wit- ness may be attacked by anv party, including the party call- ing him." Rule 607, M.R.Evid., i . s intended to preserve traditional methods of impeachment, which include impeachment by showing bias or motive to fabricate. Montana statutorily prohibits inquiry into prior crimi- nal history for impeachment purposes through Rule 609, M.R.Evid., which states: For the purpose of attacking the credibility of a witness, evidence that he has heen convicted of a crime is not admissible. The rationale behind this rule as explained by the Commission Comments is that impeachment by evidence of conviction of a crime has low probative value in relation to credibility. The Commission Comments further state, "The Commission does not accept as valid the theory that a person's willingness to break the law can automatically be translated into willing- ness to give false testimony." This rule also avoids the highly prejudicial effect on a jury that is inherent in this type of evidence. There is a strong probability that a juror, hearing that the witness is a convicted felon, will- immediately discredit that witness' testimony. The trial mav even he turned into a "trial of the witness." Evidence of a witness' prior criminal history for im- peachment purposes is normally irrelevant to any issue at trial. It has low probative value in determining whether a witness is telling the truth. It is highly prejudicia!-. Therefore, Montana has statutorily declared it to be inadmis- sible. This exclusionary rule has been upheld by this Court. State v. Short (Mont. 1985), 702 P.2d 979, 42 St.Rep. 1026; State v. Rose (1980), 187 Mont. 74, 608 P.2d 1074. Mr. Sloan argues that his right to impeach by showing bias should override the prohibition against evidence of criminal history when, as in this case, the two rules con- flict. Alternatively, defendant argues that the court's granting of the motion in limine was overly restrictive in that defense counsel should have been allowed to elicit testimony regarding the portion of the statement which did not mention Mr. Hone's criminal history. Since the record. does not establish that defense counsel ever offered to restrict testimony on this statement to the admissible por- tion, we will not consider this argument. The statement as offered, both orally by defense counsel and later in the offer of proof, would necessarily have revealed Mr. Hone's prior criminal history. We consider only whether it was error to prohibit the entire statement. We hold that it was not. In the present case Mr. Hone's statement that he would personally see to it that the defendant served time in prison could he interpreted to show bias or motive to fabricate. Defendant contends that the exclusion of this testimonv deprived him of a fair trial by denying him the right to confront a witness as guaranteed by the Sixth Amendment of the United States Constitution. Defendant refers this Court to Davis v. Alaska (3.974), 415 U.S. 308, 94 S.Ct. 1105, 3 9 L.Ed. 347. In Short, this Court previously considered the right to cross-examination in light ofthe holding in Davis. In Short we held that limiting the extent of cross-- examination on charges against a witness which were pending in another state did not violate defendant's right to con- frontation of witnesses. We stated: A witness' credibility may be attacked through cross-examination to reveal possible biases, preju- dices, or ulterior motives if they relate directly to issues or personalities in the case at hand. Davis, 415 U.S. at 315, 94 S.Ct. at 1109, Camitsch, 626 P.2d at 1254-1256. However, the extent of cross-examination on whether a witness has been accused of another or prior crime is within the trial court's discretion. State v. Carns (1959) , 136 Mont. 126, 136, 345 P.2d 735, 741; State v. Howard (1904), 30 Mont. 518, 77 P. 50; see also, Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. The extent of cross-exam- ination for these purposes is restricted because of the limited probative value in relation to credibility. Montana also considered the Davis rationale in State v. Camitsch (Mont. 1981), 626 P.2d 1250, 38 St.Rep. 563. Howev- er, in Camitsch the defendant did not seek to elicit testimo- ny at trial which would reveal prior criminal history. Camitsch is therefore dissimilar to the present case. Addi- tionally, in Rose, this Court found error in the fact that defense counsel did not object to evidence of a witness' prior criminal history. Rose, 608 P.2d at 1081. In the present case, the trial court was faced with a statutory mandate prohibiting the statement purportedly made by Mr. Hone. Mr. Sloan's asserted denial of the right of confrontation is based upon his own uncorroborated allegation that Mr. Hone made this statement. We hold that the court was well within its exercise of discretion in granting the State's motion in limine restraining Mr. Sloan from eliciting testimony which would reveal Mr. Hone's prior criminal history. Mr. Sloan also asserts that the trial judge literally endorsed Mr. Hone's testimony as Mr. Hone left the witness stand. This assertion is based on the following excerpt from the transcript: THE COURT: All right. Anything further from this witness at all? MR. ERB: No. We don't have anvthinq. THE COURT: All right. Thank you very much. You're excused. THE WITNESS: Thanks. All I can dc is say what I seen and that's it. THE COURT: You did good. You did good. THE WITNESS: And thank you very much. THE COTJRT: Thank you, and you're permanently excused. Mr. Sloan contends that the judge's comment, "You did good. You did good," encouraged the jury to regard Mr. Hone's testimony as "gospel." We note that a court should refrain from comments on witness credibility. Rule 614 M.R.Evid., State v. Bier (1979), 181 Mont. 27, 34, 591 P.2d 1115, 1119. However, taken in context the court's statement was not a comment on the witness' credibility. We hold that Mr. SLoan was not denied a fair trial by this comment. I1 Did the District Court err in other evidentiary rulings? Mr. Sloan contends that the District Court erred by not granting him a continuance in order that Police Chief Pat Clark could be subpoenaed and called as a witness. According to Mr. Sloan's offer of proof, Chief Clark's report to the Crime Compensation T J n i t of the Workers' Compensation Division indicated that the victim was initially receptive to the fight. The District Court did not err in denying this re- quest. Mr. Sloan's motion to compel the service of subpoeva on Chief Clark was not timely made. A request for a continu- ance is within the discretion of the trial judge, taking into consideration the diligence of the movant, S 46-13-202(3), MCA; State v. Walker (Mont. 1987), 733 P.2d 353, 44 St.Rep. 363. Additionally, Mr. Sloan was not prejudiced by the denial of the continuance. Police reports are inadmissible hearsay. Rules 802 and 803(8), M.R.Evid.; Camitsch, 626 P.2d at 1257. Chief Clark was not present during the assault; therefore his own testimony about the report would be inad- missible hearsay. We hold that the District Court did not err in refusing the continuance. Mr. Sloan next contends that it was error for the court to grant the second part of the State's motion in limine, which restrained him from calling Gloria Sutherland as a witness. Mr. Sloan's offer of proof stated that if allowed, Ms. Sutherland would have testified that she overheard a conversation in which the victim asked Mr. Sloan for money in return for dropping the charges, and also that the victim admitted that as far as he knew Mr. Sloan hit him only once. The Sixth Amendment guarantees a criminal defendant the right to testimony of witnesses in his favor. State TT. Higley (Mont. 1980), 621 P.2d 1043, 1050, 37 St.Rep. 1942, 1948, citing Washington v. Texas (1967), 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed. 1019, 1023. However, it does not guarantee him the right to any and all witnesses, regardless of their competency or knowledge. Higley, 621 P.2d at 1050. Ms. Sutherland had no personal knowledge of the assault. Her testimony would have been of a collateral matter of limited probative value. Furthermore, any testimony regarding the victim's statement that as far as he knew, Mr. Sloan hit him only once, would be repetitious since it would be consistent with the victim's own testimony at trial. We hold that there was no error in excluding this testimony. Mr. Sloan next contends that the trial court should have allowed Ralph Merry to testify that after the assault Mr. Ernst attempted on more than ten occasions to solicit Mr. Merry's aid in getting money from Mr. Sloan, even offering to give Mr. Merry a "cut" of the money. Defendant contends that this testimony might serve to "impugn Ernst' s motivations. I' This testimony is not relevant to the assault incident. It has limited probative value regarding Mr. Ernst's credibili- ty. It was within the discretion o f the District Court to limit Mr. Merry's testimony. Finally, Mr. Sloan contends that Loren Rafn's testimony was improperly limited. Mr. Sloan made no offer of proof concerning this testimony, nor is there any indication in the record that his testimony was improperly limited. We affirm the District Court's rulings on this testimony. The judqment and sentence are affirmed. Justlces	February 9, 1989
f0e327ec-c398-4f53-95dd-f62360865470	BERLIN v BOEDECKER	N/A	88-453	Montana	Montana Supreme Court	No. 88-453 I N THE STJPREME COURT OF THE STATE OF MONTANA 1 9 8 9 MARTHA M. BERLIN and DONALD J. PETERSON, P L a i n t i F f s a n d R e s p o n d e n t s , -vs- BRETT A. ROEDECKER, D e f e n d a n t and A p p e l l ant.. APPEAL FROM: D i s t r i c t C o u r t of the E l e v 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 v 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 R . E r i c k s o n , Judqe presiding. COUNSEL OF RECORD: For A p p e l l a n t : L o r e n J. O ' T o o l e , T I ; O I T o n l e & O I T o o l e , P l e n t v w o o d , M o n t a n a F o r R e s p o n d e n t : J a m e s A. Manl-ey, P o l s o n , Montana S u b m i t t e d on B r i e f s : D e c . 9 , 1988 Decid-ed: J a n u a r y 2 5 , 1989 LAJ . - LA- ; *. --- 2 Ln : - r O LL N ; ; o z CI= - 2 I - ' t , z cn 0 03 9 =% Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. Defendant appeals from an order by the District Court of the Eleventh Judicial District, Flathead County, denying his motion for a change of venue. We affirm the District Court's denial. In May of 1984, Joseph Berlin, allegedly acting on behalf of his wife Martha Berlin, and Donald Peterson met with defendant Boedecker in Dawson County and told Boedecker of their interest in purchasing mineral investments. All orally agreed that Boedecker would find, evaluate and appraise potential mineral investment opportunities for the plaintiffs in return for an agreed upon commission. The parties did not agree upon a place of performance for this oral contract. Later that same month, defendant Boedecker told plaintiffs he had a potential seller of such mineral interests. The plaintiffs, defendant and the potential seller (who was defendant's brother) subsequently met together in Flathead County. At this meeting, defendant allegedly apprised plaintiffs of the value of these mineral interests located in eastern Montana and western North Dakota. Plaintiffs subsequently purchased these mineral interests from the seller for $175,000, and defendant was paid the agreed upon commission in Nissoula County. Plaintiffs later determined that the mineral interests were nearly worthless. They then filed suit in Flathead County on March 10, 1988, alleging in Count I that defendant breached his contractual obligation by appraising and evaluating the mineral interests at an inflated value and by representing the seller's interests while under obligation to the plaintiffs. Plaintiffs also alleged in Counts I1 and I11 that defendant tortiously breached his fiduciary duty of reasonable care in regards to the investigation, valuation and appraisal of the mineral interests and that he committed constructive fraud. Thereafter, on April 11, 1988, defendant filed a timely motion for change of venue to Dawson County, the county of his residence. Following a hearing on May 19, 1988, the court denied defendant's motion for change of venue. Defendant appeals from this denial. The sole issue raised on appeal is whether Flathead County is the proper venue for this cause of action. "The general rule governing venue of any civil action is that the action shall be tried in the county in which the defendant resides." Whalen v. Snell (1983), 205 Mont. 299, 301, 667 P.2d 436, 437; see also § 25-2-118(1), MCA. A plaintiff also may choose to bring a contract action in the county were a contract was to be performed. Section 25-2-121(1) ( b ) , MCA; Hardenburgh v. Hardenburgh (1944), 115 Mont. 469, 146 P.2d 151. However, this performance exception applies only if the plaintiff clearly shows that the contracting parties mutually agreed at the time they entered the contract that the contract was to be performed in a particular county other than that of defendant's residence. The particular county must be clear from the express terms of the contract or by necessary implication from the contract terms. Armon V. Stewart (1973), 162 Mont. 262, 264, 511 P.2d 8, 9. In the present case, the parties did not have a written contract with any such express terms. Further, defendant's oral obligation to evaluate, appraise and recommend certain mineral investments did not necessarily imply any one county for performance. Consequently, the contract performance exception would not apply to this case and would not justify the filing of this action in Flathead Countv. See Erickson ~ 7 . TOIT ( 1 9 6 3 ) , 142 Mont. ? ? I , 385 P.2d 368. A plaintiff also has the option of bringing the action in the county where the alleged tort was committed. By statute: If the tort is interrelated with and dependent upon a claim for breach of contract, the tort was committed, for the purpose of determining the proper place of trial, in the county where the contract was to be performed. Section 2 5 - 2 - 1 2 2 ( 2 ) , MCA. This statutory determination of the situs of a tort generally applies only to a hybrid tort/contract case with an interrelated and dependent tort claim and a contract clearly indicating a place of performance. Slovak v. Kentucky Fried Chicken (1974), 164 Mont. 1, 7, 518 P.2d 791, 794. This statutory determination of the place of a tort in a hybrid case was not intended to create new law but only to codify existing case law. Weiss v. State (Mont. 1986), 712 P.2d 1315, 1317, 43 St.Rep. 82, 84, quoting from Comments by the Montana Supreme Court Commission on the Rules of Evidence. We thus interpret this statute as being in accord with existing case law. Montana case law resorted to this hybrid case rule when the contract clearly indicated a place of performance and the parties contested the place of the tort. See, Slovak, 518 P.2d at 794; see also Brown v. First Federal Sav. & Loan Ass'n of Great Falls (1964), 144 Mont. 149, 394 P.2d 1017. Consequently, when no clear place of performance is indicated in the contract, as in the present case, this hybrid case rule provides little guidance as to where a tort was committed. We therefore will look to the facts to determine the actual place where the alleged tort occurred. The facts in this case indicate that any tort resulting from defendant's alleged misrepresentation of the proper value of the mineral interests would have had to occur in Flathead County as this is the county where the defendant. met with the plaintiffs and the seller and discussed the value of the seller's mineral interests. Consequently, the District Court did not abuse its discretion when it denied defendant's motion to move the action to Dawson County. The District Court had to change the place of trial, upon motion, if the county designated in the complaint was not the proper county. Section 25-3-201 (11, MCA. Yet, the facts indicated that the alleged tort occurred in Flathead County and the plaintiffs were thus entitled to file this case in that county. The District Court's denial of the motion for change of venue is affirmed. we concur: & P Justices	January 25, 1989
db72512a-e5f5-45b5-b7a2-2dd851b59c0b	MARRIAGE OF EKLUND	N/A	88-320	Montana	Montana Supreme Court	No. 88-320 IN THE SUPREME COURT OF THE STATE OF MONTANA IN RE THE MARRIAGE OF: JOHN RANDOLPH EKLTJND , Petitioner and Respondent, and JANET DENISE EKLUND, Respondent and Appellant APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone The Honorable Robert W. Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Janet Denise Eklund, Pro Se, Billings, Montana For Respondent: J. Andrew Patten; Patt.en Law Firm, Billings, Montana J - LL C3 led : , W Submitted on Briefs: Jan. 5, 1989 Decided: February 3, 1989 3 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Janet Eklund (wife) appears pro se appealing the disso- lution decree entered by the Thirteenth Judicial District, Yellowstone County, apportioning the marital estate. Wife raises three issues on appeal: Did the District Court err by: (1) denying wife's motion to remove the judge for cause; (2) setting over $60,000 of the marital estate to husband as a traceable gift from his parents; (3) failing to compensate her for her contribution to the family home. We affirm. Janet and John Randolf Eklund (husband) lived together for three years before marrying in the spring of 1982. They were married for four years when husband filed for dissolu- tion in July 1986. One child was born as issue of this union. The parties reached a satisfactory custody and sup- port agreement adopted by the District Court which met all code provisions and child support guidelines. The equities of that agreement were not disputed at trial and are not a t . issue on appeal. On the January 4, 1988, opening day of trial, wife's attorney verbally moved for the district judge to remove himself for cause based on an off-the-record comment by the judge some three weeks earlier that the judge was acquainted with husband's parents some thirteen vears earlier. Wife ' s motion was denied. We agree. To remove a judge for cause, counsel must follow the procedure outlined in § 3-1-805, MCA, which provides general- ly that an affidavit alleging facts showing the judge's personal hias or prejudice must he filed thirty days in advance of trial. Once this affidavit and its accompanyinq certificate of good faith made by the counsel of record are filed, the judge shall have no more power to preside over the case, and the matter is referred to this Court. l l p o n that referral, the Chief Justice assigns another district iudge to hear the disqualification proceeding. None of that occurred in this case. Arguahly, wife's counsel never could have made the thirty-day deadline in this case since the alleged comment evidencing personal bias only came out three weeks prior to the scheduled hearing date. However, counsel's failure to act immediately upon that and failure to file the counsel's certificate of good faith is conspicuous. It appears that counsel was either trying to stall for time or to make an end run around the outlined statutory procedure--neither of which is acceptable. This motion was properly denied. Wife next contends that it was error to set aside $60,000 of the marital estate to husband. The $60,000 was equity in the family home. We disagree. The home was purchased by husband with funds borrowed from his parents, William and Doris Eklund, and evidenced bv a promissory note. The note named only the husband as obli- gor and named both parents as payees. Each year for three years the parents gave husband $20,000 in gift money as evidenced by forgiveness of debt. Each year, parents wrote husband a letter noting that $20,000 of his debt had been relieved. The promissory note and letters were received in evidence at the dissolution hearing. Parents testified at trial that although some of these letters were addressed to both husband and wife, their dona- tive intent was only to make a gift to husband. Each parent testified that they wanted to make a separate $10,000 gift to their son each year as the maximum gift thev could give without incurring tax liability, pursuant to the estate planning advice they had received. Each parent testified making similar gifts to their other children, also pursuant to their estate planning. The District Court set aside $60,000 of the marital estate evidenced by equity in the family home to husband and made a finding that it was a traceable gift from his parents. The finding is not clearly erroneous. Based on this evi- dence, we find no abuse of discretion by the trial court. Wife next contends that the Court did not adequatelv consider her contribution to the family home and compensate her for the same. We disagree, although at first blush the distribution of the marital estate appears unbalanced. Wife received $5,948 of the marital assets and a cash award of $6,000, payable in thirty days. Husband received an award from the marital estate of $70,335 less the $6,000 cash payment to wife. The following calculations were considered by the District Court: Husband: Wife: 70,335 net marital estate 5,948 net marital estate -60,000 gift from parents +6,000 -- cash award 10,335 - 6,000 cash payment to wife $4,335 total $11,948 total It is well established that divisions of the marital estate need only be equitable under the circumstances of each case and need not be exactly equal. In re the Marriage of Jacobson (1973), 183 Mont. 517, 600 P.2d 1183. The District Court took extensive testimony regarding the occupation of husband, of wife and of the condition of the familv home, which they were jointly improving. Wife estimated the value of their home improvements at $10,000 and testified that the supplies used in the improvements were purchased with joint funds. However, on cross-examination, wife admitted that this estimate was speculation because she did not purchase any of the materials, was not aware of their price, and had no background in real estate or appraisals. Husband testified that wife did one-third of the actual labor and estimated the value of their labor at far less than the wife. We do not find this distribution to be inequitable in this case, when any alternative award for contribution to the home would be purely speculative. It is evident from the court's findings of fact that the trial judge considered the wife's labors in the home improvement when he distributed assets of $5,948 to her and a cash award of $6,000. The court made specific findings as to wife's contribution in Finding VII where the court noted the improvements to the home and made a finding that wife's contribution to the project was twenty hours of labor. This contribution has been compensated. Wife fails to convince us that it was error by the trial court not to award her $10,000 for her contribution to the home improvements. Wife had a heavy burden on this appeal. She needed to show that the findings of the judge were clearly erroneous as to each issued raised, and thus an abuse of the judge's discretion based on the evidence of this case. In re the Marriage of Stewart (Mont. 1988), 757 P.2d 765, 45 St.Rep. 850. Wife did not carry that burden, demonstrated by the foregoing evidence. Judgment affirmed. A/ We concur:	February 3, 1989
9d09c0be-75a8-4687-9d27-05d72243963d	PROUT v SEARS ROEBUCK COMPANY	N/A	88-117	Montana	Montana Supreme Court	I N THE SUPREME COURT O F T H E STATE O F M O N T A N A TAMMY PROUT, P l a i n t i f f and Appel3ant, -vs- SEARS, ROEBUCK and C O M P A N Y , and TERRY McGINNIS, Defendants and Respondents. APPEAL F R O M : D i s t r i c t Court o f t h e F i r s t J u d i c i a l D i s t r i c t , I n and f o r t h e County o f Lewis and C l a r k , The Honorable Henry Loble, LTudge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: Randy K . Dix argued, Helena, Montana For Respondent: John S u l l i v a n argued; Hughes, K e l l n e r , S u l l i v a n & Al.ke, Helena, Montana Submitted: November 2 8 , 1988 Decided: February 1 6 , 1989 F i l e d : Honorable Frank I. Haswell, Retired Chief Justice, delivered the Opinion of the Court. In this action for wrongful termination of employment, the underlying issue is whether there is a genuine issue of material fact precluding summary judgment. The District Court held there was none. We disagree. Plaintiff Tammy Prout, an employee of the Sears cata- logue store in Helena, Montana, was fired by Terry McGinnis, the store manager, on December 2, 1986. The reason for termination given by Sears to Tammy was falsification of her time sheets showing the hours she worked on two occasions. She sued Sears and McGinnis for wrongful termination of her employment, alleging breach of the implied covenant of good faith and fair dealing, negligent firing, estoppel and negli- gent infliction of emotional distress. The defendants an- swered claiming that Tammy was an employee at-will subject to termination for any reason deemed sufficient by Sears, with- out any reasonable expectation of job security; accordingly, the implied covenant of good faith and fair dealing did not exist in the employment relationship between Sears and Tammy and cannot be used as a basis for her claim of wrongful discharge. Following pretrial discovery and entry of a pretrial order pursuant to Rule 16, M.R.Civ.P., the District Court of Lewis and Clark County granted the defendants' motion for summary judgment holding there was no genuine issue of mate- rial fact presented and that defendants were entitled to judgment as a matter of law. The undisputed facts disclose that plaintiff went to work at the Sears catalogue store in Helena on a part-time basis when she was a sixteen-year-old high school student. At that time she signed an employment application reading in pertinent part: "In consideration of my employment, I agree to conform to the rules and regu- lations of Sears, Roebuck & Co. and my employment and compensation can be terminated with or without notice, at any time, at the option of either the company or myself. I understand that no unit manager or representative of Sears, Roebuck & Co. other than the president or vice president of the company, has any authority to enter into any agree- ment for employment for any specified period of time, or to make any agreement contrary to the foregoing. When plaintiff was hired four days later she signed a personal record card containing the following language: "In consideration of my employment, L agree to conform to the rules of Sears, Roebuck & Co. and my employment and compensation can be terminated, with or without cause and with or without no- tice, at any time, at the option of either the company or myself. June 4, 1979. /s/ Tammy Sharpe [Prout]" The agreed facts in the pretrial order further indicate that Tammy was initially hired as a sales person but a little over two years later, on August 10, 1981, she was promoted to the position of machine operator and given a twenty cent per hour increase in pay due to the higher technical skills required of the machine operator's position. On January 2, 1983, Tammy was promoted to the position of Division Head A (supervisor) and received a pay increase of $1.50 per hour. The agreed facts further state that "Tammy Prout was given these promotions because her supervisors were generally satisfied with her job performance." On December 2, 1986, Terry McGinnis advised Tammy that her employment with Sears was terminated effective that date. During Tammy's employment at the Helena Sears store Sears changed managers five times. At least three of these managers gave performance evaluations on Tammy reporting that she had difficulties with absenteeism and tardiness which needed attention and correction. These reports and other warnings given to Tammy were both written and verbal. The reason given by Sears to Tammy for her termination was falsi-. fication of two time sheets although McGinnis, the manager, also claimed he asserted absenteeism and tardiness. At the heart of this dispute is Sears's time-keeping and payment system. Sears paid its employees in the Helena store every Friday for the preceding week on the basis of time sheets due at the central payroll office each Thursday for the entire work week. Thus, if an employee was scheduled to work on Friday and Saturday, the employee would enter the scheduled hours for those days on the Thursday time sheet and be paid accordingly on Friday of the following week. If, in fact, the recorded Friday and Saturday hours were not worked as scheduled, the employee was supposed to teletype the correction of hours to the central payroll office the follow- ing Monday. The weekly time sheets signed by Tarnmy contained this language : "I have recorded my actual starting and quitting time each day. Any falsifica- tion will subject me to immediate dismissal." This was signed by Tammy each week as she sent in her weekly time sheet. Tammy believed that it was an acceptable practice to make up the necessary hours during the next work week rather than to teletype the corrections into the central payroll office on the Monday following a missed day. Tammy and two former employees of the Helena Sears store testified by deposition this was an accepted store practice under two prior store managers. The existence of this practice was disputed by defendant McGinnis and several current employees. During two pay periods in November, 1-986, Tammy missed time at work which she had recorded on her time sheets as having worked. She did not teletype in the Monday correc- tions adjusting her pay. Tammy was paid for these hours which were missed. She was attempting to make up the hours missed on a compensatory time basis. Both of the two incor- rect time sheets were observed by manager McGinnis, and he promptly fired Tammy for this reason when she returned to work after receiving the pay check under the second inaccu- rate time sheet. The pretrial order lists the following issues of fact, among others, that remain to be litigated upon the trial: 1. Whether defendants acted unfairly and in bad faith towards plaintiff; 2. Whether defendants acted in a negligent manner; 3. Whether defendants negligently inflicted emotional distress upon plaintiff; 4. Whether defendants are equitably estopped from relying upon the language in the employment application and personal record card regarding termination without cause or notice; 5. Whether defendants led plaintiff to believe that her time-keeping procedures were acceptable to them, and, if so, whether defendants are equitably estopped from terminat- ing plaintiff for allegedly falsifying her time sheets; 6. Whether plaintiff acted negligently concerning her termination. One of the issues of law listed in the pretrial order is whether the provisions of plaintiff's employment application and personal record card bar the claims asserted in this lawsuit. The pretrial order notes that this legal issue is the subject of a pending motion for summary judgment by defendants. The gist of the District Court's ruling on the motion for summary judgment is contained in the followinq language: "The sole issue decided by the Court is that plaintiff's claims are precluded as a matter of law by the language of plaintiff's employment application and her personal record card. That language in clear and unequivocal terms notified plaintiff that her employment could be terminated at any time and for any reason, and defeats the claims plaintiff is attempting to assert in this case." At the outset, we note that this case is governed by the law that existed at the time of firing, December 1986, and is no way affected by legislation enacted by the 1987 legislature. Montana's at-will employment statute provides in perti- nent part : "TERMINATION AT WILL. An employment having no specified term may be termi- nated at the will of either party on notice to the other, except where other- wise provided by [statute] ." Section 39-2-503, MCA. Notice prior to termination is not required. Gates v. Life of Montana Insurance Company (19821, 196 Mont. 178, 638 P.2d 1063 (Gates I) . None of the statutory exceptions are applicable to this appeal. Because of the harshness of this statute when applied literally and mechanically to all at-will employment termina- tions (Nye v. Dept. of Livestock (1982), 196 Mont. 222, 639 P.2d 498), and because of abuses inherent in employment relationships between parties of unequal bargaining power (Dare v . Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015; Stark v. The Circle K Corporation (Mont. 1988), 751 P.2d 162, 45 St.Rep. 3771, courts in Montana and elsewhere, to achieve justice in a wide variety of employment situations, have established exceptions to the unlimited discretion of the at-will employer to discharge his employ- ees. We need not concern ourselves here with a survey and exposition of the law in this area nationally or in other jurisdictions, as Montana has proven to be a fertile field for such litigation and has developed its own law and prece- dent accordingly. Aside from statutory enactments, Montana courts have recognized four exceptions to the right of the at-will em- ployer to discharge its employees: 1. When the discharge violates public policy: Keneally v. Orgain (1980), 186 Mont. 1, 606 P.2d 127; Staudohar v. Anaconda Co. (D. Mont. 1981), 527 F.Supp. 876; Nye v. Dept. of I~ivestock, supra. 2. When the discharge breaches an express or implied promise of job security: Gates I, supra; Dare v. Montana Petroleum Marketing Co., supra; Stark v. The Circle K Corporation, supra. 3. When the discharge breaches the implied covenant of good faith and fair dealing: Gates I, supra; Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213 (Gates 11) ; Dare, supra; Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487; Malloy v. Judges Foster Home Program (Mont. 1987), 746 P.2d 1073, 44 St.Rep. 1996; Stark, supra. 4. Negligent discharge: Crenshaw, supra. These four exceptions frequently overlap. For a good exposition of the Montana law in this area, see Hopkins and Robinson, - Employment - At-Will, Wrongful Discharge, and the - - Covenant - - of Good Faith and Fair Dealing in Montana, Past, -- 7 Present, and Future, 46 Mont. L. Rev. 1 (1985). In this case we have an express, written, at-will employment relationship between Sears and Tammy, giving Sears the right to terminate her employment, without notice, with- out cause and providing that any falsification of time sheets would subject Tammy to immediate dismissal. We have a pre- trial order approved both as to form and content by the attorneys for the respective parties, signed and entered by the district judge, and listing what the parties considered eight issues of fact remaining to be litigated at the trial. Fact issues listed include whether the defendants acted unfairly and in bad faith toward the plaintiff; whether defendants acted negligently concerning plaintiff's termina- tion; whether defendants led plaintiff to believe that her time-keeping procedures were acceptable to them, and, if so, whether defendants are equitably estopped from terminating plaintiff for allegedly falsifying her time sheets; and whether defendants are equitably estopped from relying upon the language in the emplovment application and personal record card regarding termination without cause or notice. At first blush it would appear that at least some of these fact issues are really issues of law and that some of them are mixed questions of fact and law. However, the parties treated them as issues of fact and, underlying all these listed issues, are numerous factual disputes concerning Tammy's job performance, the reason for and manner in which she was discharged, the employer's practice concerning time-keeping procedures, and related matters. The District Court held as a matter of law that the language of Tarnmy's employment application and personal record card barred her claims in this action, thus rendering the fact issues listed in the pretrial order irrelevant. In deciding this appeal we need not further detail the evidence developed in pretrial discovery. The parties con- cede the existence of numerous fact issues for litigation at trial by approving the content of the pretrial order. These must be resolved to determine whether plaintiff's claims fall into any of the four exceptions to the right of the at-will employer to discharge its employees. This precludes summary judgment. Our decision in this appeal turns on the facts peculiar to this case. It is not to be read as a carte blanche to the jury in every wrongful discharge case. The distinguishing characteristics in this case are the agreement by the attor- neys that the listed fact issues in the pretrial order "re- main to be litigated upon the trial"; the alleged conduct of the employer in discharging its employee for dishonesty consisting of a time-keeping practice that allegedly had been condoned on prior occasions and which allegedly made it difficult, if not impossible, for the discharged employee to secure further employment; and the alleged negligence of the employer. In this case we neither expand the exceptions to the at-will rule nor create jury issues out of thin air, but simply apply Montana precedent to this case. At the same time we give effect to the employment application and record. card. These give the employer the right to fire without cause. They do not give the employer the right to fire for a false cause. If the at-will employer who can fire without cause under the employment contract chooses instead to fire an employee for dishonesty, the discharged employee must be given the opportunity to prove the charge of dishonesty false. The foregoing limitation on an employer's right to fire without cause was recently stated by Justice Harrison: "Employers can still terminate untenured employees at will and without notice. They simply may not do so in bad faith or unfairly without becoming liable for damaqes." Crenshaw v. Bozeman Deaconess Hospital, 693 P.2d at 492. We vacate the summary judgment, dismiss the claim for negligent infliction of emotional distress as having insuffi- cient basis, and remand the balance of the case to the Dis- trict Court for further proceedinqs. 3;Ac4,, W',&< Hon. Frank ' I . Haswell, sitting in place of Justice William E. Hunt, Sr. We concur: Chief Justice Mr. Justice Fred J. Weber dissents as follows: I The majority has not addressed the key legal issue presented in this case. Where the Sears-Prout written con- tract is clear and unambiguous, can the covenant of good faith and fair dealing be implied in such a manner as to negate the express contractual terms and allow recovery of tort damages? The District Court concluded that the plaintiff's claims were precluded as a matter of law because of the clear and unambiguous language of the employment application and per- sonal record card. On appeal, the majority reverses the District Court, concluding that there are issues of fact which preclude the granting of summary judgment. To reach that conclusion, it is necessary to ignore the terms of the written contract because those terms would preclude a factual inquiry into Sears' termination of Tammy Prout. The majority opinion implies that the terms of Sears1 employment contract can be disregarded by a court of law. The majority has also implied that the employment at-will statute has no signifi- cance here. I do not agree with such a result. For that reason, I believe that it is necessary to critically examine the Montana cases and to compare our analysis of the law with that of other jurisdictions. I1 In the 15001s, the English common law presumed that an employment contract with an annual salary computation was for a one year term. In the early 19th century, American courts borrowed the English rule, concluding that the rule was consistent with the predominant master-servant employment relationships of that time. Then, in apparent response to economic changes sweeping the country, American courts abandoned the English rule and adopted the employment-at-will doctrine. This became the common law doctrine generally followed in the United States. Under that doctrine an employer was free to fire an employee hired for an indefinite term for good cause, no cause, or even for cause morally wrong, without being guilty of legal wrong. See generally, Wagonseller v. Scottsdale Memorial Hospital (Ariz. 1985), 710 P.2d 1 0 2 5 . In 1895 Montana enacted its termination at-will statute providing: An employment having no specified term may be terminated at the will of either party on notice to the other . . [with exceptions not here applicable] That section was adopted from the Field Civil Code, and has remained essentially unchanged until the 1987 enactment of the Wrongful Discharge from Employment Act, codified as S S 39-2-901 to 914, MCA. The facts here preceded the enact- ment of that Act, which therefore does not apply in this case. As pointed out in Wagonseller, the trend in the United States has been to create exceptions to the at-will employ- ment doctrine with the result that the employer's unlimited discretion to discharge at will has been limited. As pointed out in the majority opinion, most jurisdictions including Montana recognize an exception based on the employer's viola- tion of public policy. Several jurisdictions have recognized an exception based on an implied-in-fact promise of employ- ment for a specified term. Other jurisd.ictions have recog- nized an exception where there is an implied-in-law contract term known as the impl-ied covenant of good faith and fair dealing. California has been one of the leading jurisdictions recognizing both an implied-in-fact contract to discharge only for good cause (See, Pugh v. See's Candies, Inc. (1981), 116 Cal.App.3d 311, 171 Ca1.Rptr. 917), and the implied covenant of good faith and fair dealing in employment con- tracts (See, Cleary v. American Airlines, Inc. (1980), 111 Cal.App.3d 443, 168 Cal.Rptr. 722). The court in Cleary held that an employer's breach of the covenant would support an employee's action in either tort or contract. That theory was adopted in a number of other appellate court decisions of the state of California. California reversed that position by its Supreme Court decision dated December 19, 1988, Foley v. Interactive Data Corp., (Cal. 1988), 765 P.2d 3?3. In Foley the majority made a detailed review of cases in California and elsewhere. In a similar way the dissents carefully reviewed the contrary positions in detail-. Foley is an excellent case through which to study the development of law in this entire area. The California Supreme Court concluded that an action based upon the implied covenant of good faith and fair dealing was an action upon contract and that tort damages were not recoverable. The Court considered the application of bad faith insurance cases to the employ- ment context and stated: In our view, the underlying problem in the line of cases relied on by plaintiff lies in the decisions' uncritical incorporation of the insur- ance model into the employment context, without careful consideration of the fundamental policies underlying the development of tort and contract law in general or of significant differences between the insurer/insured and employer/employee relation- ships. When a court enforces the implied covenant it is in essence acting to protect "the interest in having promises performed" (Prosser, Law of Torts (4th ed. 1971) p. 613)--the traditional realm of a contract action--rather than to protect some general duty to society which the law places on an employer without regard to the substance of its contractual obligations to its employee. . . . The covenant of good faith is read into contracts in order to protect the express covenants or promise of the contract, not to protect some general public policy interest not directly tied to the contract's purposes. The insurance cases thus were a major departure from traditional principles of contract law. 765 P. 2d at 393. I agree with the foregoing analysis and with the conclusion reached by the Court: We therefore conclude that the employment relationship is not sufficiently similar to that of insurer and insured to warrant judicial extension of the proposed additional tort remedies in view of the countervailing concerns about economic policy and stability, the traditional separation of tort and contract law, and finally, the numerous protec- tions against improper terminations already afford- ed employees. 765 P.2d at 396. After its careful review of the numerous California appel-late decisions holding to the contrary, the California Supreme Court then reached the following holding: . . . as to his cause of action for tortious breach of the implied covenant of good faith and fair dealing, we hold that tort remedies are not avail- ---- -- able for breach of the implied covenant in an - - - - employment contract to employees who allege they have been discharged in violation of the covenant. (Emphasis supplied. ) 7 6 5 P. 2d at 401. As will more fully appear in this dissent, I agree with the holding of the California Court. California joined the majority of jurisdictions in the United States which have either expressly rejected the notion of tort damages in such cases or impliedly done so by rejecting the covenant in employment at-will contracts. Under the majority opinion in t-his case, Montana remains one of the few, if not the only jurisdiction, which would allow recovery of tort damages for a breach of the implied covenant. I conclude that such a result is inconsistent with the general princi- ples of contract law. I11 As I review the cases of other states and compare them to Montana's cases, I believe it is essential to reanalyze our position in previous cases with regard to the covenant of good faith and fair dealing and the right of recovery in tort. In Gates v . Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063, (Gates I) the majority concluded that the employee entered into an employment contract terminable at will; the employer later promulgated a handbook of personnel policies with termination procedures; the employer presumably sought to secure an orderly, cooperative and loyal work force by these uniform policies; the employee then developed the peace of mind associated with job security; and if the em- ployer failed to follow its own policies, the peace of mind of its employees was shattered. V 7 e therefore said: We hold that a covenant of good faith and fair dealing was implied in the employment contract of the appellant. There remains a genuine issue of material fact which precludes summary judgment, i.e. whether the respondent failed to afford appel- lant the process required and if so, whether the respondent thereby breached the covenant of good faith and fair dealing. 638 P. 2d at 1067. The summary judgment was reversed and the case was remanded to the lower court. As I review that case, I find some contradictions in the opinion. We stated that the employee handbook was not a part of the plaintiff's employment contract when she was hired and could not have been a modification of her contract because there was no new and independent consideration. We also stated that an employee handbook distributed after the em- ployee is hired does not become a part of the employee's contract. These statements seem inconsistent with the hold- ing that "a covenant of good faith and fair dealing was implied in the employment contract." We will further discuss the question of whether or not a covenant implied in the contract is in some manner contractual in nature. In Gates v. Life of Montana Ins. Co. (1983) , 205 Mont. 304, 668 P.2d 213, (Gates 11) , the majority again considered the same case and concluded that the jury verdict in favor of the plaintiff for $1,891 in compensatory damages and $50,000 in punitive damages should be affirmed. The majority re- ferred to Lipinski v. Title Insurance Co. (1982), 202 Mont. 1, 655 P.2d 970, in which this Court held that punitive damages could be assessed for a bad faith insurance practice in the absence of a statutory provision. The Gates I1 major- ity further explained that an action for breach of an implied covenant of fair dealing at first blush may sound both in contract and in tort, but that the duty arises out of the employment relationship and yet exists apart from and in addition to any terms agreed to by the parties. The majority stated that the duty is much like the duty to act in good faith in discharging insurance contractual obligations and that such a duty is imposed by operation of law and its breach should find a remedy in tort. The majority referred to a 1906 Indiana case as authority. Without other signifi- cant authority the majority concluded: We hold that S 27-1-221, MCA, [the section which provides that in any action "not arising from contract" where the defendant has been guilty of oppression, fraud, or malice, the jury may give exemplary or punitive damages] only exempts breach of contract actions from its provisions. Breach of the duty owed to deal fairly and in good faith in the employment relationship is a tort for which punitive damages can be recovered if defendant's conduct is sufficiently culpable. 668 P.2d at 215. This is a key holding which I believe should be reexam- ined. As pointed out by Justice Gulbrandson in his dissent to Gates 11, by allowing punitive damages the majority ap- proved an independent tort of bad faith in at-will employment contracts whereas all other jurisdictions do so only when the determination violates public policy. In my own dissent I pointed out that Gates I1 was an action for the breach of the covenant of good faith and fair dealing, arising from the -- contract from which that covenant is implied. I pointed out that § 27-1-221, MCA, allowed punitive damages in any action not arising from contract. I suggested that it seemed clear that the breach of the contractual obligation did not justify an award of punitive damages under the express terms of the statute. It is not appropriate in dissent to review all of the cases which have considered these theories. However, I do refer to Stark ~ 7 . Circle K Gorp. (Mont. 1988), 751 P.2d 162, 45 St.Rep. 371. While I joined in that opinion, as I again review the matter, 1 question the following conclusions reached in Stark: that the covenant is implied as a matter of law based on the public policy of this state; that it does not depend on contractual terms for its existence; that the covenant of good faith and fair dealing is not subject to contractual waiver, express or implied; and that the duty exists apart from and in addition to any terms agreed to by the parties. It is important to consider the evidence which was hefore the Court in Stark as compared to the present case. It is true that in - - Stark there was a provision by which the employee agreed that he could be dismissed with or without cause. However, there were extensive provisions adopted by the employer including a policy guide with regard to termination, which Stark's supervisor admitted was the policy guide which applied to the termination of Stark. That guide, of course, contained many provisions with regard to the manner of termination and the just cause requirement.. That should be distinguished from the present case where there is no evidence that Sears issued any similar employer provisions with regard to either just cause or termination. As I review the cases from other states, and consider both Stark and the present case, I conclude that the type of action in both Montana cases more properly should be de- scribed as one for the breach of "an implied-in-fact con- tract" as described in detail in Foley. I approve of the California analysis in Foley which pointed out that such impl-ied-in-fact contract terms ordinarily stand on equal footing with express terms; and concluded there is no analyt- ical reason why an employee's promises to render services or his actual rendition of services may not support an employ- er's promise to refrain from arbitrary dismissal. The Cali- fornia court noted that permitting proof of and reliance on implied-in-fact contract terms does not nullify the at-will rule, it merely treats such contracts in a manner in keeping with general contract law. I agree with the conclusion of the California court which found no sound reason to exempt the employment relationship from the ordinary rules of con- tract interpretations which permit proof of implied terms. As a result, I conclude in both Stark and the present case that a more detailed analysis leads to a conclusion that the covenant of good faith is a part of the implied-in-fact contract and. should be treated as are other contract cases. It then logically follows that tort damages are not recoverable. In our analysis of the law, we should also consider the law previously adopted in Montana as it may apply to the present case. In Keith v. Kottas (1946), 119 Mont. 98, 172 P.2d 306, we quoted from 12 Arn.Jur., p. 505, which stated that there cannot be an express and an implied contract for the same thing existing at the same time so that no agreement can be implied where there is an express one existing. The Keith case has been subsequently cited in Weston v. Montana State Highway Commission (1981), 186 Mont. 46, 606 P.2d 150 and McNulty v. Bewley Corporation (1979), 182 Mont. 260, 596 P.2d 474. This same theory is more clearly restated in 17 Arn.Jur.2d 649 as follows: Intention or meaning in a contract may be manifest- ed or conveyed either expressly or impliedly, and it is fundamental that that which is plainly or necessarily implied in the language of a contract is as much a part of it as that which is expressed. . . . Therefore, whatever may fairly be implied from the terms or nature of an instrument is, in the eyes of the law, contained in it. In addition, this authority states at 17 Am.Jur.2d 652: No meaning, terms, or conditions can be implied which are inconsistent with the expressed provi- sions. Expressed stipulations cannot, in general, be set aside or varied by implied promises. In other words, a promise or covenant is not implied where there is an express written contract pro~ri- sion covering it. Clearly this contradiction between the theory of an implied covenant and the existing written contract provision should be considered. Here we have a clear and unambiguous express contract which negatives the idea of an implied covenant. B o t h Foley and Waqonseller point out that many jurisdictions in consideration of the Sears form of contract have refused to allow any form of implied covenant. I would therefore conclude that the covenant of good faith and fair dealing in Montana is an implied-in-fact portion of the contract itself which is subject to general contract analysis under the law of Montana. I would also conclude that any violation of such an implied-in-fact cove- nant allows recovery only of contract damages and that puni- tive damages are not recoverable. I V In the present case, the District Court concluded that the plaintiff's claims were precluded as a matter of law by the language of the contract because that language in clear and unequivocal terms notified the plaintiff that her employ- ment could be terminated at any time and for any reason, and therefore defeated the claims asserted by the plaintiff. The majority has chosen not to address this fundamental legal issue, instead returning the case to the lower court because of the claimed presence of material issues of fact precluding summary judgment. I disagree with that procedure. Here we have facts which are significantly different from Gates I or Stark. In both of those cases there had been extensive conduct by the employer from which the covenant of good faith properly could be implied. Here, there is no evidence of conduct of that nature on the part of the employ- er. In addition, we have the specific contractual limitation which provides that no representative of Sears other than the president or vice president has any authority to modify the written contract which allows termination with or without notice, at any time. Neither Gates I nor Stark had a similar contract provision. Here Prout agrees that there was no modification of the written contract by the authorized offi- cers of Sears. Under the facts presented for consideration at summary judgment, I do not conclude there is a material issue of ultimate fact which has been presented by the plaintiff. In accordance with the Foley analysis, I would add that there has been no violation of public policy which justifies a tort theory of recovery. I would therefore conclude that the District Court should be affirmed because Prout's claims are precluded as a matter of law by the language of the contract between the employer and the employee, and because of the absence of any violation of public policy. L Chief Justice J.A. Turnage and Justice L. C. Gulbrandson concur in the foregoing dissent. IN THE SI!PREME COTJRT OF THE STATE OF MONTAFA 5 C -s 0 3 a - W No. 88-117 - ' ~ f 3 1 : " -- 0 2 , . - 5 - ---- C i - - ru 2 TAMMY PFOUT, r 1 Appellant, AMENDFEST~T ! DISSENT #I~TT;CE v. ) PART O F , Q P I ~ N IF ENTITEE& C ~ S E SEARS, FOERIJCK AND COMPANY and TERRY McGINNIS, Respondents. DATED A D F ~ E D 1 A P R I L 3 7 , 1989 Subsequent to this opinion, Sears filed a petition for rehearing. In that petition, Sears argues that the majori- ty's emphasis on factual issues contained in the pretrial order is erroneous. This is because the interpretation of the pretrial order had. not been suggested by either party, was not considered by the District Court in granting summary judgment, and is a matter which first appears in the majority opinion as the basis for reversal. The basic issue presented to the District Court and to this Court on appeal was whether the language of the employ- ment contract and the employee record card, without evidence of modification, precluded the plaintiff's claims as a matter of law so that summary judgment was proper? Rased on the evidence before it, the District Court concl-uded that the plaintiff's claims were precluded as a matter of law and that no material issues of fact existed which would render a granting of summary judgment improper. A review of the materials before the court reveals no facts alleged by the plaintiff that she had devel~ped any sense of'job security or that her at-will employment contract had been modified in any way, either expressly or impliedly. The contested facts regarsing Tammy Prout's conduct, her treatment, or Sears' timekeeping policies were contained in the pretrial order and were expressly reserved pending the motion fcr summary judg- ment. I conclude that it was improper for this Court to have ignored the basic inquiry as to whether plaintiff's claims. were precluded as a matter of law, and to focus i~stead on factual issues in the pretrial orZer which were secondary to the pending motion. Whether Sears is entitled to a rehearing on the matter is governed by Rule 34, M.R.App.P. Rule 3 4 ( 2 ) , M.R.App.P., provides that a party is enti- tled to a rehearing if it can show that the Court has over- looked any questions decisive of this case. By deciding the propriety of summary judgment based upon factual issues presented in the pretrial order which were understood to be reserved pending the motion, the majority has indeed over- looked the basic inqui.ry in this case: whether the plain- tiff's claims were precluded. by the at-will employment contract which she signed, which remained unmodified, and to which there had been no Factual al-legations of job security. Had the majority square1.y addressed this issue, I do not see how i t . could have reached the result in this opinion. T v r o u l r 2 grant Sears' petition ' o r rehearing an2 allow reconsideration ef this case without j.nterpretlng the pretri- al order. The basic inquiry as to whether plaintiff's c1.aj.m~ are precl.uded as a matter of law should be ad6ressed in Zeciding whether summary judgment was proper. Mr. Justice L. C. Gu!.brandson j amendment to the dissent. Mr. Chief Justice J. A. Turnage joins in the foregoing amendment to the dissent. IN THE SUPREME COURT OF THE STATE OF MONTANA No. 88-117 TAMMY PROUT, Plaintiff and Appellant, SEARS, ROEBUCK AND COMPANY, and TERRY McGINNIS, Defendant and Respondent. O R D The petition for rehearing is denied. *iJ-4, DATED this day of Bplk, 1989. z d 2 . . . B . ~ G & , J Q Hon. Frank I . ~aswe71, ~etired- chief Justice, sitting in place of Mr. ~ustice ~i'lliam E. Hunt Mr. Justice Fred J. Weber, Mr. Justice L.C. Gulbrandson, and Mr. Chief Justice J.A. Turnage would have granted the petition for rehearing and have modified their dissent to address issues raised in the petition for rehearing.	February 16, 1989
4bfc3836-27c9-4290-9209-e952b0330c3b	CONTINENTAL OIL COMPANY v ELKS NAT	N/A	88-331	Montana	Montana Supreme Court	IN THE SIJPREME COURT OF THE STATE OF MONTANA CONTINENTAL OIL COMPANY, a corporation, Petitioner ELKS NATIONAL FOUNDATION, a legal entity; FLOYD R. YOUNG; CHAD RANDALL YOUNG by his guardian SHERRY L. YOUNG; JOSHUA LEE YOUNG, by his guardian SHERRY L. YOUNG, MICHAEL EDWIN MAXWELL, by his guardian SHIRLEY G. JOHNSON; CORINNA NELL MAXWELL, by her guardian SHIRLEY G JOHNSON; LOIS E. LaRUE RIGGINS; SHERRY L. YOUNG; JAMES BYRD; JOSEPH EDWIN MAXERLL, JR.; BETTY WILSON; MARY JO BYRD; THOMAS A. LARSON and GENE HUNTLEY, Respondents ORIGINAL PROCEEDING: COUNSEL OF RECORD: For Petitioner: Chris Mangen, Jr. argued, Crowley, Haughey, Hanson, Toole & Dietrich; Billings, Montana For Respondents: Gene Huntley argued, Baker, Montana James L. Sandal1 for Amicus Curiae Frank A. Gunnip t - and Robert P. Schwinn, Billings, Montana e 3 - 0 0 2 0 4: w.J -l a Submitted: December 13, 1 9 8 8 E_ L . 3 LLJ Decided: January 25, 1989 @ a - - r c 0 " 2 - ", -, T C r l dl ," . . * - F & e @ o, -+i ZE , z c T : 4 -3 ul-- ZZ 03 0 W - r . , 2 - ' " Eferk Mr. Justice Fred J. Weber delivered the Opinion of the Court. This is an application for a writ of supervisory control under Rule 17, M.R.App.P. It follows a summary judgment by the District Court for the Sixteenth Judicial District, Fall-on County, which adjudicated the ownership of the working interest in an oil and gas lease. We accept supervisory control and reverse the judgment of the District Court. The issue is whether this Court should issue a writ of supervisory control to determine the extent of Continental. Oil Company's ownership in the oil and gas lease. This case was before the Court previously as Gunnip 1 7 . Continental Oil Co. (Mont. 1986), 727 P.2d 1315, 43 St.Rep. 1605. That opinion sets forth the complicated history of the ownership of the working interest in the N4 of the NP3 of Section 8, Township 7 North, Range 60 East. In all discus- sion in this opinion, we are referring to that working inter- est. In the Gunnip opinion, this Court indicated the ownership of the working interest, as established in previous judgments relating to the property, as follows: half of the NjNW$ in H.W. McDonald, subject to a 1962 ratification agree- ment with Continental Oil Company (Continental), and the other half of the NjNW$ in Frank Gunnip. Gunnip, 727 P.2d at 1316. The Court remanded the case to District Court for joinder of essential parties and "to assess Continental's interest considering potential application of adverse posses- sion, waiver and estoppel." Gunnip, 727 P.2d at 1317. The plaintiffs in the present case trace their ownership in the NqNWt to conveyances from H.W. McDonald subsequent to the 1962 ratification agreement. The effect of the 1962 ratification agreement was argued on remand. The District Court ruled that the intent of the parties to the ratifica- tion was that Mr. McDonald conveyed to Continental one half of his interest in the NiNW$. It ruled that the ownership of the N$NW$ is as follows: one half in Frank Gunnip and his assigns, one fourth in pl-aintiffs, and one fourth in Conti- nental. Continental filed a notice of appeal to which plain- tiffs objected because certification had not been obtained from the lower court as required by Rule 54 (b) , M.R.Civ.P. We allowed an opportunity for the lower court to c e r t i ' y its partial summary judgment, hut the court declined to do so. Continental now asks this Court to exercise its power of supervisory controol. At oral argument, counsel for plain- tiffs ioined in the request that this Court determine the interest of Continental in the NiNW$. Frank Gunnip and his assign Robert Schwinn, who were formerly plaintiffs, have obtained separate counsel and have been redesignated by the lower court as defendants. They have filed a third-party complaint below, asserting their right to one half of the working interest in the NiNW$. In their brief to this Court, they take no position on the application for supervisory control but ask that their one half interest in the working interest in the N B N W ~ be acknowledged. Should this Court issue a writ of supervisory control to determine the extent of Continental's ownership in the oil and gas lease? Our caselaw has set forth the standard to be employed in determining whether supervisory control under Rule 17, M.R.App.P., is warranted. Supervisory control is proper to control the course of litigation when the lower court has made a mistake of law or willfully disregarded the law so that a gross injustice is done and there is no adequate remedy by appeal; also, to prevent extended and needless litigation. State Highway Com'n. v. District Ct., Thirteenth J.D. (1972), 160 Mont. 35, 42-43, 499 P.2d 12281 1232- As the opinion in Gunnip stated, the 1962 ratification agreement signed by Mr. McDonald provided that: . . . the undersigned, H.W. McDonald, does hereby ratify, adopt and confirm said assignment, in all things with the same force and effect as if the undersigned had been named the assignor therein and had duly executed and delivered said assignment to Continental Oil Company. For the same consideration, the undersigned does hereby transfer, assign, set over and convey unto Continental Oil Company an undivided one-half ( $ 1 interest in the oil and gas lease above described . . . Gunnip, 727 P.2d at 1316. The plaintiffs argue here, as they did before the District Court, that the ratification is ambiguous so that a court must look beyond the four corners of the document to interpret it. The Court was not persuaded by that argument in Gunnip, nor is it now. We stated: There remain unresolved issues of material fact regarding the interest of Continental. Al- though McDonald conveyed an "undivided one-half interest" in the Lease under the ratification agreement, Continental admits in its brief that it did not treat its 50% interest in the N$ of the NWi as being derived solely from McDonald until judq- ment no. 4062 was entered. In 1964 McDonald as- signed undivided interests to Huntley, Iverson, and Larson. Huntley, Iverson and Larson have claimed under this assignment adverse to the interest Continental now claims under the ratification agreement. A trial must be held to assess Conti- nental's interest considering potential application of adverse possession, waiver and estoppel. Gunnip, 727 P.2d at 1317. In the above quotation, this Court recognized that the ratification conveyed an "undivided one-half interest" in the lease. Then, as now, we Found no ambiguity in the ratification agreement. We remanded so that adverse posses- sion, waiver, and estoppel could be considered as theories under which Continental might have subsequently lost or forfeited any portion of its one half interest. The District Court ignored this Court's opinion and reconsidered the effect of the ratification agreement. We therefore grant supervisory control. We have considered all materials and evidence submitted by plaintiffs, including copies of certain oil division orders and correspondence between Continental and plaintiffs' attorney. We have considered whether those might support a theory of adverse possession, waiver, or estoppel against Continental. However, we find nothing to indicate that Continental has relinquished its claim to any portion of one half of the working interest in the NjNWa. The documents reflect Continental's mistaken reliance, at that time, on the validity of interests claimed by Vernon Eide and J. Von DeLinde. This ended after the 1 9 7 0 judgment voiding the conveyance to Mr. Eide and Mr. Von DeLinde and vesting owner- ship in Gunnip. See Gunnip, 7 2 7 P.2d at 1 3 1 6 . Plaintiffs contend that the documents demonstrate that Continental relied upon a conveyance to it from Mr. Eide and Mr. Von DeLinde. We do not accept that contention. The mere state- ment in the letters and division order of a supposed interest held by Eide and Von DeLinde is not enough to establish a loss of the interest conveyed to Continental from H.W. McDonald. The documents also indicate that Mr. Huntley and two other McDonald assigns held interests in the lease. They do not name the grantor of any of the interests, however. The documents uniformly show Continental' claim to one half of the working interest. We conclude that plaintiffs have failed to present substantial evidence to support a theory of adverse possession, waiver, or estoppel against Continental. We therefore reverse the District Court. We hold that Continental owns an undivided one half interest in the work- ing interest in the N3NWI. We further hold that Mr. Gunnip and his assigns own the remaining half of the working inter- est in the N4NWJ. We remand to the District Court for entry of judgment establishing the ownership of the working inter- est in the NiNWJ and for such further proceedings as are necessary in conformity with this opinion. We Concur: Chief ~ u s t i c e d /' , , Justices for Justice X.C. Gulbrandson. Retired Chief6~ustice Frank I. Haswell sitti-ng for ,Justice ,John C. Sheehy.	January 25, 1989
20d2bfb4-ea5a-48d0-9d49-5b8c24e838ea	CONTWAY v SHERIFF MIKE CAMP	N/A	88-390	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JON CONTWAY, Plaintiff and Appellant, SHERIFF MIKE CAMP, Sheriff of Phillips Countv; DEPUTY SHERIFF JIM MAXI, a Deputy Sheriff of Phillips County; SHERIFF BARRY MICHELOTTI , Sheriff of Cascade County; ANTONIA MARRA, a former Deputy County Attorney of Cascade Countv; CASCADE COUNTY; and PHILLIPS COUNTY, Defendants and Respondents. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Chan Ettien, Judqe presiding. COUNSEL OF RECORD: For Appellant: Thomas P. Meissner, Lewistown, Montana For Respondent : John C. McKeon, County Attorney, Malta, Montana Patrick L. Paul, County Attorney; Steven M. Hudspeth, Deputy County Attorney, Great Falls, Montana Submitted on Briefs: Dec. 16, 1 9 8 8 Decided: February 16, 1989 0 Filed: Mr. Justi-ce John C. Sheehv delivered the Opinion of the Court. Appellant, Jon Contway, appeals from an order of dis- missal under Rule 12(b)(6), M.R.Civ.P., of the District Court of the Eighth Judicial District, Count~y of Cascade, dismiss- ing, with prejudice, his amended complaint against all respondents. Jon Contway was married to Patricia Contway on January 6, 1978. On August 8, 1986, while going through dissolution proceedings, Contway signed a separation agreement with Patricia awarding her custody of their three minor children, subject to plaintiff's right of visitation. The separation agreement was integrated into the final divorce decree of October 14, 1986. On August 27, 1986, appellant took the children from the State of Montana, in violation of their separation agree- ment. On September 10, 1986, the State filed a criminal information against appellant on the ground of custodial interference, a felony. A warrant for his arrest was issued by the district iudge and bail on the warrant was set a t . $10,000. Approximately five months later, on January 15, 1987, appellant returned to Malta, Montana, and left the children at the local office of Family Services there. On that same day, defendant Sheriff Jim Maxie of Phillips County arrested the appellant pursuant to the outstanding warrant. Prior to and subsequent to arresting appellant, Sheriff Maxie consulted with Cascade County Sheriff's Department to verify that a valid warrant was still in existence there. Sheriff Maxie made these inquiries to insure that his arrest of Contway was lawful. Contway had informed the sheriff that the arrest would be improper because he had transferred custody of his children to the Montana Department of Family Services. Cascade County refused to cancel the valid arrest warrant and appellant was arrested by Phillips County offi- cials and placed in custodv on January 15, 1987. On Zanuar~7 16, 1987, Cascade County officials went to Malta, picked up the appellant, and brought him into custody in Cascade Coun- ty. The appellant remained in custody there until Januarv 22, 1987, when the criminal information against Contway was dismissed after the children had been returned to the lawful custody of their mother and appellant had written and signed a stipulation stating that the children had been "returned to the custody of Patricia Contway in accordance with 45-5-304 (1985) . " Rased on that stipulation and appellant's motion to dismiss dated January 21, 1987, the felonv charge was dismissed on January 22, 1987, and Conkway was released from custody. Contway then brought an action against the respondents alleging that his "arrest and false imprisonment were con- trary to law." In his amended complaint, appellant alleged that at the time of arrest and imprisonment, he was a candidate for legislative office for the State of Montana; and appellant alleged in his original complaint that such wrongful arrest and false imprisonment damaged his reputation and, as a consequence, damaged his political race. In addi- tion, at the time of his arrest and imprisonment, appellant was starting a consultinq business in Great Falls, Montana, and he alleged that due to the wrongful arrest and imprisonment his business opportunities were curtailed and the business never got started. That action was dismissed at the District Court level on a Rule 12 (b) ( 6 ) , M.R.ci~7.p. motion and he now appeals to this Court. The issue on appeal is whether the District Court properly dismissed the plaintiff's amended complaint. Section 45-5-304, MCA, states: Custodial Interference. (1) A person commits the offense of custodial inter- ference if, knowing that he has no leqal right to do so: (a) he takes, entices, or withholds from lawful custody any child, incompetent. person, or other person entrusted by authority of law to the custody of another person or institution; (b) prior to the entry of a court order determining custodial rights, he takes, entices or withholds any child from the other parent where the action manifests a purpose to substantially deprive that parent of parental rights; or (c) he is one of two persons who has joint custody of a child under a court order and he takes, entices, or with- holds the child from the other where the action manifests a purpose to substan- tially deprive the other parent of parental rights. ( 2 ) A person convicted of the offense of custodial interference shall be imprisoned in the state prison for any term not to exceed 10 years or be fined an amount not to exceed $50,000, or both. (3) A person who has not left the state does not commit an offense under this section if he voluntarily returns such person to lawful custody prior to ar- raignment. A person who has left the ---- state -- does not commit an offense under this section - if - he volntarily -- returns such person - to lawful custody -- prior - to the arrest. [Emphasis added.1 - - Appellant asserts that as a consequence of the language of $ $ 45-5-304(3), MCA, he should not have been arrested after he returned the children to "lawful custody" of Family Ser- vices. Respondents insist that his arrest was valid under the statute because returning the children to the local office of Family Services (then SRS) was not a return to "lawful custody" as called for by the statute. They assert that "lawful custody" is custody awarded by the decree and Contway could only have avoided arrest by returning the children to the custody of their mother, to whom custody was awarded by the court. Appellant argues that whether or not the warrant was legally and validly issued is irrelevant and that the validi- ty of the warrant "makes no difference" because of the language found in S 45-5-304, MCA: "[a] person who has left the state does not commit an offense under this section [custodial interference] if he voluntarily returns such person to lawful custody prior to arrest." Appellant argues that even if it is presumed that the warrant was validly issued, the respondents1 action in serving the warrant and arresting him constituted a basis for an action against the respondents because Contway had obeyed the statute by returning the children to the custody of Family Services. Contway argues that returning the children to Family Services is returning them to "lawful custody" before arrest as required by the statute. The respondents argue that 5 45-5-304(3), MCA, is a defense to a conviction for custodial interference if a criminal defendant raises and proves the defense as in any other affirmative defense. Respondents recognize that the statute does not state that subsection (3) is a defense to an arrest, as opposed to a conviction, but posit that "the Legislature could have stated as such," and that the more reasonable construction of subsection (3) is that it is like any other affirmative defense which imposes a burden of proof upon the defendant and not upon the state. The words of this statute prohibit the taking of a child from "lawful custody" and permit a noncustodial parent who has left the state to be free of committing custodial interference if he voluntarily returns the child to "lawful custody" prior to arrest. The words "lawful custody" are of common usage and are sufficiently plain and precise to put any reasonable person on notice concerning what conduct is prohibited. Appellant attempted to thwart the court decree by turning the children over to Family Services which was not the lawful custodian named in the decree. We hold that lawful custody in marital dissolution proceedings is that custody awarded by the court. A district court in the circumstances of this case has jurisdiction to make a child custody determination. Section 40-4-211, MCA; Wilson v. Wilson (1980), 186 Mont. 290, 607 P.2d 539. An individual cannot return children to the custody of a legal- entity of his choice. He must return them to the entity granted lawful custody by the court in dissolution proceedings. The legislature was cautious in providing a means by which a noncustodial parent may return children to the custo-- dial parent and avoid penal sanctions. This statute was enacted to maintain parental custody against all unlawful interruption, even if a child is a willing, undeceived par- ticipant in the attack on the parental interest. Section 45-5-304, MCA, Criminal Law Commission Comments. As to the state's argument that section (3) is a de- fense to a conviction rather than an arrest, we note that the statute formerly allowed the conduct to be excused if the person taken was returned before trial for the offense commenced. In 1979 the legislature amended the statute and added subsection (3) which provides that a person does not commit the offense of custodial interference if he returns the individual taken to lawful custody prior to arraignment or, in the case of a person who has left the state, prior to arrest. The district court judge properly applied the law in response to the respondents' motion to dismiss under Rule 12 (b) (6) , M.R.Civ.P. On a motion to dismiss the court takes the allegations of the plaintiff to he true and construes the allegation in a light most favorable to the plaintiff. Mogan v. City of Harlem (Mont. 1987), 739 P.2d 491, 44 St.Rep. 1212; Willson v. Taylor (Mont. 1981), 634 P.2d 1180, 38 St.Rep. 1040. The court will then grant the motion only if it appears beyond any doubt that the plaintiff can prove no set of facts which would entitle him to relief. Fraunhofer v. Price (1979), 182 Mont. 7, 594 P.2d 324; Kinion v. Design Systems, Inc. (1982), 197 Mont. 177, 641 P.2d 472. The respondents' arrest of Contwav was a valid arrest under a valid warrant as a result of Contway's attempt to frustrate the directive of the divorce decree by releasing the children to custody of a state agency rather than to the custody decreed by the court. For the foregoing reasons, the District Court's deci- sion is affirmed as to all respondents. Justice Y	February 16, 1989
74b21f8f-fe36-4ecb-bd7a-74e7082873ad	STATE v COURVILLE	N/A	88-175	Montana	Montana Supreme Court	IN THE SUPREME COIJRT OF THE STATE OF MONTANA 1 9 8 9 STATE OF MONTANA, Plaintiff and Respondent, -vs- ALEXANDER COIJRVILLE, Defendant and Appellant. APPEAL FROM: The District Court of the Twentieth Judicial District, In and for the County of Lake, The Honorable C.F. McNei3, Judge presidinq. COUNSEL OF RECORD: For Appellant: Benjamin R. Anciaux, Polson, Montana For Respondent: Hon. Marc Racicot, Attorney General, Helena, Montana Betsy Brandborg, Asst. Atty. General, Helena Larry Nistler, County Attorney; Mark Stermitz, Deputy County Attorney, Polson, Montana 5 Submitted: Jan. 12, 1 9 8 9 Decided: February I Clerk Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Alexander Courville was convicted of aggravated bur- glary and sexual intercourse without consent in the Twentieth Judicial District, Lake County. Courville appeals the con- viction of aggravated burglary. The issues on appeal are stated as follows: 1. Whether the trial court erred by not directing a verdict in favor of defendant on the aggravated burglary charge; and 2. Whether the trial court erred by not allowing defendant to introduce evidence at trial of the victim's pa.st crimes, wrongs and other acts? We affirm. T. B. was awakened in the upstairs bedroom of her home at about 4:00 a.m. on the morning of August 22, 1987, by a noise downstairs. She went downstairs in her nightgown and found Courville in her house, sitting on her couch with his shoes off. T. B. recognized Courville immediately because he had been an acquaintance of the family for many years. T. R . noticed that Courville was obviously upset and appeared to have been drinking. He pleaded with T. B. to stay and talk to him because he was upset. T. El. explained to him that she was sick, she had been at the hospital earli- er to get a shot of Demerol for her severe migraine headache, she was tired from the drug and needed to go back to bed. The trial testimony conflicted at this point as to whether or not T. B. actually told Courville to get out of the house. However, Courville stood up and began walking. T. B. assumed he was walking toward the door to leave, and she went up- stairs, returning to bed. T. R. was awakened again in a short time by Courville sittinq on her bed and shaking her awake. Her two-year-old son was in bed with her. The testimony again conflicted at this point as to where Courville was and what dialogue passed between them. T. B. gave slightly different accounts of this. She appeared confused at trial, and her memory was not strong due to the ensuing events, her drowsiness, and the effect of the drug. However, T. B. testified that she turned her back to Courville and dozed off again. She was awakened the next time by Courville choking her and yelling at her. He choked her several times and demanded that she strip so that he could have sex with her. She refused and was choked again. She testified that under fear for her life, she undressed. She persuaded him not to have intercourse with her, but while she was naked Courville fondled her entire body and put his fingers in her vagina and rectum. T. B. attempted to leave the bedroom for varying excus- es, but Courville followed her through the house and twice took her back to the bedroom to repeat this process. Final- ly, at about 7:00 a.m. T. B. was able to get out of the house with her son and another child she was babysitting, under the excuse of needing to take the other child home to her mother and needing to get on the road for a trip they had planned to Glacier Park. T. B. went straight to Vanessa Jones's house, the mother of the child she was babysitting. Vanessa testified that T. R. appeared on her doorstep about 7:00 a.m. with the kids and was shaking and totally upset. Her throat, chest and arms were covered with bruises. T. B. related the entire story to Vanessa, who also knew Courville. Vanessa persuaded T. R. to get some sleep at Vanessa's house and encouraged her to turn Courville in to the police. Five days later, Vanessa went to the Polson Police Department with this story and gave a statement. to the police. The next day, T. R . came in herself and related the story. T. B. was still quite bruised and her injuries were photographed by the investigating officer. However, T. B.'s version of the events varied slightly at trial from the story she related to the police that day. Originally, T. B. gave a statement that she told Courville several times to go home and get out of the house and the next thing she remembered was waking up to him chok- ing her. At trial, she cou3.d not remember specifically telling him to leave, but rather just understood that he was leaving when she told him she was sick and he got up and walked toward the door. Additionally, T. B. later remembered some intervening events in her bedroom between her falling asleep the first time and when Courville first began choking her. However, she testified unequivocally that she did not invite him into the house, nor the bedroom, she did not encourage him, she did not want to have sex with him and she did not consent to his acts. All accounts of the story reveal the fact that Courville threatened her: "If you don't do it, I'll kill you," and "Vanessa will find you dead here tomorrow" and "you keep your mouth shut about this or I'll come back and hurt you again." Courville was charged by information on September 11, 1987, with sexual intercourse without consent and aggravated burglary. Prior to trial, the State made motions in limine to exclude evidence of T. B.'s sexual conduct and history of her criminal record. Both motions were unopposed by defense counsel and were granted by the judge. The jury returned a verdict of guilty on both counts in February 1988, and Courville was sentenced to twenty years with none suspended for Count I, sexual intercourse without consent, and twenty years with ten suspended on Count 11, burglary, with an additional ten years for aggravated burglary, all to run consecutively. Courville does not appeal his conviction on Count I. Courville appeals the trial court ruling that T. B.'s character had not been put in issue by her own inconsistent statements, thus prohibiting his use of "other bad acts" evidence against her, and denyinq his motion for a directed verdict on the burglary charge. I. Character evidence is generally inadmissible. Rul e 404 (a), M.R.Evid. However, Rule 608, M.R.Evid., does permit character evidence under specific circumstances: when the witness's character for truthfulness has been put in issue and then only if the offered evidence goes to the witness's veracity. But specific instances of misconduct of a witness for the purpose of attacking the witness's credibility may not be proved by extrinsic evidence. Rule 608 (b) . Rule 609 specifically prohibits admission of evidence that a witness has been convicted of a crime for purposes of attacking the credibility of the witness. See for discussion, State v. Sloan (Mont. 1989), P.2d , 46 St.Rep. 214, 216. In this case, the defendant argued that the victim's inconsistencies in some of the details of her story put her character at issue. He thus wanted to prove she was untruth- ful with testimony, some from other witnesses, that she had been accused of stealing money from Vanessa at one time and that T. B. herself had a criminal record. However, counsel's efforts were misguided on this issue. This testimony is not probative of truthfulness, and T. R.'s character was not put. at issue. The judge properly ruled that the door was not open to this sort of testimony. We decline to rule that an inconsistent statement in a victim's account of the sexual assault on her automatically puts her character in issue, thus opening the door for evi- dence of any past misconduct. The ruling of the trial court to that effect was not an abuse of discretion. In State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348, we held that inconsistencies in a victim's statements regarding sexual intercourse without consent do not necessarily render her testimony inherently incredible. The jury is to remain the fact finder and the proper body to weigh the credi-bility of each witness: Only in those rare cases where the story told is so inherently improbable or is so nullified by material self-contradic- tions that no fair-minded person could believe it may we say that no firm foundation exists for the verdict based upon it. Maxwell, 647 P.2d at 351. Under these circumstances, defense counsel is not allowed to attack the victim's character in general, but rather is allowed to impeach the witness' testimony based on her prior inconsistent statements. Counsel impeached in this case and the jury was left to weigh her credibility in light of all disputed details. The jury always has an easy remedy for incredible testimony: they are free to reject it. Obviously, in this case, the jury did not reject T. B.'s testimony. Rather, the jury concluded that T. B. was worthy of belief despite her inconsistencies. Rulings on evidence are Left to the sound discretion of the trial judge and will not be overturned on appeal absent a showing that the trial judge abused his discretion. Cooper v. Roston (Mont. 1988), 756 P.2d 1125, 45 St.Rep. 978. Courville has not made that showing. We affirm the lower court's denial of "other bad acts" t-estimony. Courville also contends that the State's case-in-chief was deficient on the elements of burglary and, thus, it was an abuse of discretion for the trial court not to direct a verdict in favor of Courville on that count. We disagree. Section 45-6-204, MCA, defines burglary as follows: (1) A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied struc- ture with the purpose to commit an offense therein. * * * Burglary is aggravated if the perpetra- tor inflicts bodily injury to any person during his entry, crime or flight thereafter. "Enters or remains unlawfully" is defined in 45-6-210, MCA, which reads in pertinent part: "A person. enters or remains unlawfully . . . when he is not licensed, invited or otherwise privileged to do so." This statute is worded in the disjunctive; thus evi- dence that Courville either entered - or remained unlawful-l-l.7 with an intent to commit an offense therein warrants denial of his motion. The testimony at trial conflicted as to wheth- er or not T. B. locked her door that night. However, it is clear that Courville entered her house without permission to do so. His unlawful entry coupled with his further felony conduct satisfied the State's hurd-en of proving every element of the burglary charge. A verdict of acquittal may be directed in favor of the defendant only if - no evidence exists upon which to base a g~i!t:~ verdict. See State v. Matson (Mont.. 1 9 8 7 ) , 736 P.2d 971, 44 St.Rep. 874; State v. Whitewater (Mont. 1981), 634 P.2d 636, 38 St.Rep. 1664; and 546-16-403, MCA. The forego- ing testimony of T. B. regarding Courville's entry was suffi- cient for the case to go to the jury. Courville's motion was properly denied. Courville further argued that even if he actually entered unlawfully, he was invited to remain on the premises, thus negating any criminal conduct. Trial testimony con- flicted as to whether T. B. invited Courville to sleep down- stairs on her couch that night because he was obviously upset and needed a place to stay. T. B. testified that she did not mind if he stayed on her couch but did not specifically remember inviting him. Even had the jury found that T. B. may have invited Courville to sleep downstairs on her couch, that invitation certainly did not include going up to her bedroom in order to choke and sexually assault her. Such conduct exceeds any reasonable privilege and the trial court properly let the burglary charge go to the jury for determi- nation. See also State v. Manthie (1982), 197 Mont. 56, 641 P.2d 491; State v. Watkins (1974), 163 Mont. 491, 518 P.2d 259 ("when a person exceeds the limits of his privilege . . . he thereby transforms his original invited presence into a trespass that can form the basis of a burglary charge. ) Based on the foregoing evidence, Courville fails to convince this Court that the trial court committed error. Judgment affirmed. We concur:	February 27, 1989
44e83bbf-94ca-4f46-8d29-c32beb732bff	VARELA v EXXON U S A BILLINGS	N/A	88-421	Montana	Montana Supreme Court	No. 88-421 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 JOSEPH VARELA, Claimant and Respondent, -vs- EXXON, U.S.A., BILLINGS REFINERY, Employer, and PETROLEUM CASUALTY COMPANY, - , ' - - 2 j l Defendant and Appellant. < : S. -- APPEAL FROM: The Workers' Compensation Court, The ~onorabf6 Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Crowley Law Firm; Terry Spear, Billings, Montana For Respondent: Whalen & Whalen; Michael J. Whalen, Billings, Montana Filed : Submitted on Briefs: Jan. 12, 1989 ecided: Clerk Mr. Justice Fred 2. Weber delivered the Opinion of the Court. Both Joseph Varela (claimant) and Petroleum Casualty Company (insurer 1 appeal a decision of the Workers ' Compensa.-- tion Court allowing in part and denyinq in part a compensa- tion claim filed by Mr. Varela against his employer, Exxon, U.S.A. The claimant appeals t-hat portion of the decision denying his claim based on the running of the statute of limitations, along with several other issues. The insurer appeals that portion of the decision allowing compensat.i_or\. for a second injury following the c1.aimant's return to work. We affirm in part and reverse in part, hol-ding that the claimant has suffered a compensah1.e injury and remandj-ncy for a determination of henefits. The issues are: 1. Did the court err in holding that the c1ai.m for compensation ari-sing from the below-the-knee amputation is barred by the statute of limitations? 2. Did the court err in holding that the claimant suffered one or more compensable injuries following the below-the-knee amputation which resulted in his inability to return to his previous employment? 3. Did the court err in refusing tc consider the claim- ant's deposition as part of the record? 4. Did the court err in holding that there was no evidence by which it could establish the claimant's disabili- ty and compensation rate for the second injury? 5. Did the court err in holding that the claimant was not entitled to a 20% penalty increase in award for unreason- able withholding of benefits? In August of 1979, Mr. Varela was involved. in a vehicle accident between the motorcycle he was operating and a pi.ckup truck. This accident was not in any way related to his employment. As a result, Mr. Varela suffered severe injuries to his right foot which was amputated in November of 1979. The surgical procedure, known as a Syme's amputation, in- volved the removal of the foot at the ankle while preservinq the pad on the heel to serve as the base of a stump. At the time of the accident, Mr. Varela was an employee of Exxon, U.S.A., at the Billings refinery. Following the foot amputa- tion he was fitted with a prosthesis, or artificial limb, and returned to work for Exxon in April of 1980. Mr. Varela's job required him to climb steel stairs on various structures including towers, tanks, pipelines, and boilers to install insulation. He was also required to lift 50 to 100 pound sacks of insulation material, and to walk and stand for prolonged periods on concrete and uneven surfaces. These duties continued until 1983 when he was assigned to operating a vacuum truck which reauired him to drag and pull heavy hoses to and from the truck. Following his return to work in 1980 and continuing until 1985, Mr. Varela experi- enced increasing discomfort and pzin with his prosthesis. He had difficulty in climbing, walking and standing For pro- longed per;-ods, and the sores which developed on his stump would not heal. In November, 1985, the claimant went to see Dr. Dorr, an orthopedic surgeon. Dr. Dorr indicated that Mr. Varela should have a different type of prosthesis or should undergo a below-the-knee amputation (B/K amputation). Mr. T ' a r e l a sought a second opinion from Dr. Kobold, also an orthopedic surgeon, who recommended the R / K amputation to alleviate the problems Mr. Varela was having with his stump. Dr. Kobold diagnosed sympathetic dystrophy and medial and 1-ateral bone spurs. He described sympathetic dystrophy as a reaction of the sympathetic nervous system to either the accident or the Symels amputation or hoth, which causes pain, burning, or cl-ammi-ness in the area. To relieve these discomfort.^, Dr. Kobold performed the R/K amputation on December 3, 1985. Mr. Varela later received a R/K prosthesis and returned to work for Exxon in Mav of 1386. He continued in hi.s employment. until he was released in Novemher of 1986. During the period of May to November of 1986, the claim- ant had probl-ems with balance and stability, and continued to experience pain and discomfort with his prosthesis while he was working. He testified. that he fell several times while on the job in November 1986. I H e tsent to see Dr. Kobold in December because he had fallen twice and broke his prosthe- sis. The doctor wrote a letter to "whom it may concern" at Exxon, directing that the claimant's work activities should. he restricted because of "pressure points and pain in his stump (due to) the amount of the following activities that he has been doing." These restricted activities included pro- longed standing or walking, squatting, and heavy liftinq or carrying. Upon receiving the 1-etter , Exxon dischargecl Yr. Varela from employment because he was no longer able to perform those activities necessary to his employment. Exxon had no other positions available at that time which might have been more suitable to Mr. Varel-a's abilities. Following the medical termination, the record shows that the claimant was entitled to and received six months of disability payments equivalent to his wages pursuant to his negotiated contract of employment. After six months, those payments were reduced by half and were to continue indefinitely. In April of 1987, Mr. Varela filed his claim for compensation. I Did the court err in holding that the claim. for compen- sation j . s barred by the statute of limitations? The relevant statute of limitations for a compensation claim is found at S 39-71-601, MCA: (1) In case of personal injury or death, all claims shall be forever barred unless presented in writing to the employer, the insurer, or the divi- sion, as the case may be, within 12 months from the date of the happening of the accident, either by the claimant or someone legally authorized to act for him in his behalf. ( 2 ) The division may, upon a reasonable showing by the claimant of lack of knowledge of the disabili- ty, waive the time requirement up to an additional 24 months. The Workers' Compensation Court determined that the B/K amputation was necessitated by the work-related aggravation of the claimant's Syme's stump, and was therefore compensa- ble. The court found, however, that the B/K amputation took place on December 3, 1985, and that the claim was not filed until April 2, 1987. Based on this 16 month delay, the court concluded that the claimant had not met the statutory limita- tion period and the claim was barred. The court also deter- mined that it did not have jurisdiction under § 39-71--601(2), MCA, to extend the filing date by 24 months. The claimant does not find error with the latter determination so it will not be addressed on appeal. Mr. Varela argues that even though he did not comp1.y with the 12 month requirement o f t h e statute, the limitation period should be tolled to a ! - ] . o w his claim. This Court has tolled the statute of limitations for a compensation claim where a claimant can show that: (1) disability benefits have been received from the employer which are "sufficient to convince the recipient that he is receiving such a large percentage of workers' compensation benefits available to him that to seek further benefits woul6. be a wasted effort;" and ( 2 ) the employer has knowledge that the claimant's inability to work was due to an industrial iniury. Frost v. Anaconda (1982), 198 Mont. 216, 291-22, 645 P.2d 419, 422-33. The Workers' Compensation Court found that the claimant presented no evidence to fulcil! either of the requirements from Frost so as to toll the statute of limitations. We will. not overturn that finding if there is substantial evidence in the record upon which to support it. Giacoletto v. Silver Row Pizza Parlor (Mont. 1988), 751 P.2d 1059, 45 St.Rep. 536. The record shows that Mr. Varela did receive full. disability benefits from his employer after his med.ica1 termination in December of 1986, but that proof is not relevant to the present inquiry. Mr. Varela failed to submit substantial evidence that he received disability benefits which were sufficient to convince him that he was receiving an equiva- lent to workers' compensation during the period of December 1985 to December 1986. We there+ore conclude that the lower court correctly determined that claimant ha6 not met the first element of the test From Frost. The Workers' Compensation Court also concluded that the employer had no knowledge that the disabilitv payments were related to an industrial accident, and as a resu1.t that Mr. Varela had failed to meet part two of the Frost test. While -- the evidence indicates that Exxon knew Mr. Varel-a's physical condition was causing him problems at work, we agree with the lower court that there is a difference between that kind of knowledge and the kind of knowledge contemplated by this Court in Frost. Under Frost, the employer must have had knowledge that Mr. Varela's physical pain and discomfort was compensably related to his job. We have reviewed the record and conclude that there is no indication that Exxon had knowledge that the claimant's original injury was aggravated by work-related activities so as to become compensable. We hold that the claimant has not presented evidence sufficient to fulfill either of the requirements from Frost. The lower court's conclusion that the claim is barred by the statute of limitations is affirmed. Did the court err in holding that the claimant suffered one or more compensable injuries following the below-the-knee amputation which resulted in his inability to return to his previous employment? The lower court determined that Mr. Varela sustained a "compensable event" following his return to work after the B/K amputation which was not barred by the statute of limita- tions. To be compensable, the claimant is required to prove that he suffered an injury while in the scope of employment, "injury" being defined as: (1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain result- ing in either external or internal physical harm and such physical condition as a result therefrom . Section 33-71-119, MCA (1985). The court did not identify one specific incident of accident or injury, but considered a number of events follow- ing Mr. Varela's return to work which culminated in a "tangi- ble happening and resultant physical harm." The events which the court referred to included the claimant's on-the-job activities which irritated his stump, the instability he experienced which caused him to fall. on several occasions, and two falls in November of 1986 which broke his prosthesis and caused severe pain. The court conc1.uded that it was Yr. Varela's second injury which led to his medS.cal termination by the employer. The insurer argues that it was error for the Workers' Compensation Court to tie Rr. Varela's inability to continue his employment to his "injuries" in 1986, referring to the two falls in November. The insurer contends that it was the R/K amputation which caused his inability to work rather than anything which was connected to or occurred at work. Presumably, the claimant could have performed his job without difficulty if it weren't for the prosthesi.~. Simi- larly, if it weren't for the strenuous activities required by that job, Mr. Vare3.a may not have experienced pain or a broken prosthesis. It is not our duty to weigh the evidence in this regard. The Workers' Compensation Court traced the claimant's inability to work to the events which followed the R/K amputation and his ret.urn to work. That determination will be upheld if supported by substantial credible evidence. Both the claimant and Dr. Kobold testified as to the pain and discomfort caused by the work-related activities. The claimant testified that the pain he experienced with his R/K prosthesis also affected his back, and his other knee and ankle. I n addition, the claimant felt unstable when trying to perform his duties such as climbing on and off the vacuum truck. He fell on two occasions and broke his prosthesis because of the i.nstability. Dr. Kobold wrote a prescription for a new prosthesis and restricted the claimant's activities at work. Subsequent!_y, the claimant was discharged from employment. We hold that th.?'.s evidence is sufficient to support the lower court's conclusions that Mr. Vare1.a suf- fered a compensable injury fo!.lowi.ng his return to work in May of 1986. IIT Djd t.he court err in refusing to consider the clai.mantls deposition as part of the record? Mr. Varela argues that the court shoul-d have considered his deposition as part of the evidentiary record. Upon defendant's obiection, the court refused to consider the deposition as part of the record "due to the claimant's failure to abide by the Montana F-ules of Evidence." While the court acknowledged that the deposition had been filed, it noted that no deposition testimony was offered by the claim- ant at trial, nor was it incorporated into the record except in the claimant's reply brief, and the claimant did not request its inclusion until after the trial. The relevant portion of the deposition contains testimo- ny by Mr. Varela about statements made to him by his supervi- sor while he was hospitalized after the B/K amputation. Those statements are alleged assurances by the employer that Mr. Varela would have nothing to worry about as far as his job or any litigation was concerned, so that he was lulled into a sense of false security and therefore did not file a timely claim for compensation. In anticipation of this testinony at trial, the insurer was prepared to call the supervisor to rebut Mr. Varela's testimony regarding the out-of-court statements. However, no mention of the state- ments was made by the claimant at trial. Instead, the claim- ant waited until after trial to bring forth evidence of the alleged assurances. The statements contained in Mr. Varela's deposition fall into the definition of hearsay: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 801(c), M.R.Evid. Generally, hearsay is inadmissible unless it falls into one of the exceptions in Rule 803 or 804, M.R.Evid. Mr. Varela's deposition testimony could have been admissible as former testimony und.er Rule 804 (b) (1) , but he wou1.d have had to show his unavai.l.ability as a witness. Since Mr. Varela testified at trial, that portion of the deposition testimony would have been inadmissible. Had Mr. Varela testi.fied at trial as to the alleged assurances, the defendant would have had the opportunity t.o rebut that testimony. To allow the testimony by deposition would. effectively deny the insurer any opportunity to chal-- lenge those statements made by Mr. Varela in his deposition. We note that broad discretion is given to the Lower court in admitting or refusing to admit evidence. Rritton v. Farmers Insurance Group (Mont. 1 9 8 6 ) , ' 2 1 P.2d 303, 315, 43 St.Rep. 641, 654. Given this discretion, we conclude that it was not reversible error for the Workersr Compensation Court to exclude the claimant's deposition from the evidentiary record. IV Did the court err in holding that there was no evidence by which it could establish the claimant's disahility and compensation rate for the second injury? Having concluded that the claimant suffered a job-related in jury after returning to work following the amputation, it was for the Workers' Compensation Court to determine what disability and benefits Mr. Varela was enti- tled to. However, the court concluded. that it was unable to do so because there was little evidence in the record to show what disability entitlement the cl-aimant should receive. Based on the medical evidence, the court found that Mr. Varela could no longer work at the refinery, but noted that finding alone would not warrant payment of compensation. The court concl.uded that it would be necessary for the claimant to establish what labor market, if any, would be available given his injury, age, occupational skills, education and experience. The record establish.ed that Mr. Varela 's formal educa- tion was limited to high school. During his youth he worked as a farm laborer, doing beet labor and ditch digging. Mr. Varela testified that he is no longer able to perform any of those duties by reason of his amputation. Following gradua- tion from high school, he worked for Exxon for one year before entering the military. r . Varela testified that he was trained as a small arms combat infantryman and learned nothing in his training which he could transfer to civilian work. After three years of military service, he returned to work for Exxon for eleven years until his medical termination in 1986. Mr. Varela testified that he has had no formal training or education to upgrade his employment skills, nor has he engaged in any other type of employment. The Workers' Compensation Court was impressed with the "tenacity, intelligence, and the obvious strong work ethic of the claimant." The court marvelled at how, for some six years, claimant could even perform many of his job duties with his handicap. The record established that Mr. Varela's employment experience was limited to Exxon and farm labor, and the uncontradicted evidence established that he is unable to perform those types of work. We conclude that by the estab- lishing of those facts, the claimant met his initial burden of showing that because of his work related injury, he no longer is able to perform the duties associated with those jobs which constitute his normal labor market. Coles v. Seven Eleven Stores and American Motorists Insurance Cc?. (Mont. 1985), 704 P.2d 1048, 1051, 42 St.Rep. 1238, 1241. When claimant established that he is unable to perform those jobs within his normal labor market, the burden shifted to the employer to show that Mr. Va.re1.a has reasonable pros- pects of employment so that he is not. entitled to total. disability benefits. Coles, 704 P.2d at 1051. We are reluc- tant to reverse the Workers' Compensation Court on a factual. determination. However, the facts in this record as summa- rized above establish without significant contradiction that. Mr. Varela has no reasonable prospects of employment. We conclude that the burden then shifted to the employer to demonstrate otherwise, and further conclude that an addition- al hearing is required for the submission of proof on this issue. This case is remanded for such further proceedings as are requirec? by the Workers Compensation Court in order to make a determination of entitlement which is consistent with this opinion. v Did the court err in holding that the claimant was not entitled to a 20% penalty increase in award for unreasonable withholding of benefits? The claimant argues that the Workers' Compensation Court should have awarded the 20% penalty allowed. by S39-71-2907, PCA ( 1 9 8 5 ) , because he contends that the employer was aware that Mr. Varela's iniury was work-related as early as 1985. The record discloses that the employer was aware of Mr. Varela's discomfort and his difficul-ty in performing his work-related duties. That awareness, however, is not analo- gous to a knowledge that the injury was compensably related to work. We hold. that the clai-mant i . s not entitled to the 20% increased penalty. We affirm the decision of the Workers' Compensation Court with respect to the running of the statute of limita- tions on the first claim, the compensability of the second claim, the exc1.usj.on of the claimant's deposition from the record, and the disallowance of the 20% penalty. With re- spect to the i.ssue of disabil-ity henefits on Mr. Varela's compensable second injury, we remand for a determination of benefits which is consistent with this opinion. , / L - ' We Concur: Chief Justice ( / / ' Justices Mr. , ' u s t i c e W.E. Punt d i d not participate in this decision.	January 12, 1989
95a06ede-25cf-4570-a9b0-5f70ad20f416	STATE v KORANG	N/A	88-420	Montana	Montana Supreme Court	NO. 88-420 I N T H E 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- K A T H Y (DAVIS ) KORANG , Defendant 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 o f t h e F i r s t ~ u d i c i a l District, I n and f o r t h e County o f Lewis & C l a r k , The Honorable Henry Loble, Judge p r e s i d i n g . COUNSEL OF RECORD: For A p p e l l a n t : Edmund F. Sheehy, Jr., Helena, 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 P a t r i c i a J. S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena ~ i k e McGrath, County A t t o r n e y , Helena, Montana Leo G a l l a g h e r , Deputy County A t t o r n e y , Helena Submitted on ~ r i e f s : March 31, 1989 Decided: May 1 8 , 1989 rl -. 1 . ' - - - - L' c C l e r k Mr. Justice R. C. McDonough delivered the Qpinion of the Court. Kathy Davis Korang appeals from the judgment of the District Court of the First Judicial District, Lewis and Clark County, entered upon a jury verdict finding her guilty of theft and tampering with public records, both felonies. We affirm. Korang presents three issues for review: 1. Whether the evidence is sufficient to sustain her conviction. 2. Whether the District Court interfered with her right to a fair trial by limiting her counsel's cross-examination of the State's witnesses in order to conclude the trial before a certain date. 3. Whether the District Court erred in its determination of the amount of restitution that Korang was required to pay as a condition of her suspended sentence. Korang worked in the I;ewis and Clark County Clerk and Recorder's Office from 1976 until she was suspended in June of 1987. Beginning in 1980, her duties centered around the operation of the "records counter." She recorded documents in the official County records, as well as searching for and making copies of previously recorded documents requested by members of the public. She collected fees for these services set by state law. The fees were rung up on a cash register, with the various services assigned to different "code keys." Fees for filing and recording documents were each assigned a particular code key, an?. were also entered separately in a "reception book." Miscellaneous small- transactions such as makinq photocopies were assigned to key three, hut were not entered in the reception book. Korang also had bookkeeping responsibility for this operation and deposited collected fees with the County Treasurer's Office. During busy periods, she was assisted at the counter by other members of the Clerk and Recorder's staff. The deputy clerk did the books for Korang when she was on vacation or ill. In June of 1987, staff members Dori Kuhl and Marylin Bracken met with Clerk and Recorder Sue Bartlett. They expressed concern about problems with the books being kept by Korang. Their concern stemmed from an incident several weeks before. Both women had issued a large number of death certificates one day and had rung up the fees for them on the cash register. They were curious as to how much money their effort had made for the County, and looked at the book entry for such fees at the end of the day. Instead of an entry approximating the $80 that the women had estimated, the book showed that they had taken in only $8. They began keeping track of amounts they collected when assisting at the records counter, and checking them against the books. They concluded that money was missing, and came to Bartlett. Bartlett began her own investigation. She counted the cash and photocopied the checks in the till at the end of each day; monitored the register tape, books and deposits; and observed Korang as she went about her work. After several days, Bartlett also began to examine adding machine tapes taken from Korang's waste basket at the end of each day, and kept track of checks and money orders received by mail. with requests for copies of birth and death certificates, which Korang kept in her desk. The pattern Bartlett discovered was roughly as follows: (1) miscellaneous transactions entered on cash register key three were voided later in the day; (2) cash in the amount of the voided transactions was taken from the I ; ( 3 ) either f i c t i t i o u s t r a n s a c t i o n s w e r e then rung up on another code key and checks from Korang's desk s u b s t i t u t e d t o make up t h e d i f f e r e n c e and balance t h e books, o r recording and f i l i n g t r a n s a c t i o n s e n t e r e d i n t h e r e c e p t i o n book were n o t rung up on t h e c a s h r e g i s t e r . I t a l s o appeared t o B a r t l e t t t h a t when t h e amount o f cash taken from t h e till d i d n o t e x a c t l y match t h e amount o f t h e checks used t o r e p l a c e it, Korang would make an e n t r y on t h e cash r e g i s t e r t o make t h e t o t a l from t h e r e g i s t e r t a p e f o r t h a t p a r t i c u l a r day match t h e corresponding d a i l y t o t a l i n t h e book. When B a r t l e t t became convinced t h a t Korang was t a k i n g money, she suspended h e r without pa!7. Mary C r a i g , a c e r t i f i e d p u b l i c accountant, was t h e n h i r e d t o perform an a u d i t o f t h e books. Based on R a r t l e t t ' s o b s e r v a t i o n s and t h e r e s u l t s o f t h e a u d i t , Korang was charged by inFormation with two f e l o n i e s : t h e f t (common scheme) and tampering w i t h p u b l i c r e c o r d s o r in+ormation. She was t r i e d b e f o r e a jury and convj-cted o f both charges. The D i s t r i c t Court sentenced Korang t o two consecutive 10-year t e r m s i n t h e Women's C o r r e c t i o n a l F a c i l i t y a t Warm Springs, hut. suspended a l l b u t 180 days o f t h e terms on t h e c o n d i t i o n t h a t Korang make r e s t i t u t i o n i n t h e amount of $37,891.25. This appeal followed. I. Korang f i r s t argues t h a t t h e evidence presented by t h e S t a t e a t t r i a l was i n s u f f i c i e n t t o s u s t a i n h e r c o n v i c t i o n s . The t e s t a p p l i e d by t h i s Court t o determine whether evidence is s u f f i c i e n t i s whether, a f t e r reviewing t h e evidence i n t h e l i g h t most favorable t o t h e S t a t e , any r a t i o n a l trier o f f a c t could have found t h e e s s e n t i a l elements o f t h e crime beyond a reasonable doubt. If t h e evidence c o n f l i c t s , it i s f o r t h e t r i e r o f f a c t t o determine which evidence i s d i s p o s i t i v ~ . S t a t e v. Tracy (Mont. J 9 8 8 ) , 7 6 1 P.?d 398, 45 St.Rep. 1705. Korang was charged with theFt under 45-6-301, MCA, which states in part: (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and : (a) has the purpose of depriving the owner of the property; ... (6) ... A person convicted of the offense of theft of property exceeding $300 in value ... shall be fined not to exceed $50,000 or be imprisoned in the state prison for any term not to exceed 10 years, or both. At trial, the State presented testimony by seven witnesses, including Bartlett, Korang's co-workers, and CPA Mary Craig. These witnesses described Korang's behavior at work and how that behavior fit the pattern of missing money discovered by Bartlett. The testimony included direct observation of Korang voiding entries on the cash register and making other, unusual entries; direct observation of Korang making unusual calculations when balancing the books; and direct observation of the results of Korang's work, which produced the altered cash register entries and deposits. Mary Craig testified that her audit confirmed the pattern observed by Bartlett, and estimated that the money missing as a result of the alterations to the bookkeeping system amounted to approximately $6,000 per year. Her testimony was accompanied by several exhibits, some of which showed actual work done by Korang and some of which summarized Korang's work. Craig also testified that her audit showed irregularities in the bookkeeping system while Korang was at work, but not when she was ill or on vacation. Our review of the record shows that a rational trier of fact could conclude from the State's evidence that Kathy Korang purposely altered entries in the bookkeeping system used by the Clerk and Recorder's Office in order to gain control of moneys belonging to Lewis and Clark County. Korang's counsel introduced evidence calling the State's theory into doubt and attempting to explain the alterations, but as we said in Tracy, it was for the jury to decide which evidence was convincing. We therefore hold that there was sufficient evidence to sustain Korang's conviction for theft. The offense of tampering with public records or information is d-efined in S 45-7-208, MCA: (1) A person commits the offense of tampering with public records or information if he: (a) knowingly makes a false entry in or false al-teration of any record, document, legislative bill or enactment, or thing belonging to or received, issued, or kept by the government for information or record. . . . As described above, the State introduced testimony including firsthand observations of Korang altering the cash register tapes and deposit slips in order to substitute checks from her drawer for cash removed from the till. This evidence could convince a rational trier of fact that Korang knowingly made false entries or al-terations in financial records kept by the Clerk and Recorder's Office. We therefore hold that there was sufficient evidence to support Korang's con17iction for tamperinq with public records or information. Counsel for Korang next argues that the District Court interfered with Korang's right to a fair trial by inhibitins the cross-examination of State's witness Mary Craig. At trial, counsel for Korang requested the court's permission to cease his cross-examination of Ms. Craig, and reserve the right- to recall her for further cross-examination after he reviewed the evidence upon which he was basing his questions. The court refused this request, citing the time being taken by the trial and counsel's ample opportunity to exami.ne all of the evidence before Ms. Craig took the stand. The parties agree that the appli.cable rule of evidence, Rule 611, M.R.Evid., authorized the court to exercise reasonable control over the proceedings in order to avoid "needless consumption of time." Korang cites our decision in State v. Stafford (1984), 208 Mont. 324, 678 P.2d 644, in which we stated that a trial judge must be careful to insure that he remains impartial, and avoids becoming an advocate for one side or the other through his behavior. We also said in that case that the judge must be given sufficient latitude to conduct the trial in an orderly and expeditious fashion. Stafford, 678 P.2d at 648. The transcript reveals that the court asked counsel for the State if copies of the exhibits had been provided to Korang's counsel prior to trial, and was told that they had. It appears from the record that Korang's counsel had ample opportunity to examine the exhibits prior to trial, and the court was within its authority and discretion in denying counsel ' s request to suspend cross examination in the interests of avoiding needless consumption of time. Korang's final argument takes issue with the restitution ordered by the District Court in consideration for suspending most of Korang's sentences. According to Korang, the restitution order was improper for two reasons; the amount of restitution went beyond the scope of the offenses charged, and any claim for amounts taken more than two years prior to the filing of the information was barred by the applicable statute of ,-imitations. We disagree. Korang claims that the restitution order went beyond the scope of the offenses charged by exceeding the authority granted bv Sfj, 46-18-241 through 46-18-249, PCA. Section 46-18-241, MCA, authorizes a court to require an offender to make restitution to the victim of the offense. Under S 46-18-242, MCA, the amount of restitution is based on the pecuniary loss suffered by the victj-m and the offender's ability to pay. Section 46-18-243, MCA, defines "pecuniary loss" as foll-ows: (a) all special damages, but not general. damages, substantiated by evidence in the record, that a person could recover against the offender in a civil. action arising out OF the facts or events constituting the offender's criminal activities, i-ncluding without limitation the money equivalent of loss resulting from property taken, destroyed, broken, or otherwise harmed and out-of-pocket losses, such as medical. expenses; and (b) reasonable out-of-pocket expenses incurred by the victi-m in filing charges or i . n cooperating in the investigation and prosecution of t . h e offense. At the sentencing hearing, the District Court received evidence concerning the County's losses resulting from Korang's activities, Korang's ability to pay restitution and the County's out-of-pocket expenses incurred in prosecuting Korang. On appeal, Korang assigns error to the amount of loss asserted by the County. Korang points out that the information charging her with theft and tampering with public records or information alleged that she had committed both offenses between July of 1985 and June of 1987. The restitution ordered by the District Court was based in part on the final. report of Mary Craig's audit. Craig's report concluded that the pattern of Korang's activities began in 1983 and continued until her suspension in 198?, resulting in losses to the County amounting to approximate1.y $30,250.00. Korang asserts that this amount was not "substantiated by evidence in the record" as required by the statute because she was not bei.ng tried for her activities prior to July of 1985. In essence, Korang argues that she has been sentenced for two years of "crimi.na1 activities" for which she was not convicted. The sentencing hearing is part of the record reviewed by this Court when considering an appeal in a criminal case. In fact, by posing this issue, Korang's counsel requests that our review of the record include the sentencing hearing in this case. At the sentencing hearing, the State submitted evidence of the County's loss resulting from Korang's common scheme theft and attendant records tampering. The evidence showed that Korang' s common scheme began in 1983, and gave a figure for the total loss suffered by the County "arising out of the facts or events" consti.tuting Korang ' s common scheme--her "criminal activities." The court's restitution order was based on pecuniary loss substantiated in the record. Korangls assertion that the statute of limitations bars any claim for amounts taken more than two years prior to the filing of the information is based on § 46-18-244, MCA. That section allows an offender to raise any defense against restitution that he could utilize in a civil action for the losses sought as restitution. According to Korang, one defense available to her was § 27-2-211, MCA, which imposes a two-year period of limitations for an action for penalty, forfeiture, or other statutory liability. We need not address this contention, as Korang did not raise specifically the statute of limitations before the District Court. Section 46-20-701, MCA. We affirm the decision of the District Court. We Concur: A ? - , n Chief J u s t i I-, /	May 18, 1989
bd0e4e8f-bae6-485a-8810-1f1e270baa22	HELENA ELEMENTARY SCHOOL DISTRICT N	N/A	88-381	Montana	Montana Supreme Court	No. 88-3818 IN THE SUPREME COURT OF THE STATE OF MONTANA 1 9 8 9 HELENA ELEMENTARY SCHOOL DISTRICT NO. 1 AND HIGH SCHOOL DISTRICT NO 1 OF LEWIS & CLARK COUNTY; BILLINGS ELEMENTARY SCHOOL DISTRICT NO 2 AND HIGH SCHOOL DISTRICT NO 2 OF YELLOWSTONE COUNTY; et al., Plaintiffs and Respondents, and MONTANA EDUCATION ASSOCIATION et al., IntervenorsIPlaintiffs and Respondents, -vs- THE STATE OF MONTANA; and THE MONTANA BOARD OF PUBLIC EDUCATION; and THE MONTANA SUPERINTENDENT OF PUBLIC INSTRUCTION, Defendants and Appellants, and C. J. HOLJE,BERNT WARD and ROBERT FREDERICH on behalf of the residents and taxpayers of Sheridan County, Montana, and all others similarly situated, Intervenors/Defendants and Appellants HAYS-LODGE POLE ELEMENTARY SCHOOL DISTRICT NO 50 AND HIGH SCHOOL DISTRICT NO 50, AND BLAINE COUNTY; et al. and the ASSOCIATTON OF INDIAN IMPACT SCHOOLS OF MONTANA, IntervenorsIDefendants and Appellants APPEAL FROM: The District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Henry Loble, Judge presiding. COIJNSEL OF RECORD: For Appellant: Terry G. Spear, Crowley Law Firm, Billings, Montana Hays-Lodge Pole School Dist #50, et al. Beda Lovitt, Helena, Montana, Montana Superintendent of Public Instruction Benjamin Hilley, Hilley & Loring, Bigfork, Montana for Montana Education Association Hon. Marc Racicot, Attorney General, Helena, Montana Clay R Smith, Assistant Attorney General, Helena, for State of Montana W. William Leaphart, Helena, Montana Loren O'Toole, Plentywood, Montana Donald A. Garrity, Helena, Montana For Respondent: James H. Goetz, Goetz, Madden & Dunn, Rozeman, Montana For Amicus Curiae: Charles E. Erdmann, Helena, Montana Bruce W.Moerer, Helena, Montana Dennis Lopach, Helena, Montana Submitted: January 13, 1989 Decided: February 1, 1989 Mr. Justice Fred J. Weber delivered the Opinion of the Court. In this action for declaratory judgment, plaintiffs challenge the constitutionality of the 1985-86 method of funding public elementary and secondary schools in the State of Montana. The District Court for the First Judicial Dis- trict, Lewis and Clark County, ruled in its primary holding that the system of funding violated the 1972 Montana Consti- tution. We affirm the holding of unconstitutionality, al- though on a narrower ground than that used by the District Court. The issues upon which we decide this case and our con- clusions are: 1. Does Montana's system of funding the public school s violate the education article, Art. X I of the Montana Consti- tution? We conclude that the system of funding does violate Art. X. We do not find it necessary to consider the equal protection analysis under Art. 11, Sec. 4, of the Montana Constitution. 2. Should this Court clarify the District Court's findings regarding the accreditation standards promulgated bv the Montana Roard of Public Education? We conclude that some clarification is required. 3. Did the District Court err in its findings and conclusions relating to consideration in the equalization process of federal "874" funding? We affirm the holding o f the District Court that Montana presently may not factor "874" revenue into the equalization formula because our system does not meet the federal definition of an equalized program. In its review of Montana's system of funding for public schools, the Legislature may desire to review the nature and extent of "874" funding, even thouqh it may not in any manner factor that into an equalization formula without meeting federal requirements. 4. Did the District Court err in denying plaintiffs' attorney fees? We affirm the denial of attorney fees. In the 1985-86 school year, there were 545 school dis- tricts in Montana with a total student enrollment of 153,869. These included 382 elementary and 163 secondary districts. Nearly 45% of Montana schools have enrollments of less than 100 students. The six-week-long trial included extensive evidence and testimony about the complex combination of federal, state, and local sources through which Montana's public elementary and secondary schools are funded. In addition to the General Fund, each school district uses up to nine other types of budgeted funds. These include transportation funds, teacher retirement funds, debt service funds, and building reserw funds. Some of these depend upon voted levies and all are primarily funded on a district or county level. School districts also have nonbudgeted funds including food service, traffic education, rental funds, sick leave reserves, block grants, building funds, endowment funds, and interlocal agreement funds. Expenditures from these nonbudqeted funds may only be made from cash on hand. The General Fund, which provides 70% of school fundinq in Montana, includes several components. In 1949, the Mon- tana Legislature enacted the Montana School Foundation Pro- gram. Under that program, every two years the legislature sets "Maximum General Fund Rudqet Without a Vote" (MGFRFn7) schedules for elementary and secondary school districts in the state. Eighty per cent of the MGFRW7 is funded by county and state equalization revenues. These equalization revenues are derived from levies of 45 mills on all taxable propertv in each county and state aid from such sources as earmarked revenues, surplus county Foundation Program revenue, and direct legislative appropriations. The remaining 20% of the funding of MGFBFlV is through permissive mill levies of up to 6 mills for elementary dis- tricts and 4 mills for high school districts. These levies are made without a vote. If the school district is unable to obtain the MGFRFW level through permissive levies and other specified nonlevy revenue, state permissive equalization revenues are used to make up the difference. The evidence shows that, in 1985-86, most school dis- tricts adopted budgets in excess of the MGFBWV. They uti- lized a third stage of fund-Fng under which monies were obtained primarily from propertv tax levies voted by each school district. Other revenues which were used in thj-s third level of funding included vehicle taxes, interest income, tuition income, and federal "874" funds. By 1985-86, 35% of all General Fund budgets were obtained from this level of funding. In contrast, in 1950, the Foundation Program furnished 81.2% of all general fund revenues in Montana, 1-eaving less than 20% of revenues to he obtained by local levies and other sources. Plaintiffs presented voluminous evidence to support their theory that the system of funding public education in Montana is unconstitutional. The evidence established great. differences in the wealth of the various school districts and, more significantly, established disparities of spending per pupil as high as 8 to 1 in comparisons between similarly-sized school districts. We affirm the following unchallenged findings of the District Court: 214. Several Plaintiff witnesses had experi- ence either as teachers or administrators in other Montana districts, including some relatively wealthier districts. Mr. Walt Piipo, for example, currently Superintendent at Drummond, was previous- ly Superintendent for Geraldine schools. The two school districts are very close in size, at both the elementary and high school levels. Geraldine's taxable valuation, however, is more than twice that of Drummond's. The tax efforts for the elementary schools are comparable, while Geraldine levies more General Fund mills than does Drummond at the high school level. Consequently, Geraldine spends approximately $1,000 more per ANR than Drummond at the elementary level, and over $2,000 more per ANR at the high school level. Approximately 40% of Geraldine's General Fund revenues derive from the voted levy, while at Drummond, the voted levy supplies approximately 15% of General Fund revenue. This illustrates the fact that wealthier districts are able to rely to a greater extent on the voted levy to generate revenues for the General Fund. 215. Mr. Piipo testified unequivocally that Geraldine schools have advantages, and offer opportunites, which Drummond schools cannot afford. Geraldine has much greater budget flexibility to address educational needs and goals than does Drummond. Mr. Piipo testified that there is no question that the educational opportunities afford- ed students in Drummond could be improved if the district had the same amount of money as Geraldine. 216. The fact that spending disparities result in unequal educational opportunities was established more systematically by Plaintiffs' experts Dr. Ron Mattson, Mary Pace, and Dr. John Picton. Each of these individuals has many years' experience in Montana public education. They comprised a "Study Team" which was commissioned by the Plaintiffs to do a comparative study of several pairs of school districts in the State. They compared three pairs of elementary districts, and three pairs of secondary districts. Schools in each pair were of similar size, with one spendina considerably more per pupil than the other. In addition to analyzing the budget data for each of these districts, members of the Study Team visited all 12 districts to observe the schools first hand, and to conduct interviews with administrators and teachers. 7 . The Study Team identified clear differ- ences between the schools in each of the pairs. They found that the better funded schools tended to offer more enriched and expanded curricula than those offered in the schools with less money. The richer schools were also better equipped in the areas of textbooks, instructional equipment, audio-visual instructional materials, and consum- able supplies. With respect to buildings and facilities, the districts with more money were better able to maintain their facilities than were the poorer districts. The Study Team concluded: Availability of funds clearly affect the extent and quality of the educational opportunities. There is a positive correlation between the level of school funding and the level of educational opportunity. The better funded districts have a greater flexibility in the reallocation of resources to programs where there is a need. The differences in spending between the better funded and underfunded districts are clearly invested in educationally related programs. *All 12 school districts in this study exhib- ited a responsible and judicious use of their financial resources. R. Mattson, M. Pace, and J. Picton, Does Money Make a Difference in the Quality of Education in the - - - - - - Montana Schools? 218. Intervenor-Plaintiff MEA commissioned a study similar to that conducted by Plaintiffs' Study Team. Dr. Gary Gray, an assistant professor in Eastern Montana College's School of Education, studied educational opportunities in a number of high and low spending school districts in Montana. His methodology differed from that of the Plain- tiffs' Study Team, but he arrived at essentially the same conclusions. Dr. Gray used an extensive checklist of indicators to compare educational opportunities among school districts within two expenditure classifications, a low expenditure category, and high expenditure category. 219. Dr. Gray concluded that there are sub- stantial differences in educational opportunities among Montana school districts, which are manifest- ed significantly between the high versus low expen- diture categories which he studied. More specifically, he found that wealthier districts offered more science classes, i n labs which were typi-cally larger, better stocked with more equip- ment and consumable supplies, with more storage, and generally more functional than those in poorer districts. Consequently, students in wealthier districts had more "hands on" learning experiences than students in poorer districts. Dr. Gray found the same things to be true in the home economics and industrial arts programs. Similarly, schools with more money tended to offer a wider and more enriched range of courses in the language arts, including foreign languages. 220. In the specialty areas of physical education, music, and art, the wealthier schools offered more opportunities. Gifted and Talented Programs were much stronger in the high expenditure districts. Consistant with the situation in many Plaintiff districts, Dr. Gray found that many of the low expenditure districts could not even afford to offer a Gifted and Talented Program. 221. With respect to computers, he found significant differences, with the high expenditure districts having more and better computers and computer labs. He also found significant differ- ences between the two expenditure categories for library and media center services, with the high expenditure districts having larger and newer book collections, larger periodical collections, larger reference collections, larger audio-visual collec- tions, and better special collections. 222. With respect to facilities, high expen- diture districts reported that they have not had to defer necessary maintenance or work projects due to a lack of funds, as have low expenditure districts. 223. Wealthier districts also offer a wider range of extracurricular activities to students than low expenditure districts. 224. In sum, the comparative evidence estab- lishes that spending differences among similarly sized school districts in the State result in unequal educational opportunities for students. Furthermore, the comparative evidence verifies the fact that the deficiencies and problems identified by Plaintiff witnesses are part of a consistent pattern in lower-spending districts, and that such deficiences and problems are not consistantly found in relatively higher spending districts. [footnotes and citations to exhibits omitted] The problems were compounded by the adoption of Initia- tive 105 in the November 1986 general election. In 1987 the Legislature adopted Senate Bill 71. See, 55 15-10-401, -402, -411, and -412, MCA. The District Court correctly found that the net effect was to freeze property tax levies at 1986 levels, which resulted in the locking in of any disparities and inequities. Federal "874" funding is not presently included in the State's computations for the funding of schools. However, plaintiffs' experts did include "874" funds in some of their studies comparing the wealth of various school districts. Intervenor-defendant Hays-Lodge Pole Elementary School Dist., et al., (Hays-Lodge Pole) is an association of Montana public schools which receive "874" funds by reason of the attendance of Indian students on and around the 7 federal treaty reser- vations in Montana. Hays-Lodge Pole argued that "874" funds should remain outside of the State's budgetary process. The District Court concluded that education is a funda- mental right under Montana's Constitution. It concluded that, under the 1985-86 system of funding public elementary and secondary schools, disparities in per pupil spendinq among schools as a result of disparities in local property wealth do not even pass the rational basis test of equal protection analysis. It concluded that the concept of local control is not related to the spending disparities now present. It further concluded that the State's budgetary difficulties do not constitute a 1-egal defense to these inequalities. The court also concluded that the Montana School Accred- itation standards do not define the constitutional right to education. It concluded that the treatment of federal "874" funding for schools with Indian enrollment exacerbates the inequalities present in the school finance system. The court ordered that the present system of school funding may remain in effect until October 1, 1989, and retained jurisdiction, but left to the Legislature the task of fashioning a consti- tutional funding system. The State of Montana and defendants Holje, Ward, and Frederich appeal the District Court's determination that the present system of school funding is unconstitutional. The Montana Board of Public Education asks this Court to clarify the comments in the District Court's findings concerning the role of accreditation standards which the Board establishes. Hays-Lodge Pole raises five allegations of error in the District Court's ruling that federal "874" funding should he considered for purposes of equalization. Plaintiffs cross-appeal on the denial of their request for attorney fees. I Does Montana's system of funding the public schools violate the education article, Art. X, of the Montana Constitution? Art. X I Sec. 1, Mont.Const., provides: (1) It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state. ( 2 ) The state recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity. (3) The legislature shall provide a basic system of free quality public elementary and secon- dary schools. The legislature may provide such other educational institutions, public libraries, and educational programs as it deems desirable. It shall fund and distribute in an equitable manner to the school districts the state's share of the cost of the basic elementary and secondary school system. By referring to the discussions in the transcript of the 1972 Montana Constitutional Convention, the State contends the provision in subsection (1) that "[elquality of educa- tional opportunity is guaranteed to each person," is an aspirational goal only. We disagree with that contention. In interpreting the Constitution, as in statutory construc- tion, this Court must first look to the plain meaning of the words used. State ex rel. Cashmore v. Anderson (1972), 160 Mont. 175, 184, 500 P.2d 921, 926. In the first sentence of Art. X, Sec. 1(1), the framers of the Constitution clearly stated the "goal" of the people to establish a system of education which will develop the full educational potential of each person. In the next sentence, the framers did not use the term "goal." Instead they stated that equality of educational opportunity "is guaranteed" to each person of the state. As we review our Constitution, we do not find any other instance in which the Constitution "guarantees" a particular right. We conclude that the plain meaning of the second sentence of subsection (1) is that each person - is guaranteed equality of educational opportunity. The plain meaning of that sentence is clear and unambiguous. The State argues that the last sentence of subsection (3) limits the Legislature's duty in connection with the guarantee of equal educational opportunity. It points out that Foundation Program funds are conceded by all parttes to have been distributed in an equitable manner, and then sug- gests that because the State has distributed such funds in an equitable manner as required under the last sentence of subsection (3), the Legislature has met its constitutional obligations as required under Art. X, Sec. 1. Art. X , Sec. 1(3), Mont.Const., requires that the Legis- lature shall provide a basic system of free quality educa- tion, that it may provide various types of educational institutions and programs, and that the state's share of the cost of the basic system shall be distributed in an equitable manner. There is nothing in the plain wording of subsection ( 3 ) to suggest that the clear statement of the obligations on the part of the Legislature in some manner was intended to he a limitation on the guarantee of equal educational opportu- nity contained in subsection (1). The guarantee provision of subsection (1) is not limited to any one branch of govern- ment. Clearly the guarantee of equal educational opportunity is binding upon all three branches of government, the legis- lative as well as the executive and judicial branches. We specifically conclude that the guarantee of equality of educational opportunity applies to each person of the State of Montana, and is binding upon a l l . branches of government whether at the state, local, or school district level. We hold that the last sentence of subsection ( 3 ) is not a limit- ing provision on the guarantee of equal educational opportu- nity contained in subsection (1). The evidence presented at the trial of this case clearly and unequivocally established large differences, unrelated to "educationally relevant factors," in per pupil spending among the various school districts of Montana. The evidence also demonstrated that the wealthier school districts are not funding frills or unnecessary educational expenses. Plain- tiffs' expert witnesses testified that discrepancies in spending as large as the ones present in Montana translate, in their opinions, into unequal educational opportunities. There was also unrebutted testimony that Foundation Program funding falls short of even meeting the costs of complying with Montana's minimum accreditation standards. The State attempted to present an argument at trial that equality of educational opportunity is more appropriately measured by output, that is, by analvsis of the success of students from the different school districts, rather than by input of dollars. The District Court concluded that the State had failed to submit convincing evidence on the output theory of measurement. We agree with that conclusion on the basis of this record. The District Court found similarly unpersuasive the argument that statewide fiscal difficulties in the last few years somehow excuse the disparities in the spending per pupil in the various school districts. We agree with the District Court that such fiscal difficulties in no way justify perpetuating inequities. The State also argued that the Constitutional directive of local control of school districts, Art. X I Sec. 8, Mont. Const., requires that spending disparities among the dis- tricts be allowed to exist. That section provides: School district trustees. The supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law. While Section 8 does establish that the supervision and control of schools shall be vested in the board of trustess, there is no specific reference to the concept of spending disparities. Further, as made especially apparent after the passage of Initiative 105, the spending disparities among Montana's school districts cannot be described as the result of local control. In fact, as the District Court correctly found, the present system of funding may be said to deny to poorer school districts a significant level of local control, because they have fewer options due to fewer resources. We conclude that Art. X I Sec. 8, Mont.Const., does not allow the type of spending disparities outlined in the above quoted findings of fact. In 1972, when our Constitutional Convention met, approx- imately 65% of General- Fund revenues were funded through the Foundation Program. Con.Con. Tr. 2157. The transcript of the debate on Art. X, Sec. 1(3), Mont.Const., clearly ex- presses the delegates' concern with that level of fundinq. See, for example, Con.Con. Tr. 1981-86, 2152-59. We conclude that as a result of the failure to adequate- ly fund the Foundation Program, forcing an excessive reliance on permissive and voted levies, the State has failed to provide a system of quality public education granting to each student the equality of educational opportunity guaranteed under Art. X, Sec. 1, Mont.Const. We specifically affirm that portion of the District Court's Conclusion of Law 17 which holds that the spending disparities among the State's school districts translate into a denial of equality of educational opportunity. We hold that the 1985-86 system of funding public elementary and secondary schools in Montana is in violation of Article X, Section 1 of the Montana Constitution. In analyzing school funding under an equal protection analysis pursuant to the provisions of Art. 11, Sec. 4, Mont.Const., the District Court concluded that education is a fundamental right and also made numerous and extensive find- ings of fact and adopted a number of conclusions of law. Because we have concluded that the school funding system is unconstitutional under Art. X, Sec. 1, Mont.Const., we do not find it necessary to consider the equal protection issue. We therefore make no decision with regard to the findings of fact and conclusions of law relating to the equal protection of the laws analysis of the District Court, and in particular do not rule upon the determination by the District Court that. education is a fundamental right. Several of the parties suggested that in the event we concluded the school funding was unconstitutional, we should spell out the percentages which are required on the part of the State under the Foundation Program and for the d-istricts under the voted levy system. P 7 e are not able to reach that type of a conclusion. As previously indicated, the 1985-86 school funding involved more than 20 different funds. The control of such funds is primarily in the Legislature. Our opinion is not directed at onlv one element of the system of funding public schools in Montana, as we recognize that the Legislature has the power to increase or reduce various parts of these elements, and in addition to add other elements for such funding. While this opinion discusses spending disparities so far as pupils are concerned, we do not suggest that financial considerations of that type are the sole elements of a quali- ty education or of equal educational opportunity. There are a number of additional factors which are a significant part of the education of each person in Montana, including but not limited to such elements as individual teachers, classroom size, support of the parents of students, and the desire and motivation on the part of the student which moves him or her to seek earnestly after an education. By not discussinq these elements, we do not in any way suggest they are irrele- vant, for the financing of education is only one aspect nf equal educational opportunity. Our opinion is intentionally limited to the elements discussed in the opinion. Should this Court clarify the District Court's findings regarding the accreditation standards promulgated by the Montana Board of Public Education? Under Art. X, Sec. 9 (3) , Mont. Const. , the Montana Board of Public Education (Board) has general supervisory power over the public school system. The Board has adopted state- wide accreditation standards for elementary and secondary schools. Those standards require teachers to be certified by the State, limit teachers' cl-ass loads, outline a minimum instructional program (for example, courses required for high school graduation), and establish minimum size, maintenance, and safety standards for school facilities. The Board argues that these standards establish the instructional component of a basic system of free quality public elementary and secon- dary schools. It objects to the District Court's findings no. 262 and 270, which read as follows: 262. The testimony of superintendents, teachers, and trustees clearly establish that from a profes- sional educators' perspective, the minimum Accredi- tation Standards in no way define a qualitv education. 270. In sum, the Montana School Accreditation Standards are minimum standards only, and do not provide the basis for defining quality education. The Board also objects to the last sentence of the court's conclusion no. 18: 18. . . . Thus, the Montana School Accreditation Standards do not define either the constitutional rights of students or the constitutional responsi- bilities of the State of Montana for funding its public elementary and secondary schools. The Board moved the District Court to amend the above find- ings, but the motion was deemed denied after 45 days had passed, under Rule 59(d), M.R.Civ.P. None of the parties disagree with finding no. 261 of the District Court that the accreditation standards establish a minimum upon which quali- ty education can be built. After reviewing the Board's argument and the transcript, we conclude that the findings and conclusion in question should be a-mended as requested. We therefore hold that findings of fact 2 6 2 and 2 7 0 and conclusion of law 1 8 shall be amended to read as follows: [Finding of Fact 262.1 The testimony of superin- tendents, teachers, and trustees clearly estab- lishes that from the professional educators' perspective, the minimum accreditation standards do not fully define a quality education. [Finding of Fact 270.1 In sum, the Montana School Accreditation Standards are minimum standards upon which quality education must be built. [Conclusion of Law 18.1 Thus, the Montana School Accreditation Standards do not fully define either the constitutional rights of students or the con- stitutional responsibilities of the State of Mon- tana for funding its public elementary and secondary schools. 111 Did the District Court err in its findings and conclu- sions relating to consideration in the equalization process of federal " 8 7 4 " funding? Public Law 81-874 ( " 8 7 4 " ) was enacted by the United States Congress in 1 9 5 0 . It provides federal payments to school districts which serve children who reside on or whose parents are employed on federal property, including Indian lands, or who have a parent on active duty in the military. Hays-Lodge Pole asserts that, contrary to the District Court's finding, Public Law 81-874 has as one of its purposes assisting with the special problems in Indian education and is not only a federal effort to replace lost tax revenue resulting from the federal presence. It argues also that the court's finding that, in some districts, " 8 7 4 " funding has been used as tax relief is irrelevant and shows only the State's neglect of the special needs of Indian children. It contends that "874" funding is closely tied to the need on and near Indian reservations +or additional school fundinq because of the extraordinary educational difficulties present - language barriers, poverty, unemployment, and cultural differences. It maintains that any inequity present in "874" districts will vanish when the Montana funding system is equalized without consideration of "874" funding and that the history of neglect of Indian education justifies judicial protection of the benefits provided by "874" fundinq. Hays-Lodge Pole argues that the District Court erred in ruling that the Legislature may consider "874" funding in equalization. This issue is resolved by the federal statutory require- ment that the United States Secretary of Education must approve of Montana's equalization plan before "874" fundinq may be taken into account. 20 U.S.C.A. S 240(d) (Supp. 1988). The District Court recognized this requirement in its finding no. 235, and found that Montana's system had not secured that federal approval. We specifically affirm the District Court's Conclusions No. 20: 20. A state may factor P. L. 81-874 revenue into its school finance equalization system only if the system meets the federal definition of an equalized program, subject to the determination of the Secretary of Education. [See Gwinn Area Commu- nity Schools v. State of Michigan, 741 F.2d 840 (6th Cir. 1 9 8 4 ) l ~ontana presently does not and may not factor P. L. 81-874 revenue into the Foun-- dation Program equalization formula, because Mon- tana' s system does not meet the federal definition of an equalized progra-m. Art. X I Sec. 1(2), Mont.Const., states as fol.l.ows with regard to our American Indians: The state recognizes the distinct and unique cul- tural heritage of the American Indians and is committed in its educational goals to the preserva- tion of their cultural integrity. That provision establishes a special burden in Montana for the education of American 1ndia.n children which must be addressed as a part of the school funding issues. We do invite the attention of the Legislature and the executive branch to Montana's failure to meet the federal equalization requirements. As a part of the changes to be made in Mon- tana's school funding system, it may be appropriate to meet the federal equalization requirements in order that "874" funding may be factored into the State's equalization formula. IV Did the District Court err in denying plaintiffs' attor- ney fees? Plaintiffs argue that they are entitled to recover their reasonable attorney fees under the "common fund" doctrine. This Court has described that doctrine as one which: . . . provides that when a party through active litigation creates, reserves or increases a fund, others sharing in the fund must bear a portion of the litigation costs including reasonable attorney fees. The doctrine is employed to spread the cost of litigation among all beneficiaries so that the active beneficiary is not forced to bear the burden alone and the "stranger" . e l passive) benefi- ciaries do not receive their benefits at no cost to themselves. Means v. Montana Power Co. (Mont. 1981), 625 P.2d 32, 37, 38 St.Rep. 351, 355-56. See also Serrano v. Priest (Cal. 1977), The District Court concluded that the common fund doc- trine did not apply in this case because no common fund was created from which attorney fees and expert witness fees could he paid. Tn a similar manner, under the "substantial benefit" concept which has grown out of the common fund doctrine, the District Court concluded that no substantial benefit had resulted from its opinion and that no such bene- fit would accrue unless the Legislature acts. We conclude that the District Court properly denied attorney fees. We affirm the District Court's denial of plaintiffs' request for attorney fees . v We approve the District Court's rationale that "in order to provide the Legislature with the opportunity to search for and present an equitable system of school financing,'' the holdings in this case should not become immediately effec- t ive . We modify the reservation of jurisdiction by the District Court to provide that this Court specifically re- tains jurisdiction until July 1, 1989, and on that date the holdings of this opinion shall become fully in effect for all school terms comrnencins after that date. We Concur: Justice John C. Sheehy, concurring: I concur emphatically with the foregoing opinion but wish to comment respecting the entitlement of plaintiffs to attorney fees. We cite Serrano v. Priest (Cal. 1977) , 569 P. 2d 1303, 1310- 1311, to the effect that the common fund theory and the substantial benefit theory do not at this time present a basis for attorney fees. Not to be forgotten, however, is that in Serrano, the court awarded the plaintiffs attorney fees on the "private attorney general1! theory. If, as we all hope, because of the efforts of the plaintiffs an equitable funding of education is eventually established, all of the requisites for an award of attorney fees on the private attorney general theory would be present in my view. ~ ~ ~ - R x Justice 4. A % - - %	February 1, 1989
0b589f84-143e-4d52-a050-f4d4ff7afb01	BALLARD v CLARK FORK VALLEY HOSPIT	N/A	88-476	Montana	Montana Supreme Court	No. 88-476 IN THE SlJPREME COURT OF THE STATE OF MONTANA 1989 VICKI BLACK BALLARD , Claimant and Appellant, -vs- CLARK FORK VALLEY HOSPITAL, Employer, and STATE COMPENSATION INSURANCE FIJND, Defendant and Respondent. APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy Reardon, Judge presiding. COUNSEL OF RECORD: For Appellant: Milodrago~r_i.ch, Dale & Dye; Kristine T , . Foot, Missoula, Montana For Respondent : Rebecca T,. Smith, Agency Legal Services, Helena, Montana. Submitted on Briefs: Dec. 9 , Decided! January 26, 1989 Mr. Justice R. C. McDonough delivered the Opinion of the Court. Appellant Ballard appeals the judgment of the Workers' Compensation Court. The lower court held that Ballard suffered a compensable injury, but that Ballard' s injury reached maximum healing a short time from the date it occurred. The lower court also held that no entitlement existed after Ballard reached maximum healing. Rallard appeals this decision. Respondent, the State Compensation Insurance Fund (Fund), cross appeals contending that the lower court erred in finding the existence of a work injury. We affirm the lower court on both the appeal and the cross appeal. The Clark Fork Valley Hospital in Plains, Montana, employed Ball.ard as a nurses aid. On January 12, 1981, Ballard injured her back catching and lifting a patient who was falling to the floor. At the time of the injury she knew that she had hurt her back, but she continued to work her regular hours through January 20, 1981. On January 20, 1981, Ballard aggravated the back injury bending over to pick up an article of clothing while shopping. The severe pain from the aggravated injury led Ballard to consult Dr. Albertson. Dr. Albertson suspected a disk herniation, and prescribed six weeks bed rest. Approximately two weeks later Ballard told Albertson her back had improved and that she could return to work. Albertson released her to work, and noted that he may have been mistaken on his earlier diagnosis of disk herniation because Ballard had improved so quickly. Ballard returned in early February with reduced hours. The record is unclear on whether Ballard or the Hospital requested the reduction in work time. Ballard contends on appeal that the injury forced her to accept fewer hours on the job. Ballard testified that at that time she returned to work the injury was improved but not completely healed. She also testified that the press of financial needs forced her back to work even though performance of her job duties caused pain. She continued her employment at the Hospital until 1984 when she quit in anticipation of the birth of her third child. After the birth of her third child Ballard found employment at Benji's Restaurant, and at Dairy Queen. Ballard also gave birth to two other children prior to 1987. Ballard testified that her pregnancies never aggravated her allegedly continuing back problems. On September 29, 1986, Ballard saw Dr. Wielenga complaining of severe back pain. Dr. Wielenga suspected Ballard suffered from nerve compression syndrome resulting from a herniated disk. The parties agree that available tests could confirm or refute the presence of a herniated disk, but that these tests have not been performed. Resolution of Ballard's appeal hinges on conflictinq evidence on the presence of a disabling condition from a work injury. Rallard's testimony supports a conclusion that the source of her 1986 back problems may be traced to the injury in 1981. Ballard testified that the injury never healed and that the pain never completely subsided, but that she endured the presence of her injury for lack of funds to seek a medical solution. However, the Fund effectively argues that the circumstances and passage of time surrounding Ballard's injury and her return to work fail to support Ballard's version of events. For example, Ballard failed to seek any medical treatment for her back hetween 1981 and 1986. She had two children in the interim, and continued her employment at the hospital. The Fund also pointed out that in January of 1981 Ballard fil-ed a report on another back injury at work. When questioned on this incident, Ballard testified that she could not remember filing the injury report. The report conflicted with Ballard's testimony that the single injury to her back occurred in January of 1981. The Fund also contends that the medical evidence supports the decision of the lower court. For example, Dr. Albertson testified on whether it was possible to connect the prior injury to Ballard's current condition as follows: Sometimes I think that is possible to do. In this case I don't think it is because we didn't see her enough to really document exactly what was wrong with her and where it was because she got well so quickly. So no x-rays were taken and she had no negative neurologic--or no positive neurologic findings or anything else to localize the disk area. If we had known she had hurt the L4-5 disk in the original area and we knew that she hurt the L4-5 disk later, you could probably make a correlation, but there's no way to know that in this case. The judgment of the lower court summarized the medical and other evidence as follows: Since leaving Clark Fork Regional hospital in 1983, she [Ballard] has worked at Benji's [Restaurant] and Dairy Queen. She has also given birth to three children prior to her complaint of back pain to Dr. Wielenga on September 29, 1986. Because there were no x-rays taken or neurological tests performed in 1981, Dr. Albertson could not make a correlation between her 1986 condition and her 1981 injury. Because the claimant has the burden of proving her claim by a preponderance of the credible evidence, the Court finds that the claimant did not carry that burden and failed to relate any future wage loss after she returned to work February 4, 1981. Ballard contends the finding that she failed to carry the burden in showing a causal connection ignores other medical testimony. For example, Ballard contends that Dr. Wielenga's diagnosis provided the necessary evidence of causation. Wielenga concluded that: [Ilt is a reasonable possibility that her acute back problems of five years ago, which are similar to those she is now experiencing, could have resulted from the lifting of the patient at the hospital. It is, indeed, possible that the lifting of the patient with the associated tingling into her leg may have caused a weakening of her disk. This may have resulted, a few days later [while shopping], in a more complete herniation with minimal stress placed on the back and the resulting acute symptoms of nerve compression that were seen on her exam of January 21, 1981. Ballard contends that Dr. Wielenga's statement and Albertson's 1981 diagnosis provide evidence sufficient to demonstrate that her 1981 injury more probably than not set in motion a continuous and progressively deteriorating condition leading to her disability in 1986. We disagree. Dr. Wielenga qualified his opinion on the possibility of a connection between the conditions as follows: This is a reasonable medical possibility, although I cannot make a definite statement as to whether this actually occurred in Vicki's case since I was not at all a part of her initial evaluation. And Albertson, the physician conducting the initial examination, hol-ds the opinion that it is impossible to connect Ballard's condition in 1986 with her injury in 1981. Given the fact that Albertson participated in the initial evaluation and Wielenqa did not, the lower court was justified in finding Albertson's opinion more probative than Wielenga's opinion. Ballard also argues that the Fund failed to carry the burden of showing that an intervening cause resulted in Ballard's 1986 impairment citing Gaffney v. Industrial Accident Board (1955), 129 Mont. 394, 404, 287 P.2d 256, 261. However, in Gaffney, the only "sworn testimony before the Board, from which a rational finding can be made, is that the injury received by claimant was a contributing cause of his present total and permanent disability." Gaffney, 287 P.2d at 261. Here, the medical evidence and the lapse of time during which Ballard continued her employment at the hospital provide evidence to make a rational finding that the injury did not contribute to her condition in 1986. We also agree with the Fund that the facts and law in Brown v. Arnent (Mont. 1988), 752 P.2d 171, 45 St.Rep. 508, and Currey v. 10 Minute Lube (Mont. 1987), 736 P.2d 113, 44 St.Rep. 790, more closely control this case than Gaffney. In Brown the claimant failed to carry the burden of showing a causal connection because: The medical evidence is inconclusive and, at best, establishes only a possibility of a causal link. As noted by the Workers' Compensation Court, this is a difficult case to chart and "too much time has passed without explanation and without a tracing of the injury through that time." Following December 1, 1978, claimant did not seek any medical attention for his back for approximately three and one-half years. The evidence presented fails to sufficiently demonstrate that treatment rendered after that period was a direct result of the injury received in 1978 . . . Brown, 752 P.2d at 175. In Currey this Court stated: "Medical possibility" is to be weighed just as any other evidence; if supported by other independent evidence it is "acceptable" to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate the conclusion that the claimant has met his burden of proof under the Act. Currey, 736 P.2d at 116 (quoting Wheeler v. Carlson Transport (Mont. 1985), 704 P.2d 49, 53-54, 42 St.Rep. 1177, 1183). Ballard fails to distinguish Currey and Brown. Ballard argues further that the lower court erred in relying on Stangler v. Anderson Meyers Drilling Co. (Mont. 1987), 746 P.2d 99, 44 St.Rep. 1944. In Stangler evidence that the claimant had returned to strenuous labor supported a finding that the injury had reached maximum healing. Stangler, 746 P.2d at 102. According to Ballard, the lower court misinterpreted Stangler by holding that the work release given by Albertson to Ballard established the end of the healing period. We agree that situations exist where the Workers1 Compensation Court properly finds that claimants have returned to work prior to maximum healing of their injury. Tenderholt v. Travel Lodge Intll. (Mont. 1985), 709 P.2d 1011, 42 St.Rep. 1792. And that Stangler should not be interpreted to mean that a work release settles the maximum healing issue. However, here the lower court focused on evidence in addition to the release. Finally, Ballard argues that equity prevents a finding that she failed to prove her case. According to Ballard, because of the Fund's initial denial of her claim she lacked medical benefits to make affordable the necessary testing to confirm the presence of a herniated disk. Her brief states, "Vicki should not he required to satisfy her burden of proof bv presenting medical evidence of equal weight to the tests the defendant deni~d her." The claimant bears the initial liability for medical expenses. Section 39-71-704, MCA; ARM S 24.29.1401. Section 39-71-2907, MCA, authorizes assessment of penalties on insurers who unreasonably deny benefits. Thus, under the Montana Workers' Compensation Act no issue exists on the failure of the Fund to provide tests to diagnose Rallard's condition. The Fund's position on cross appeal concedes that medical testimony demonstrates a possibility that a work injury occurred. However, the Fund contends that the lower court erred in holding that Ballard carried her burden of demonstrating an entitlement to temporary total disability benefits from January 21, 1981, to February 4, 1981. The record amply supports the lower court's decision on this issue. Ballard testified that the back strain she suffered at work caused her to consult Dr. Albertson. Dr. Alhertson prescribed six weeks bed rest. Ballard missed work during the period the lower court found entitled her to temporary total disability benefits. This evidence sufficiently supports the lower court's decision that an injury occurred. AFFIRMED. Justice	January 26, 1989
364f3671-ecfd-426a-9d09-01d3af4c0fa8	FIRST BANK WESTERN MONTANA MISSOULA	N/A	88-392	Montana	Montana Supreme Court	No. 88-392 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 FIRST BANK WESTERN MONTANA MISSOULA, Plaintiff and Respondent, -vs- VERNONT T. GREGOROFF and LUANNE GREGOROFF, Defendants and Appellants. APPEAL FROM: District Court of the Second Judicial District, In and for the County of Silver Bow, The Honorable Mark P. Sullivan, Judge presiding. COUNSEL OF RECORD: For Appellant: David L. Holland argued, Butte, Montana David J. Wing argued, Butte, Montana For Respondent: Corette, Smith, Pohlman & Allen; Lisa Swan Semansky %rgued and R.D. Corette, Jr. argued, Butte, Montana a 3- =3 4 0 >*< < - : , - 3 L,: Submitted: January 10, 1989 !Lj ,i Decided: March 2 , 1989 - ( N -. LL . - 0 cr3 -'r. Filed: cc -%- c m L L J : : -- P CT . ' 4 - 0 c 3 4 x Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. Appellants Vernon and Luanne Gregoroff challenge the constitutionality of Montana's Claim and Delivery statutes, under which their trailer was seized by the Butte-Silver Bow County sheriff. Appellants allege they were denied procedural due process when the District Court, upon motion of respondent First Bank Western Montana, ordered the seizure of the trailer without providing notice of or opportunity for an immediate post-seizure hearing. The appellants' motion to quash the claim and delivery order was denied, and respondent's motion for summary judgment was subsequently granted. This appeal arises from the District Court's order and judgment entered against the appellants. We affirm, but remand for clarification of the judgment. In 1983, Gregoroffs purchased a fifth-wheel trailer from Rangitsch Brothers in Missoula, Montana. The purchase was financed through respondent First Bank Western Montana (hereinafter referred to the Bank). Gregoroffs simultaneously executed a retail installment contract which granted a security interest in the trailer to the Bank. Gregoroffs ultimately defaulted on the installment contract, and the Bank was unable to locate the trailer for several months after the default. After locating the Gregoroffs, the Bank unsuccessfully attempted to have the note payments brought current. The Gregoroffs were informed by Bank employee Donna Duffy that they must either make the late note payments under the contract or turn the trailer over to the Rank. Mr. Gregoroff informed Duffy that he would not surrender the trailer, but would be taking a job in Arizona which would enable him to make the note payments. Although he informed Duffy that he, Mrs. Gregoroff and their young daughter were living in the trailer, he did not specifically state that he was taking his family or the trailer to Arizona. On September 16, 1986, the Bank commenced a Claim an Delivery action against the appellants, as provided for und-er S 27-17-101 et seq., MCA. Lisa Swan Semansky, counsel for the Bank, made an ex parte appearance before District Judge Arnold Olsen for Claim and Delivery of the trailer. No notice was given to the Gregoroffs that the Bank was seeking a court ordered delivery. Recause Judge Sullivan was not available, the matter was heard by Judge Olsen. At the request of the Judge, the Motion was presented in the Clerk of Court's office, not in the courtroom, and, therefore, no record. was made of the hearing. The Bank's motion for Claim and Delivery was supported by a bond in an amount double the value of the property, as required by 5 27-17-205, MCA. The bond. ensures the defendant is protected in the event the seizure is determined to be unlawful. Additionally, Semansky attached to the motion the Bank's complaint and an affidavit of Donna Duffy. The af f ida~rit stated in part: 10. Rased on information and bel-ief, Gregoroffs are using and living in the 1983 40 Foot Aluma Lite fifth-wheel trailer, Serial No. KR381V29DW002152, and thereby are decreasing its value. 11. The . . . trailer . . . is decreasing in value by virtue of the fact that such property decreases in value with age. 14. Based on her conversation with Defendant Vernon Gregoroff on September 15th, 1986, when he refused to relinquish possession of the 1983 40 foot Aluma Lite fifth-wheel trailer, this affiant believes that Gregoroffs will take the trailer to Arizona some time within the next week. Judge Olsen signed the order and the seizure was completed the evening of September 17, 1986, by the Butte-Silver Bow County sheriff. The trailer, which contained most of the Gregoroffs' personal belongings, was taken to Rangitsch Brothers' lot in Missoula. On October 1, 1986, Gregoroffs filed a motion to quash the order. District Judge Mark Sullivan denied this motion, nearly fourteen months later, on December 31, 1987. The Bank then filed a motion for summary judgment on its complaint January 20, 1988. This motion was granted, and judgment was entered for the Bank on May 18, 1988. Gregoroffs appeal from this judgment. Gregoroffs raise four issues for review: 1. Does S 27-17-203 (2), MCA, violate the due process clause of the Fourteenth Amendment of the United States Constitution? 2. Does § 27-17-203 (2), MCA, violate Article 11, Section 17 of the Montana Constitution? 3. Did the District Court err in granting its order to seize the property without a hearing in open court as required by the statute? 4. Did the District Court err in granting the order based on a fatally defective affidavit? Issue Nos. 1 and 2 Does § 27-17-203 (2), MCA, violate due process guarantees of the United States and Montana Constitutions? Appellants argue S 27-17-203 (2) , MCA, is unconstitu- tional because it allows a court ordered seizure of property without requiring notice of or opportunity for an immediate post-seizure hearing. We disagree. Section 27-17-203, MCA, provides: The sheriff shall make no seizure unless an order from a judge of the court having jurisdiction of the cause is attached to the affidavit. The judge may sign such an order if he is satisfied: (1) that the party seeking possession of the property has made a prima facie showing of his right to possession and the necessity for seizure at a show cause hearing before him with at least 3 days' notice to the person in possession of the property; if such person cannot be found for personal service, notice posted on the property and in three public places in the county where the property is located is sufficient service for this purpose; or ( 2 ) that the delay caused by notice and a hearing would seriously impair the remedy sought by the party seeking possession. Evidence of such impairment must be presented in open court, and the court must set forth with specificity the reasons why such delay would seriously impair the remedy sought by the person seeking possession. In Mitchell v. W.T. Grant Co. (1974), 41.6 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, the Supreme Court modified its earlier position that a hearing must always precede a court ordered seizure of property. The Court held that Sniadach v. Family Finance Corp. (1969), 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, and Fuentes v. Shevin (19721, 407 U.S. 67, 9 2 S.Ct. 1983, 32 Ij.Ed.2d 556, did not categorically require a pre-seizure hearing in every situation. Their import, however, is not so clear as petitioner would have it: they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pre-termination hearing where a full and immediate post-termination hearing is provided. The usual rule has been " [wlhere only property rights are involved, mere postponement of the judicial enquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate." Phillips v. Commissioner, 283 U.S. 589, 596-597 (1931). Mitchell, 416 U.S. at 611. Similar to Louisiana's sequestration procedure outlined in Mitchell, Montana's Claim and Delivery procedure balances and protects the interests of both parties involved in the action. Subsection (2) of S 27-17-203, MCA, is an extra- ordinary remedy, and we in no way countenance abuse of its provisions. However, we conclude the statutes do provide the constitutional safeguards required by the United States and Montana Constitutions. A pre-hearing seizure may only be obtained under circumstances which indicate the plaintiff's remedy would be seriously impaired. The plaintiff must swear to facts which support this claim, and must file a bond in an amount double the value of the property to protect the defendant. Additionally, the delivery order can only be obtained from, and under the supervision of, a judge or justice of the peace, not a court clerk or adminis1trative officer. Moreover, Montana's statutes allow the defendant to file a bond to immediately regain possession of the property. While S 27-17-203(2), MCA, does not provide for a post- seizure hearing, a defendant may immediately apply for a motion to quash the order, which the appellants did in this action. Additionally, under Rule 1, M.R.App.P., a defendant can promptly seek review by this Court of a denial of that motion. Furthermore, as mentioned in Mitchell, a final judicial determination of liability follows the seizure, at which time the defendant can challenge the validity of the Claim and Delivery order. The appellants knew they had defaulted under the terms of the retail installment contract. The terms of the contract gave the Bank the right to repossess the trailer when the appellants defaulted. Such a property interest distinguishes this case from Fuentes, supra. Furthermore, the appellants were notified by the Bank in writing, and by Duffy in person, that the trailer would be repossessed if a resolution could not be reached. No satisfactory effort to resolve the delinquency was made and, therefore, it came as no surprise to the appellants when the trailer was seized. As noted in Mitchell, 416 U.S. at 610, " [t] he requirements of due process of law 'are not technical, nor is any particular form of procedure necessary."' We conclude the substantial rights of the appellants have been protected and that the Claim and Delivery statutes are not unconstitutional. Issue No. 3 Appellants argue the District Court erred because the Bank's attorney met with Judge Olsen, and the order was signed, in the Clerk of Court's office, not in "open court" as required by the statute. While appellants raise a technical argument, the Judge's decision to meet with Semansky and hear the evidence in the Clerk of Court's office does not constitute reversible error. Subsection (2) of S 27-17-203, MCA, o n l : ? requires the evidence be presented in open court. It does not require a record of the hearing be made. The "open court" language requires the plaintiff or his attorney be present before the judge or justice when the ex parte motion for Claim and Delivery is made, and prevents the plaintiff from obtaining the order merely upon written application. Judge Olsen was acting in his official, judicial capacity when he heard the evidence and concluded sufficient evidence was present to issue the order. Issue No. 4 Finally, appellants argue it was error to issue the order based on an affidavit which contained the conclusory allegations of employee Duffy. We again disagree. Section 27-17-201, MCA, requires that an affidavit, by the person claiming the property or someone in his behalf, state: (1) facts which establish reasonable belief that the person claiming the property is the owner or is lawfully entitled to possession and that the seizure is necessary to prevent the removal. or destruction of the property; (2) that the property is wrongfully detained by the defendant; (3) that the same has not been taken for a tax, assessment, or fine, pursuant to statute, or seized under an execution or an attachment against the property of the person claiming the property or, if so seized, that it is by statute exempt from seizure; and (4) a particular description of the property and the actual value of the property. The affidavit contained these required statements and alleged two grounds for a Claim and Delivery order: that the trailer was depreciating by the appellants' daily use of the trailer, and that Gregoroff's employer had just completed work in Butte, Montana and was beginning another job in Arizona within the next week. While mere depreciation was not the type of serious impairment contemplated by the statute, threat of removal of the property from the jurisdiction does satisfy that requirement. The statutes require the judge be satisfied by the evidence that the delay caused by a hearing would seriously impair the remedy sought. As disclosed bv the Claim and Delivery order, Judge Olsen found that a delay would seriously impair the remedy. Evidence indicates that Defendant Vernon T. Gregoroff is employed by Acme Cement and Concrete of Spokane, Washington. The job that Acme Cement and Concrete was doing in Butte, Montana ended the week of September 15th, 1986. Acme Cement and Concrete will begin a new job in Arizona. Defendant Vernon T. Gregorof f will continue to be emploved bv Acme Cement and Concrete in Arizona. Since Vernon T. Gregorof f and Luanne Gregoroff live in the property described in Exhibit "A", they will be moving the property described. in Exhihit "A" to Arizona. Removing the property described in Exhibit "A" to Arizona would preclude Plaintiff from recovering possession of the property described in Exhibit "A". Judge Olsen subsequently submitted two affidavits which express his understanding of the procedures of this case. The first affidavit states he signed the order without any hearing. The second affidavit states he signed the order because sufficient evidence was presented which satisfied him "that any delay caused by notice and a hearing would seriously impair repossession of the trailer by plaintiff-claimant in this case." We conclude Duffy's affidavit, supported by the verified complaint presented sufficient evidence to enable the Judge to conclude that notice and delay would seriously impair the Bank's remedy of repossession. Finally, we recognize a problem in the judgment. The judgment states the Bank is entitled to recover $16,058.67 plus legal interest and costs, but it does not account For the value of the trailer which has been seized. It is not disputed that the Bank is not entitled to both the trailer and its value. Section 27-17-401, MCA, entitles a plaintiff to judgment for possession of the property (or the value of the property if delivery cannot be had) . Since the Bank is now in possession of the trailer, it is not also entitled to its value. Additionally, while the order and judgment mentions attorney's fees in the amount of $10,000.85, it apparently only entitles the Bank to the value of the trailer, legal interest and costs, but no attorney's fees. However, we do not rule on this issue, but point out that, in any case, the contract does limit attorney's fees to 15% of the amount owed. We affirm, but remand this case to the District Court to clarify its judgment on these points accordingly. We concur: R	March 2, 1989
78b330a9-6192-4919-9d0f-77b600c2afa0	State v. Whitegrass	2016 MT 337N	DA 15-0730	Montana	Montana Supreme Court	DA 15-0730 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 337N STATE OF MONTANA, Plaintiff and Appellee, v. GARRETT LEE WHITEGRASS, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DDC-14-184 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Carl B. Jensen, Attorney at Law, Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana John W. Parker, Cascade County Attorney, Great Falls, Montana Submitted on Briefs: November 30, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 15-0730 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In December 2014 a jury convicted Garrett Whitegrass of felony sexual intercourse without consent. Whitegrass appeals and we affirm. The issue on appeal is whether Whitegrass’s attorney provided effective assistance of counsel. ¶3 The victim reported to the emergency room for treatment in April 2014. The evidence showed that she had been violently assaulted, suffering a concussion, severe trauma to her face including broken bones, black eyes and severe bruising, bite marks on her body and severe vaginal injuries. Whitegrass admitted to having intercourse with the victim, but claimed that he either blacked out and did not remember inflicting any injuries, or that someone else was responsible. The District Court continued the trial date twice at the request of the defense to allow for evidence analysis and witness interviews. ¶4 A week prior to trial the State obtained a recording of a May 2014 phone conversation between Whitegrass and his parents. The State provided the defense a copy of the recording on Wednesday of the week before trial. While Whitegrass remembered talking to his parents, he believed that he had not said anything incriminating and so was not concerned that the State had the recording. On the recording Whitegrass stated, 3 among other things, that the victim was “slutty” and that she “probably wanted it.” At trial the defense objected to the recording on the basis that its probative value was outweighed by its prejudicial effect, but the District Court admitted the evidence. Whitegrass testified that the point of the conversation with his mother was that he only wanted the victim to “tell the truth.” ¶5 Defense counsel met with Whitegrass at or near the time the State produced the recording to discuss the State’s plea offer of ten years with five suspended. Whitegrass rejected the offer and countered with eight years with five suspended, which the State rejected. ¶6 As the case proceeded to trial the District Court considered the admissibility of a spent condom found in the yard of Whitegrass’s residence. DNA analysis indicated that the semen came from Whitegrass’s brother. The District Court concluded that evidence of the condom was not admissible under the Rape Shield statute. On the second day of trial the defense announced that it had discovered Whitegrass’s cell phone the previous night and made it available to the State. The District Court later admitted some of the text messages that were generated between Whitegrass and the victim both prior to and after the rape. Those messages implied that the victim agreed to meet Whitegrass; that she was bringing drugs for him (Klonopin); and that the two planned to have sex. The content of these messages caused the State to recall the victim, who recanted parts of her testimony from the day before in which she denied that she had given drugs to Whitegrass. 4 ¶7 After the jury convicted Whitegrass the District Court granted a defense motion to appoint new counsel for post-trial proceedings. Whitegrass’s new attorney filed a “Motion to Enforce Plea Offer” requesting that the State be required to re-offer its rejected plea deal of ten years with five suspended. The District Court conducted an evidentiary hearing. The parties apparently agreed that the hearing would not focus on whether Whitegrass’s trial counsel provided effective assistance. ¶8 Trial counsel testified that on December 3 he received the recording of the phone conversation between Whitegrass and his parents, and that it contained incriminating statements. Counsel testified that he believed the biggest hurdle for the defense was the severity of the victim’s injuries, but that there was a chance of “prevailing” by impeaching her account of the events. He said that he probably recommended that Whitegrass take the State’s plea offer but was not sure. Whitegrass testified that he knew about the recorded conversation before he rejected the State’s plea offer, but that his construction of the situation was that the conversation was “all the State had on me”; that they “didn’t have DNA on me”; and that the State’s case was “weak.” ¶9 At the conclusion of the testimony the District Court determined that Whitegrass had not demonstrated that he was denied the opportunity to make a knowing and voluntary plea decision. Rather, Whitegrass made a deliberate choice to not learn more about the evidence (principally the recording) because of his own belief that he would not have said anything that damaged his defense. The District Court noted that Whitegrass never claimed that his attorney failed to discuss the recording with him and never denied 5 that he had the opportunity, if he chose, to examine the contents of the recording. The District Court sentenced Whitegrass to a lengthy prison term. ¶10 Whitegrass appeals his conviction, but he does not appeal denial of his motion to enforce the State’s rejected plea offer. Rather, he contends that his attorney was ineffective. He contends that in the face of the “late” production of the recording, the DNA evidence from the condom, and the contents of his cell phone, his attorney should have requested a continuance of the trial in an effort to re-engage the State in plea negotiations. ¶11 This Court evaluates claims of ineffective assistance of counsel under the test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Whitlow v. State, 2008 MT 140, ¶ 10, 343 Mont. 90, 183 P.3d 861. First, the defendant must show that his attorney’s performance was deficient by demonstrating that it fell below an objective standard of reasonableness. Whitlow, ¶ 14. There is a strong presumption that the attorney’s performance fell within the wide range of reasonable professional assistance, Whitlow, ¶ 15, because there are “countless ways to provide reasonable assistance in any given case.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. ¶12 Second, the defendant must show that his attorney’s deficient performance prejudiced the defense. Whitlow, ¶ 10. This requires a showing of a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. ¶13 The record as a whole, including the post-trial hearing regarding the plea negotiations, sufficiently demonstrates that Whitegrass’s attorney was not ineffective in 6 failing to request a continuance in order to ask the State to re-engage in plea negotiations. Whitegrass’s arguments to the contrary are largely speculative. Whitegrass speculates that the District Court would have stopped the trial to allow the defense to ask the State about a plea agreement. He speculates that the State would agree to plea negotiations after its case had gotten stronger. He speculates that the State would have made a plea offer that Whitegrass would have accepted, after he had already rejected an offer of ten years with five suspended. ¶14 In addition, the evidence of the condom found in the yard was not likely to be admitted because of the Rape Shield law.1 Furthermore, the text messages on Whitegrass’s cell phone were actually favorable to the defense (indicating that the victim had agreed to meet and have sex and to bring drugs). ¶15 Whitegrass has only speculated that a continuance would be granted during trial and that it would result in a new plea offer that he would have accepted. This is insufficient to demonstrate ineffective assistance of counsel. We conclude that Whitegrass has failed to demonstrate that trial counsel’s performance fell outside the “wide range of reasonable professional assistance” recognized by the law. ¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, this case presents a question controlled by settled law or by the clear application of applicable standards of review. 1 The Montana Rape Shield Law generally precludes, in prosecutions of sexual offenses, the admission of evidence concerning the sexual conduct of the victim except evidence of past conduct with the defendant. Section 45-5-511(2), MCA. 7 ¶17 Affirmed. /S/ MIKE McGRATH We Concur: /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ LAURIE McKINNON	December 27, 2016
81756bd7-b1ac-45f8-80b6-c23248697509	ROLLINS v BLAIR	N/A	88-411	Montana	Montana Supreme Court	NO. 88-411 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 CONNIE S. ROLLINS, Plaintiff and Appellant, -vs- SYLVIA M. BLAIR, d/b/a CHEERLEADERS POI4 POM CLINIC; NCA INVESTMENTS, INC., f/k/a NATIONAL CHEERLEADERS ASSOCIATION; and FERGUS COUNTY HIGH SCHOOL; SCHOOL DISTRICT # I , Defendants and Respondents. APPEAL FROM: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Joseph Gary, Judqe presidinq. COTJNSEL OF RECORD: For Appellant: Jack E. Sands, Rillinqs, Montana For Respondent: Don M. Hayes; Berg, Stokes, Tollefsen & Hayes, Bozeman, Montana (Blair) Robert J. Emmons; Emmons & Coder, Great Falls, Montana (Fergus County High) Charles R. Cashmore; Crowlev T~aw Firm, ~illings, d L Montana (NCA) C L L ' . J . . . -. - i - 4 I ' Submitted on Rriefs: Nov. I?, 1988 Decided: January 10, 1989 - ED SMITH Cl.erk Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. From a decision in the District Court of the Eighteenth Judicial District, Gallatin County, Connie Rollins appeals the summary judgment in favor of Fergus County High School, District No. 1 (Fergus) and the jury verdict for defendants, NCA Investments and Sylvia Blair, for injuries sustained while attending a privately-sponsored summer cheerleading clinic at Montana State University in Bozeman, Montana. The issues on appeal are: 1. Whether the District Court properly granted the motion of Fergus County High School, District No. 1, for summary judgment. 2. Whether the District Court's refusal of plaintiff's proposed instructions was proper. Connie Rollins was a varsity cheerleader for Ferqus County High School during the summer of 1985 when her cheer- leading squad attended a cheerleading camp. On the eveninq of July 15, 1985, she was practicing the "home cheer" with the other cheerleaders from the Fergus squad during a free period before the camp's evening activities. The "home cheer" involves the building of a human pyramid formation. This is a cheer that the girls from Fergus practiced for over two months prior to the camp and had also demonstrated during athletic activities in years past. The pyramid was not a formation that they had learned at the cheerleading camp. While practicing the pyramid, Rollins fell from an off-the-ground position, injuring the lumbo-sacral area of her spine. At the time, she did not feel any pain and con- tinued with the night's cheerleading activities. It was not until the next day that the injury was too severe to continue at the camp. Rollins was familiar with the "home cheer" and had been practicing the cheer with the other cheerleaders that summer. She was also aware that injury could occur from an off-the-ground position. She had injured an ankle in a fall from the pyramid prior to the cheerleading camp. Another cheerleader had broken her ankl-e also from a fall. Rollins sued the school district as the party responsi- ble for its students during school, during extracurricular activities and as principal of its agent, LaVonne Simonfy, the cheerleading advisor, for negligent supervision. Plain- tiff also sued NCA Investments, a private entity, and the sponsor of the cheerleading camp, Sylvia M. Blair, for negli- gence. The District Court granted summary judgment in favor of Fergus, finding that the school district had no active part in the summer cheerleading camp with the exception of providing a bus for transportation. At trial, the jury found that the remaining defendants had not acted negligently. Rollins seeks a reversal of both the summary judgment and the jury verdict. The first issue is whether the District Court erred in granting summary judgment in favor of Fergus. Appellant makes two assertions. Appellant first contends that Fergus played an active role in sending the cheerleaders to the Bozeman camp. Second, Fergus sent LaVonne Simonfy to the camp as an advisor to the girls and is liable for Simonfy's negligence for improper supervision. Appellant urges that we allow these issues to be addressed at a jury trial-. We have made it clear that: The standard of review is whether the District Court properly held there is no genuine issue of material fact and therefore the moving party is entitled to judgment as a matter of law. Rule 56 ( c ) , M.R.Civ.P. Sevalstad v. Glaus (Mont. 1987), 737 P.2d. 1147, 1148, 44 St.Rep. 930, 932; Pipinich v. Rattershell (Mont. 1988), 759 P.2d 148, 45 St.Rep. 1237. The standard of review set for- ward by this Court was established in Reagan v. Union Oil Company of California (1984), 208 Mont. 1, 6, 675 P.2d 953, 956. The standard is essentially the same that is used by the district court in reviewing the evidence under Rule 56, M.R.Civ.P., which is that sumrnarv judgment is to he granted where there is no genuine issue as to material fact. We see no genuine issue here. We uphold the District Court's summary judgment findinq and declare that Fergus was outside the scope of requisite care necessary to find it liable. The threshold requirement for holding Fergus liable for appell-ant's injuries is to find that Fergus had a duty to appellant. It is an elementary principle of law that before a claim for relief can he made against a defendant for negligence, the existence of a duty by the defendant to the plaintiff must be shown, along with the breach of the duty and a re- sulting injury. Roy v. Neibauer (Mont. 1981), 623 P.2d 555, 556, 38 St.Rep. 173, 174; Jackson v. William Dingwall Co. (19651, 145 Mont. 127, 399 P.2d 236; Kakos v. Byrum (1930), 88 Mont. 309, 3 9 2 P. 909. Appellant asserts that Fergus owed a duty because of its active participation in the events leading up to the injury at the camp. For example, the cheerleaders were selected by the students and faculty of Fergus. Money was raised for the camp and deposited in the school district accounts. The cheerleaders also learned of the camp through literature sent by S y l v i a Rlair and NCA to the school. On the motion for summary judgment, Fergus showed that it merely provided a bus for the girls1 transportation. The funds which were raised to send the cheerleaders to the camp were private funds raised by the girls themselves. To hold the school district liable for injuries to a cheerleader simply because she was chosen by other students of the school is insufficient to find a duty. Moreover, posters advertis- ing the camp provided by Rlair is also insufficient to find that Fergus owed a duty to Rollins. The cheerleading camp was run by private parties independent of the school district. It would be improper to hold that Fergus had a duty of super- vision to Rollins for an extracurricular activity during the summer months which was governed by independent parties. New York is one of the few states to have addressed the issue of a school's duty to students involved in extracurric- ular activities. In Rubtinchinsky v. State University of New York (1965), 46 Misc.2d 679, 260 N.Y.S.2d 256, a college freshman was injured while participating an in intramural game of "push ball" with knowledge that it was a contact sport. The New York court held that a school does not owe a duty to students involved in extracurricular activities. Fergus was in no way involved in the cheerleading camp with the exception of providing a bus for the cheerleaders. A proper nexus has not been established to find that Fergus had a duty. Appellant contends that Fergus is liable to Rollins through its agent, LaVonne Simonfy. However, Simonfyls participation was too limited to owe a duty as a supervisor and was not Fergusls agent. She was not under contract with the school district during the summer months and when she attended the camp. She used her own funds to attend the camp rather than accept school funds to attend. Her attendance at the camp was personal and not as an employee of Fergus. "Under the doctrine of respondeat superior an employer is liable for the acts of his employee only if the employee is acting within the scope of his employment." Haker v. South- western Railway Co. (1978), 176 Mont. 364, 372, 578 P.2d 724, 728; Hoffman v. Roehl (1921), 61 Mont. 290, 203 P. 349. As the cheerleaders' advisor, Simonfy played a limited role in molding the cheerleaders. She had final say as to the girls' cheers and critiqued their outfits but did not participate in the creation or development of the cheers. Appellant Rollins testified that Simonfy was not experienced in cheerleading. Simonfy attended the camp to prevent bickering among the cheerleaders, a reoccurring problem from the previous year. Furthermore, she was not in attendance at the meetings for advisors at the camp, nor was she present when appellant was injured. Fergus was under no duty to Rollins through Simonfy. Simonfy was not an agent of Fergus. The second issue to be addressed by this Court is whether the District Court erred in refusing two of appel- lant's proposed instructions. During the course of the trial, Sylvia Blair and representatives of NCA Investments testified that they took correct preventative measures in running the cheerleading camp. Specifically, NCA's employees testified that they held a meeting for all the advisors at the beginning of the camp which admonished them of safety proceedings, such as suggesting the use of spotters. Jeff Miller, the head instructor at the camp, stated they did not teach the pyramid formation and did not suggest that they practice the cheer. On cross-examination of the appellant, the questions related to the experience of the appellant and the other cheerleaders on her squad and the role that Simonfy played at the camp. Appellant regarded the examination of EICA's wit- nesses and cross-examination of appellant as "blame- shiftingw--that is, the remaining defendants state that they took all necessary precautions, implicating Fergus and Simonfy as the liable parties, who had been dismissed from the case. During the testimony, appellant did not object to the line of questioning but instead requested special instruc- tions to admonish the jury that the defendants could not shift the blame for liability to anyone not a party to the action. The judge agreed tha.t there would be such instructions. Two of appellant's proposed instructions referring to "blame-shifting" were denied by the judge. The appellant asserts that instructions admitted by the court were not sufficient . The refused proposed instructions are as follows. [Proposed instruction 1 4 1 More than one person may be liable for causing an injury. A defendant may not avoid liability by claiming that some other person whether or not named as a defen- dant in this action helped caused Csicl the injury. Fergus County High School--through LaVonne Simonfy--was originally liste6 as a defendant in this action, but has been found not liable as a matter of law. Therefore, you may not consider the actions or inactions of Ms. Simonfy or Fergus County High School as ha~ring helped cause plaintiff's injury. [Proposed instruction 24 1 You are instructed that, as a matter of law, 1,aVonne Simonfy and Fergus County High School had no legal obligation to nor any supervisory responsibility for Connie S. Rollins, the Plaintiff, while she attended the Cheerleading Clinic. Therefore you may not consider the actions or inactions of LaVonne Simonfy or Fergus County High School as having helped cause Plaintiff's in-juries. The District Court instead adopted proposed Instruction 14a (Instruction 14) : More than one person may be liable for causing an injury. A defendant may not avoid liability by claiming that some other person whether or not named as a defendant in this action helped caused [sic] the injury. Appellant claims that the single instruction is inadequate to inform the iury of the dangers of shifting the blame. We disagree. It is not reversible error for a Dis- trict Court to refuse an offered in- struction unless such refusal affects the substantial rights of the party proposing the instruction thereby preju- dicing him. . . . A party is not preju- diced by the failure to give an offered instruction where the subject matter is adequately covered by other instructions submitted by the court to the jury. Payne v. Sorenson (19791, 183 Mont. 323, 327-328, 599 P.2d 362, 365; Kuchan v. Harvey (1978), 179 Mont. 7, 585 p . 2 6 1 1298; Holland Furnace Co. v. Rounds (1961), 139 Mont. 75, 360 We hold that the instruction adopted by the court was adequate in directing the jury that the defendants could not place the blame for liability on Fergus or Simonfy. Instruc- tion 14 clearly stated that the only parties that could be held liable were those named in the suit at the time of trial. If the instructions that were proposed by appellant had been adopted by the court, the effect would have been preiudiciai to respond.ents. In stating that Fergus had been dismissed from the action, the jury could have assumed that the court on summary judgment had not dismissed the remaining defendants because they were responsible for appellant's in juries. The substantial rights of appellant were not prejudiced. Furthermore, the instructions in their entirety were adequate to instruct the jury on the causes of action. It was obvious that the other instructions stated that NCA and Blair were the only defend-ants in the case and if liability was to be found it would be with one of the named defendants. For example, the first instruction stated that in this action the plaintiff was Rollins and the defendants were NCA and Blair. The very same instruction gave no indication that the defendants were trying to "pass the buck" because it stated that the defendants were denying liability and if anyone was at fault it was Rollins herself. [Ilnstructions must be considered in their entirety, and to determine whether instructions were properly given or refused this Court will read them in connection with other instructions given and consider them in the light of the evidence introduced. Fox v. Fifth West, Inc. (1969), 153 Mont. 95, 101, 454 ~ . 2 d 612, 615; Brown v. North American Mfg. Co. (19781, 176 Mont. 98, 114, 576 P.2d 711, 721. We hold that the instructions given to the jury were sufficient. We find no reversible error on the part of the District Court. Affirmed. We concur: (i a;; Justices L-	January 10, 1989
4dc870d2-0148-44e6-8bc2-0fa233653742	BOYER v ETTELMAN	N/A	88-389	Montana	Montana Supreme Court	NO. 88-389 IN THE SUPREME COIJRT OF THE STATE OF MONTANA 1989 RRUNO ROYER, Plaintiff and Appellant, -vs- JOHN RICHARD ETTELMAN, Defendant and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding. COUNSEL OF RECORD:, For Appellant: Dane C. Schofield; Peterson, Schofield & Leckie, Billings, Montana For Respondent: William J. Gregoire; Smith, Walsh, Clarke & Gregoire, Great Falls, Montana Sherman 17. Lohn; Garlingtcn, Lohn & Robinson, Missoula, Montana Submitted on Briefs: Dec. 2, 1 9 8 8 Decided: January 6, 1 9 8 9 ED SMITH Clerk Mr. Justice R. C. McDonough delivered the Opinion of the Court. This appeal concerns an alleged accord and satisfaction in settlement of a personal injury claim. The District Court of the Thirteenth Judicial District, Yellowstone C o u n t ! ! , sat as finder of fact and held that the parties reached an accord and that appellant's cashing of respondent's check constituted a satisfaction. We affirm. Appellant Rruno Royer presents the following issues for review: (1) Whether the Court erred in concluding that the draft itself operated as a full and final release? (2) Whether the Court erred in concluding that an accord and satisfaction resulted from the conduct between Boyer and Hartford? (3) Whether the findings of the Court are supported by substantial evidence? Respondent, Ettleman, and his insurer, Hartford Accident and Indemnity, (Hartford) , complain that the issues should be changed to reflect the lower court's focus on determining the existence of an accord and satisfaction. We agree and determine this appeal by reviewing Bruno Bover's issue (2): Whether the District Court erred in concluding an accord and satisfaction resulted from the parties' conduct? The District Court's essential conclusion on accord and satisfaction reads: That the draft was tendered to the plaintiff under such circumstances that he is bound to know that it was tendered in full settlement of the claim resulting in an accord and satisfaction between the parties and a discharqe of the plaintiff's whole claim. The following facts are relevant to reviewing this conclusion: Ettleman's car collided with a vehicle being driven by Rose Gonzales. Royer, Gonzales, and several other passengers in Gonzales's car were injured. Hartford admitted liability for the claims against Ettleman. Ettleman's insurance provided $55,000 in coverage. Hartford's employee Charles Gailey attempted to divide the $55,000 among the injured parties. Boyer ' s father, Melvin Boyer, negotiated with Gailey for Bover's share of the insurance. Attorneys representing other claimants also negotiated with Gailey. Melvin Royer demanded $35,000 for his son's claim. Gailey rejected the offer. Gailey settled with most of the other claimants, and informed Melvin Boyer that only $10,000 of the $55,000 in coverage remained. Gailey proposed that Bruno Boyer accept the $10,000 as a full settlement. Melvin and Bruno Boyer met with Gailey to discuss the offer. Melvin Boyer instructed his son to reject Gailey's proposal. Gailey told Bruno Boyer that as an adult, he could settle the claim without his father's authorization. Gailey then gave him a release instrument and a check for $10,000 to take home. Bruno Boyer accepted and negotiated the check but never signed the release. At trial Bruno Boyer testified that Gailey lead him to believe that the check was for coverage of his medical bills only, and that even if he accepted and cashed the check, he could still pursue a claim for his other damages. He relies principally on Gailey's statement during the meeting that if $10,000 were not enough, Boyer would have to sue. According to Boyer, this statement reasonably lead him to believe he could cash the check, and sue for the rest of his damages. Boyer also claims that the following facts and contentions support his claim: Gailey never communicated the limits of the policy to Royers; Gailey told Boyers that either a judge would determine each claimant's share, or a meeting would be held and the claimants could attempt to determine shares; Gailey settled with other claimants prior to informing Royers that no meeting would occur; Boyers' demand for a $35,000 settlement separated medical damages from other damages; at the time of the settlement meeting, Rruno Royer's medical bills totaled $6,248, and Boyers told Gailey that at least $2,000 would be needed in the future; Gailey told Bovers at the meeting that the !$10,000 should be used to pav medical bills; Gailey wrote to Bruno Rover shortly after the settlement meeting and stated that medical bills should be paid from the $10,000. Gailey testified that both Melvin and Bruno Boyer appeared to understand that the $10,000 could be retained by Rruno Boyer only if he aqreed to accept the money in full settlement of the claim. He also testified that he told Bruno Boyer that if he wanted to keep the money, he must sign the release and send it back to Hartford. Gailey admitted telling Rruno and Melvin Boyer that they would have to sue to collect more than $10,000. However, Gailey claims Boyer mischaracterizes his statement. According to Gailey, he told Royers if they refused the settlement offer, he would tender the remainder of the coverage, that is, $10,000, to the District Court, and they would have to sue to collect on their cl-aim. Gailey testified that he never lead Royers to b e l i e v e t h a t he tendered t h e $10,000 f o r medical damages only. Hartford p o i n t s o u t t h a t beneath t h e names of t h e i n s u r e r and t h e claimant on t h e f r o n t of t h e check i n r e g u l a r p r i n t Hartford typed i n t h e words " I n F u l l Settlement of All- Claims". Harftord a l s o contends t h a t t h e following findings of t h e lower c o u r t a r e supported by s u b s t a n t i a l evidence and r e f u t e Boyer's contentions: 1 9 . That i n August o r September, 1982, Gailey contacted Boyer and h i s f a t h e r . and informed them t h a t t h e r e was Ten Thousand and no/100 Dollars ($10,000) of t h e policy proceeds . remaining ' with which t o s e t t l e Boyer's case. 20. That Bruno and Me1 Boyer t r a v e l e d t o Great F a l l s , Montana t o pick up t h e check. A f r i e n d of t h e i r s , Gerald Davidson, accompanied them on t h e t r i p . 2 1 . That when Bruno and Me1 Boyer met with Gaily, Me1 t r i e d t o g e t Gailey t o increase h i s $10,000 o f f e r of settlement, which Gailey refused t o do. Me1 Boyer then t o l d Gailey t h a t he would not s i g n anything. 2 2 . That Gailey then o f f e r e d a $10,000 d r a f t and a r e l e a s e t o Bruno Boyer and t o l d him he could s i g n t h e r e l e a s e s i n c e he was now 18 years o l d . 23. That Bruno Boyer took t h e $10,000 d r a f t and t h e r e l e a s e from Gailey, saying he wanted t o think about it, and returned t o B i l l i n g s , Montana. 2 4 . That Gailey t o l d Bruno Boyer i f he wanted t o accept t h e $10,000 t o sign t h e r e l e a s e and r e t u r n it t o him. 25. That Bruno Royer cashed t h e d r a f t , p u t t i n g $4,000.00 i n h i s savings account and giving $6,000 t o h i s f a t h e r . 26. That Bruno Boyer believed he threw t h e r e l e a s e away, but l a t e r learned h i s f a t h e r was i n possession of t h e r e l e a s e form. 27. That Gailey, subsequent t o giving t h e d r a f t and r e l e a s e form t o Boyer, s e n t a l e t t e r and a s e p a r a t e r e l e a s e form t o Boyer, asking t h a t he review and execute t h e same. This Boyer refused t o do. 28. That Gailey would, as a standard course of business, when a claimant was not sure whether they wanted to accept a check as full and final payment, send both the draft and a release with the claimant, with the instructions that if thev accepted the draft thev were to sign and return the release. 29. That the Royers knew that the $10,000.00 check was being tendered as full and final settlement of Bruno's claims. Me1 Boyer knew this at least as of the September 8, 1982 meeting with Gailey in Great Falls, and Bruno Boyer learned this from his father at least by the time he cashed the draft, if not before. He knew he was to sign and return the release to Gailey if he cashed the check. 30. The Boyers have retained the $10,000.00 they received and have not refunded or offered to refund the money or any part thereof to the Hartford. 31. The Boyers instituted this action a full twenty seven months after cashing the $10,000 draft . The resolution of this case in the lower court depended largely on choosing between conflicting evidence. Boyer argues for this Court to reweigh the conflicting evidence. Rule 52 (a) , M.R.Civ.P., constricts our review of findings oF fact, and this Court affirms if substantial evidence supports the lower court ' s findings . Price Bld. Service Inc. v. Christiansen (Mont. 1985), 697 P.2d 1344, 1347, 42 St.Rep. Generally, a disputed, unliquidated obligation may he extinquished where the obligated party offers to exchange an amount different from or less than the obligation in full settlement of the obligation. Section 28-1-1401, MCA. And the party owed the obligation agrees to accept and does accept the amount offered in full settlement of the obligation. Section 28-1-1402, MCA. See also Sawyer 7 7 . Somers Lumber Co. (1929), 86 Mont. 169, 282 P. 852. he intent of the parties generally controls the issue. Rarbarich v. Chicago etc. Ry. Co. (1932), 92 Mont. 1, 30, 9 P.2d 797, 799. This case hinges on whether Royer's acceptance and negotiation of the check from Hartford occurred under such circumstances that Boyer was bound "to know that the intention was to make the payment in full settlement of the claim . . . " Sawyer, 2 8 2 P. at 854. Put differently, in the case of a disputed and unliquidated obligation, the finder of fact properly concludes an accord and satisfaction occurred where the obligated party makes: an offer in full satisfaction of the obligation, accompanied by such acts and declarations as amount to a condition that if it is accepted, it is to be in full satisfaction, and the condition must be such that the party to whom the offer is made is bound to understand that if he accepts it, he does so subject to the conditions imposed. 1 Arn.Jur.2d Accord & Satisfaction 5 1 (1962). The District Court findings thoroughly set out the circumstances surrounding acceptance of the check, Substantial evidence supports the findings. For example, prior to the meeting, evidence demonstrated that both Boyers knew that Gailey wanted to settle the claim within the remaining amount of coverage. Bruno Boyer first denied that he knew only $10,000 remained, and then admitted he may have communicated the policy limits to a friend, Gerald Davidson, prior to the meeting. Davidson testified that Bruno had discussed the $10,000 policy limit with him prior to the settlement meeting. Bruno Boyer also claimed that he understood at the settlement meeting that the $10,000 would be a medical damages settlement only. However, he also testified he took the release home after G a i l e . 7 told him tn sign and return the release, and that he knew that the release purported a full and final settlement. Bruno also witnessed the argument at the settlement meeting between Melvin Boyer and Gailey over the adequacy of $10,000 as a complete settlement. Moreover, it is undisputed that at the time of the settlement meeting, medical bills totaled under $10,000. Boyer denied reading the face of the check except that he read his name, noted Gailey's signature, and the figure recited in payment. He testified that the full settlement notation escaped his attention. Nevertheless, the presence of the notation provides evidence for the District Court's conclusion. These facts and circumstances, when considered with Gailev's version of events, constitute sufficient evidence to sustain the District Court's decision. This Court "will not overturn the holdings or findings of a trial court simply because the evidence Furnishes reasonable grounds for difFerent conclusions." Price, 6 9 l P.?d at 1397. Thus, we affirm.	January 6, 1989
c629aeee-a332-438e-8ca8-cd90230d9052	STATE v HEMBD	N/A	88-353	Montana	Montana Supreme Court	NO. 88-353 IN THE SUPREME COURT OF THE FTATF OF MONTANA 1989 STATE OF MONTANA, Plaintiff and Appellant, -vs- JOHN PATRICK HEMBD, Defendant and Respondent APPEAL FROM: District Court of the First Judicial District, In and for the County of Lewis and Clark, The Honorable Thomas C. Honzel, Judge Presiding. COUNSEL OF RECORD: For Appellant: Hon. Marc Racicot, Attorney General, Helena, Montana s l a y R. Smith, Ass't Attorney General, Helena p- i n :Mike + a McGrath, County Attorney, Helena, Montana c3 / / F6r Respondent : P ' L . 2 - -- J .J.,awrence A. Murphy; Harrison, Yeshe & Murphy, Helena, MT L- d Submitted on Briefs: December 2, 3988 Decided : January 12, 1989 -- ED SMITH Clerk Mr. Justice L. . Gulhrandson delivered the Opinion of the Court. The State of Montana appeals the order of the District Court, First Judicial District, TJewis and Clark County, Montana, filed on Mav 3 3 , 1988, granting defendant's motion to suppress evidence seized from the trunk of his vehicle pursuant to a search warrant. We reverse the order of the District Court. John Patrick Hemhd was arrested in the early morning hours of March 16, 1988, following a phone call to the police department reporting that two persons were being held bv a third person and were being forced to drive around in his car. The report stated that the vehicle was en route to a location in downtown Helena. Upon arriving at that location, officers observed the vehicle described in the report. The officers stopped the vehicle and the two occupants were taken into custody. At that time the defendant walked up to the vehicle and, after claiming it was his vehicle, was placed under arrest. Following the arrest, the Helena City Police Department i-mmediately impounded Hembd's vehicle. He was subsequently charged by complaint with the felony offense of intimidation. Later in the morning of March 16, 1988, Police Captain Jeff Bryson interviewed the two alleged victims. He observed the police reports filed by the arresting officers and presented the facts to the Lewis and Clark County Attorney's Office. The County Attorney's Office prepared an application for a search warrant, a search warrant, and a complaint charging Hembd with felony intimidation. The application cover sheet stated that the offense of intimidation had been committed, that Officer Bryson had good reason to believe that evidence and/or fruits of a crime, more particularly described as two semi-automatic handguns, were present in the defendant's vehicle. The application further stated one of the handguns was located in the interior of the vehicle and the second weapon was located in the trunk of the automobile. The application stated the premises to be searched was a 1978 Buick Electra, silver in color, hearing Montana license plate number 3-202808, registered to John Patrick Hembd, and was located at the A1 Rose impound lot at Chestnut and National Streets. Facts establishing grounds for probable cause for issuing the search warrant were attached in an affidavit. and stated as follows: On or about the 15th and 16th days of March, 1988, two gentlemen, Jeff Hafer and John Ellingson, had a flat tire on their vehicle in the Helena Valley in the area of North Montana Avenue and Cedar Street. These two individuals were able to obtain a ride into town from a John Patrick Hembd to qet a new tire. Mr. Hembd was driving a 1978 Ruick Electra, silver in color, bearing Montana license no. 3-202808. Durinq the course of the evening the trio decided to stop in a series of bars. Mr. Hembd was particularlv interested in looking +or a female bv the name nee Rowe. Mr. Hembd advised Hafer and Ellingson that if he saw Ms. Rowe he was going to kill her, and showed them a small semi-automatic handgun. During the course of the evening Mr. Hembd pointed the gun at both Mr. Hafer and Mr. Ellingson, and maintained a dangerous and threateninq demeanor throughout. Both Hafer and Ellingson felt they had little choice in following Hembd's orders. Also, during the course of the evening, Mr. Hembd told Hafer and Ellingson that he had automatic weapons in the trunk of his vehicle. At one point, while the vehicle was parked in the City of Helena parking garage on the corner of Park and Sixth Avenues, Hafer and Ellingson looked in a gym bag located in the trunk of the vehicle, and saw a second semi-automatic handqun. During the course of the evening, Ellingson [Hafer] was forced to go into the Mini-Mart to obtain a hanger and purchase a carton of chocolate milk for Hembd. When Mr. Ellingson [Hafer] went into the Mini-Mart, Hembd had a handgun pointed at Mr. Hafer [ElIingson] . While in the store, Ellingson [Hafer] persuaded the clerk at the store to notify the police of their predicament and to advise them that they would be going to the Park Plaza when they left the Mini-Mart. Hembd was subsequently arrested by Helena Police officers in the aforementioned parking garage near the Park Plaza. He was searched but neither handgun was located on his person. It is the belief of Mr. Hafer and Mr. El-lingson, as well as your affiant, that a search of Mr. Hembd's vehicle is necessary to locate both handguns mentioned above. The search warrant itself stated that the items sought were "two/ or more, semi-automatic handguns, one believed to be located in the interior of the vehicle and the second one is believed to be in the trunk of the automobile." (Emphasis added. ) The justice of the peace, after asking Officer Rrvson if the facts and assertions contained in the application for the warrant were true and accurate, issued the search warrant as prepared by the County Attorney's Office. Officer Rryson and two other Helena police officers, Troy McGee, and Bryan Costigan, executed the search warrant on the vehicle. While neither McGee nor Costigan had viewed the warrant, thev were told by Officer Bryson that the77 were looking for guns. The search was commenced in the trunk of the vehicle and the first item inspected. was a small black bag, referred to as a shaving kit. Inside the black bag the officers found a white powdery substance. Proceeding with the search, the ofqicers searched a larger dark bag and found three handguns. The subsequent search of the other bags and containers in the trunk produced the following items: ammunition, plastic bags containing an unknown powderv substance, empty glass vials, a scale commonlv associated with illegal drug activity, lock picking devices, electronic radio scanning equipment, and radio call guides listing local law enforcement frequencies. The officers then proceeded to search the interior of the vehicle where a semi-automatic pistol was found on the hack seat of the car underneath some clothing. On March 24, 1988, the defendant was charged by information with the following counts: (1) felony intimidation, in violation of S 45-5-203 (1) (a), MCA; (2) felony theft, in violation of 5 45-6-301 (1) (c) , MCA; (3) misdemeanor possession of burglary tools, in violation of $ 45-6-205 (I), MCA; and (4) felony criminal. possession of dangerous drugs with intent to sell, in violation of S 45-9-103(1), ( 3 ) , MCA. The defendant filed a motion to suppress on April 14, 1988, seeking suppression of all evidence seized from the trunk of the vehicle. After a hearing the motion was granted by memorandum and order filed on May 23, 1988. The State appeals the suppression order and presents the following issues for review: 1. Whether probable cause existed for issuance of the March 16, 1988, search warrant authorizing a search of defendant's vehicle trunk. 2. Whether the plain view doctrine authorized the March 16, 1988, seizure of incriminating items other than handguns from the defendant's vehicle trunk. 3. Whether suppression of incriminating evidence seized from the defendant's vehicle trunk in reliance on the validity of the March 16, 1988, search warrant is appropriate under the exclusionarv rule. I. The State initially raises the question of whether the District Court erred in its finding that sufficient nexus did not exist for probable cause to search the trunk of the defendant's vehicle. The District Court based its holding o f a lack of probable cause on the finding that the victims gave no indication Hembd intended to use the gun in the trunk to intimidate them. Also, the gun in the trunk was not alleged to constitute any manner of contraband. For these reasons, the District Court granted. the defendant's motion to suppress all the evidence seized from the defendant' s vehicle trunk. A person's right to he free from unreasonable and/or warrantless searches and seizures is based upon the Fourth Amendment to the United States Constitution and Article 11, sec. 11 of the Montana Constitution. The Montana Constitution states: [Mlo warrant to search any place, or seize any person or thing shall issue without describing the place to be searched or the person or thing to he seized., or without probable cause, supported by oath or affirmation reduced to writing. The requirements for issuing a search warrant call for an impartial magistrate to determine the existence of or lack of probable cause from the ''four corners" of the search warrant application. State v. O'Neill (1984), 208 Mont. 386, 393, 679 P.2d 760, 763-764, citing State v. Isom (1982), 196 Mont. 330, 641 P.2d 417; Thompson v. Onstad (1979), 182 Mont. 119, 594 P.2d 1137. The magistrate and the reviewing court shall interpret and examine the affidavit supporting the application in a common sense, realistic fashion, avoiding hypertechnical interpretations. The preference is to encourage the police to seek warrants and in marginal cases the re~riewing court should keep this preference for warrants in mind. O'Neill, 679 P.2d at 764, citing United States 1 7 . -- Ventresca (1965), 380 U.S. 102, 108-109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689. The reviewing court should also remember the standard for issuing the search warrant is the existence of "a probability, not a prima facie showing of criminal activity." O'Neill, 679 P.2d at 764, citing Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct 223, 13 L.Ed.2d 142. That probability will be determined using a totality of the circumstances analysis, based upon the circumstances set forth in the affidavit. OINeill, 679 P.2d at 764, citing Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. The reviewing court's examination is limited to whether the magistrate had a substantial basis for concluding probable cause existed. O'Neill, 679 P.2d at 764, citing Gates, 462 U . S . at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. Our examination of the affidavit in this case leads us to find a substantial basis existed in the affidavit to allow the magistrate to find probable cause to issue the warrant. The defendant was charged with felony intimidation of Jeff Hafer and John Ellingson. Officer Rrvson's affidavit identifies how the two individuals came under Hembd's control, the vehicle in which they drove him around, the fact Hembd was looking for one Dee Rowe and would kill her when he found her, the fact Hembd pointed a semi-automatic pistol at each of the individuals, and had exhibited a danqerous and threateninq manner. The affidavit also notes that Hembd told the individuals he had automatic weapons in the trunk and at one point, while the vehicle was parked the individuals looked in a gym hag in the trunk and saw a second semi-automatic handgun. Upon Hembd ' s arrest neither handgun was found on his person. From the four corners of this affidavit, the justice of the peace was asked to find probable cause to permit a search o f the ~~ehicle for two or more handguns. The "or more" portion was not included in the application for the search warrant, hut was present in the actual search warrant. The defendant contends, and the District Court agreed, that a nexus cannot be developed between the gun(s) locat-ed in the trunk and the crime of felony intimidation for which the gun (s) constituted evidence. Subsection (1) of the intimidation statute 45-5-203, MCA, contains the elements necessary to constitute intimidation. (1) A person commits the offense of intimidation when, with the purpose to cause another to perform or to omit the performance of any act, he communicates to another, under circumstances which reasonably tend to produce a fear that it will be carried out, a threat to perform without. lawful authoritv any of the following acts: (a) inflict physical harm on the person threatened or any other person; (b) subject any person to physical confinement or restraint; or (c) commit any felony. Taking notice of this Court's prior holding in O'Neill that the evidence collected should not be viewed in terms of "library analysis by scholars," but in terms of those "versed in the field of law enforcement," we find sufficient information existed to establish probable cause to search the trunk. O'Neill, 679 P.2d at 764, citing United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621. A fair probability existed that a search of the vehicle would uncover the gun with which the defendant intimidated the individuals, and automatic weapons in the trunk with which the individuals believed he would harm them and ki.11 Dee Rowe . Analyzing the affidavit in light of 5 45-5-203, MCA, we find the defendant communicated to the indj.vidual~ a threat to kill Dee Rowe. Section 45-5-203(1), MCA. In brandishing the pistol in the car and communicating the presence of automatic weapons in the trunk, the defendant produced a fear in the individuals that he intended to and had the ability to kill Dee Rowe. Section 45-5-203 ( 1 ) (a), MCA. Evidence of the fear created is deduced from the fact that the individuals were sufficientlv fearful for their safety and that of Dee Rowe, that Jeff Hafer requested the clerk at the Mini-Mart to call the police. The statements by the individuals that the77 had seen a semi-automatic handgun in the trunk established sufficient probability to authorize a search of the trunk for that handgun and other weapons which the defendant claimed to have at his disposal. Defendant contends that the affidavit contains inaccuracies which render reliance upon it void as a matter of law. These inaccuracies were that the defendant did not maintain a dangerous and threatening demeanor throughout the evening, and whether or not the indi~riduals were actually ordered to drive the defendant to various places. We initially note that while these statements were not totally accurate, thev are not untrue. The threat to kill Dee Rowe when he found her constitutes a dangerous and threatening action on the defendant's part. That the individuals did not feel themselves in danger until after they observed that Hembd had seen them looking in the trunk does not alleviate the dangerous and threatening action exhibited throughout the evening toward Dee Rowe. Further, both individuals' statements show they felt compelled to drive Hembd back to the Park Plaza from the Mini-Mart where they had obtained the coat hanger he needed to break into the Park Plaza. They had both observed him pointing a handgun at the other while the17 were outside the Mini-Mart. We also note that the affidavit was prepared by the County Attorney based upon Officer Rrvson's recollection of the individuals' statements and the arresting officers' reports. While we do not condone the presence of inaccuracies in search warrant applications, under these circumstances we do not find the cited inaccuracies defeat the application. Further, after excising the inaccurate portions of the statements, the affidavit still establishes sufficient probable cause to issue the search warrant. Franks v. Delaware (1977), 438 U.S. 154, 171-172, 98 S.Ct. 2674, 2684, 57 L.Ed.2d 667, 682. For the foregoing reasons we find the District Court erred in granting the motion to suppress. 11. Appellants second issue was not addressed by the District Court as the court had found a lack of probable cause to enter the trunk. As we have found the District Court erred in its decision, we feel some guidance is in order regarding the second issue. At the suppression hearing, the defendant contended that if probable cause was found to search the trunk, any other items found besides the gunfs) found in the gvm bag should be suppressed under the "plain view" doctrine. The defendant contends the search warrant would not permit the officers to search any bag or container other than the gym hag mentioned in the affidavit. Evidence seized from any other closed bag or container would not fall within the plain view doctrine. Defendant further contends that the officers did not find the drugs and burglary tools inadvertently. This Court has previously held that four requirements must be met to seize items which are not described in a warrant under the plain view doctrine. There must be a prior justification for the intrusion into the protected area. The articles must be in plain view. The incriminating nature of the items must he apparent. Finallv, the discovery of the articles must be inadvertent. State v. O'Neill (19841, 208 Mont. 386, 397, 679 P.2d 760, 766, citing Coolidge y r . Mew Hampshire (1971), 403 1 J . S . 443, 91 S.Ct. ?022, 39 L.Ed.2d 564. "The plain view doctrine authorizes seizure of illegal or evidentiary items visible to a police officer whose access to the object has some prior Fourth Amendment justification and who has probable cause to suspect that the item is connected with criminal activitv." Illinois v. Andreas (1983), 463 U.S. 765, 771, 103 S.Ct. 3319, 77 L.Ed.2d 1003, citing Texas v. Brown (1983), 460 U.S. 730, 738, and n. 4, 741-742 (plurality opinion); - id. at 746 (Powell, J., concurring in judgment); - id. at 748, 749-750 (Stevens, J., concurring in judgment) . Here the police officers were searching the vehicle under authority of a search warrant for two or more handguns. The warrant placed one of the handguns in the interior of the vehicle and one in the trunk. Having previously held that the warrant was properly issued, the officers access and search of the trunk was justified. The United States Supreme Court has held that a lawful search of fixed premises will extend "to the entire area in which the object of the search may be found . . . " United States v. Ross (1982), 456 U.S. 798, 820, 102 S.Ct. 2157, 2170, 72 L.Ed.2d 572, 591. "A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search." - Id. at 821. In the instant case the warrant authorized the search of the vehicle, particularly the interior and the trunk, for two or more handguns. In executing the warrant, the officers were justified in searching those areas of the vehicle and examining the contents of containers which might contain the object of the search. While lawfully engaged in executing the search warrant, the officers were justified in immediately seizing suspicious objects, such as contraband, stolen property or incriminatinq e~ridence. Texas v. Brown, supra, 460 U.S. at 739. The evidence seized here consisted of some white powdery substance, believed to be drugs, along with the a scale and plastic bags and vials normally associated with the distribution of drugs, and lock picking tools and communications equipment normallv associated with burglarv tools. It is a preferred practice to stop upon the initial discovery of such items in an impounded vehicle, and secure a search warrant which would allow a more extensive search of the vehicle. However, we find that the failure to do so in this instance does not justify suppression of the evj-dence seized as the containers searched were all capable of concealing guns, the object of the search. The defendant bases his contention of a lack of inadvertence upon the fact that Officer Bryson knew of the possible existence of drugs in the trunk from his interviews with the two victims. Further, the two officers who conducted the search admitted having read the arrest report circulated earlier that morning which mentioned the possible presence of drugs. The victims' statements referred to Hemhd's comments that he had a half-pound of "crank" and automatic weapons in the trunk and that he was known as Lock Picking John. The defendant claims the officers search for guns in the trunk was a fishing expedition to test the accuracy of these statements. He claims the oqficers knew that probable cause did not exist for a warrant to search for drugs or burglarv tools. Since the United States Supreme Court adopted inadvertence as a requirement for seizing evidence or contraband under the plain view doctrine, the courts have attempted to define what level of inadvertence is necessary. In United States v. Freeman (5th Cir. 1 9 8 2 ) , 685 F.2d 942, at 954, n. 7, the Fifth Circuit Court of Appeals stated: [I] nadvertence does not require the police to be totally dumbfounded or surprised by the discovery of the incriminating evidence; the fact that its presence may be "within the realm of foreseeable possibilities," . . . or even expected, does not destroy inadvertence if the police did not arrive specifically planning to look for the evidence. (Citations omitted. ) The Second Circuit later identified when the inadvertent discovery rule would apply. [Flor the inadvertent discovery rule to apply to the present case, it must appear that prior to the issuance of the warrant the police could reasonably and in good faith either have failed to recognize the existence of probable cause or believed that there was insufficient evidence of probable cause to search for the money. See United States v. Wright, 641 F.2d 602, 606-07 (8th Cir.1981) ; 2 W. LaFave, 5 4.11 at pp. 179-83. United States v. $10,000 in U.S. Currency (2nd Cir. 19861, 780 F.2d 213, 218. In the instant case we note that Officer Rryson was aware of the possible presence of drugs and other evidence; howe~~er, his evaluation, after consultation with the County Attorney, was that he did not have probable cause to seek a search warrant for those items. As the Second Circuj t stated: Once government agents conduct a search pursuant to a valid search warrant, their earlier suspicions do not make discoverv of weapons [drugs and burglary tools in this case1 actually found in plain view premeditated. Nor is the existence of probable cause, unrecognized by the police, sufficient to bar discoverv as not inadvertent. Such a purelv "objective" approach would exclude important evidence simply because the police "by oversight or acting from an abundance of caution or out of a misapprehension of what it takes to obtain a search warrant covering that evidence, failed to include that item in the warrant executed." 2 W. LaFave, S 4.11 at 181. $10,000 in U.S. Currency, '80 F.2d at 218. We agree with the position taken by the Second Circuit. The cautious actions of law enforcement officials in seeking to protect the validity of the warrant should not invalidate the inadvertent seizure of evidence or contraband where the officers conducting the search adhere to the intent contained in the search warrant. Having determined previouslv that the search warrant was issued with probable cause we find the exclusionary rule does not come into play and that we need not discuss whether the good Faith exception is a p p l i c a b ' e . The decision of the District Court is reversed and the case is remanded for further action in compliance with t We concur:	January 12, 1989
5ccbd0b6-3850-48bd-9389-df722fdc8267	REITER v REITER	N/A	89-125	Montana	Montana Supreme Court	NO. 89-125 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 ANNA G. REITER, plaintiff and Respondent, vs. EDWARD L. REITER, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth ~udicial ~istrict, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding. COUNSEL OF RECORD: For Appellant: Edward L. ~eiter, pro se, Billings, Montana For Respondent: Fred E. Work, Jr., ~illings, Montana Submitted on Briefs: September 21, 1989 Decided: January 4, 1990 Justice ~illiam E. Hunt, Sr., delivered the opinion of the Court. Anna G. Reiter, mother of defendant and appellant, filed an unlawful detainer action in Justice Court, ~illings owns ship, Yellowstone County, seeking to remove defendant, Edward L. ~eiter, from her property. The Justice Court ruled. in favor of Anna and ordered Edward to vacate the premises. Edward appealed to the ~hirteenth Judicial District Court, which also found in favor of Anna. Edward now appeals to this Court. We dismiss the appeal as frivolous. It is difficult to ascertain from Edward's rambling and incoherent brief exactly what issues he raises on appeal. It appears that his contentions are as follows: 1. Whether the District Court proceedings violated Edward's due process rights; and 2. Whether the ~istrict Court erred in finding that Edward was a tenant at will. plaintiff, Anna Reiter, who is over 80 years of age, is the sole owner of agricultural property in Yellowstone County. For a number of years, she allowed her adult son Edward, the defendant in this case, to reside on the property. In 1986, Edward placed a lien on the property. In 1988, the District Court extinguished the lien and quieted title in Anna. We affirmed that action in ~eiter v. ~eiter (Mont. 1989), 772 P.2d 314, 46 St.Rep. 751. On ~ p r i l 8, 1988, Edward was served with a ~otice to ~errninate unspecified Lease, To Remove Personal properties and To Return production ~onies. When Edward failed to comply with the notice, Anna filed this unlawful detainer action in Justice Court. ~ollowing a hearing at which Edward appeared pro se, the Justice Court found in favor of Anna, ordering Edward to vacate the property and to pay Anna's reasonable attorney's fees. In July, 1988, Edward filed a timely appeal for trial de novo in the District Court. On October 19, 1988, the District Court dismissed the appeal because Edward had failed to file an undertaking. On December 16, 1988, the court reinstated the appeal, allowing Edward to forego the undertaking due to his indigence. At that time, the Court set trial for December 28, 1988. Edward's subsequent motion to continue the trial was denied and trial proceeded as scheduled on December 28. Edward failed to attend the hearing, choosing instead to file a document entitled rial De Novo submitted on points of Law in ~bsentia in which he stated that he was unable to obtain a lawyer on such short notice and he refused to be cross-examined without the presence of counsel. The ~istrict Court found in favor of Anna and ordered Edward to leave the farm. He now appeals to this Court. After reviewing the file, we hold that Edward was afforded adequate due process. Edward claims that he did not have adequate time to obtain an attorney or conduct discovery. These contentions stretch the imagination. ~ i v e months elapsed from the time Edward filed notice of appeal to the time of trial. Although the appeal was dismissed and reinstated during that time, these actions did not prevent Edward from procuring the services of counsel. Moreover, once the ~istrict Court granted Edward's motion for leave to appeal without an undertaking, it was obliged to expedite the matter in order to prevent the possible destruction of Anna's property during the pendency of the action. Edward also complains that he was not allowed a trial by 7 . The argument is frivolous. A party desiring a jury trial must file a demand before the commencement of the proceeding or the right to a jury will be waived. Section 25-31-804, MCA. At no time did Edward demand a jury trial. Edward's second issue also lacks merit. Substantial credible evidence supports the ~istrict Court's finding that Edward was a tenant at will. The evidence established that Anna was the sole record owner of the property, that she allowed Edward to reside on the property for an indeterminate time without a specific lease and that he had been served with proper notice to leave the premises. As Edward elected not to attend the trial, the record is devoid of any evidence to refute these facts. Our consideration of the record leads us to conclude that this appeal has been taken without substantial or reasonable grounds. We therefore award sanctions against Edward pursuant to Rule 32, M.R.App.P., in the amount of $500. The sanction shall be paid to the plaintiff, Anna Reiter . Appeal dismissed. / A J ' " z J ~ ~ Chle Justice	January 4, 1989
0f0b5471-c1ac-4fa7-8cc3-9907e69d32d2	MATTER OF WOOD	N/A	88-313	Montana	Montana Supreme Court	IN THE SIJPREME COURT OF THE STATE OF MONTANA IN THE MATTER OF KEITH WAYNE WOOD, a Youth under the age of Eighteen. C . - I - . I TI U APPEAL FROM: The Youth Court of the Eleventh Judicial I f $ ~ t r i ~ , - - In and for the Countv of Flathead, I. I . : 17.1 . ' The Honorable Michael H. Keedy, Judge pres&d??ng?3 0 _yr: C 4 COUNSEL OF RECORD: m 4 For Appellant: Stephen J. Nardi; Sherlock & Mardi, Kalispell, Montana For Respondent: Honorable Marc Racicot, Attorney General, Helena, Montana George Schunk, Assistant Attorney General, Helena, Montana Ted 0 . Lympus, Flathead County Attorney, Kalispell, Montana Submitted: November 15, 1988 Decided: February 14, 1989 0 Filed: X -- Clerk s - Mr. Justice William E. Hunt, Sr., del-j-vered the Opinj-on of the Court. Pursuant to 5 41-5-206 (3), MCA, the youth court of the Eleventh Judicial District, Flathead County, ordered the case of Keith Wavne Wood, a youth, transferred to District Court. The youth appeals the transfer, arguing that S 41-5-206(3), MCA, is unconstitutional. We affirm the District Court. The following issues were raised on appeal. 1. Is § 41-5-206(3), MCA, unconstitutional because it: (a) denies a youth's right to due process? (b) denies a youth's right to equal protection? (c) violates the separation of powers doctrine of the Montana Constitution? Keith Wayne Wood, a youth, was arrested on March 30, 1988 for two counts of deliberate homicide. He was brought before the youth court on March 31, 1988 for the purpose of appointing him a counsel and determining whether he should be detained. On April 4, 1988, the county attorney for Flathead County filed a motion pursuant to 5 41-5-206(3), MCA, in the youth court to transfer the case to the District Court. Wood appeared before the youth court on May 6, 1988, at which time he conceded he was 16 years old at the time of the wrongful. acts alleged in the petition and, if true, the acts alleged would constitute two counts of deliberate homicide under 45-5-102, MCA. On May 10, 1988, the youth court, by written order, granted the county attorney's motion and transferred jurisdiction over the matter of Keith Wayne Wood to the District Court of the Eleventh Judicial District, Flathead County. In its findings of fact, the youth court found that at the time of the alleged wronqful acts Wood was 16 vears of age, the acts, if true, would constitute deliberate homicide as defined in 45-5-102, MCA, and probable cause existed to conclude that Wood committed the alleged acts. In granting the order, the youth court relied. on 5 41-5-206(3), MCA, which states that The court shall grant the motion to t-ransfer if the youth was 16 years old or older at the time of the conduct alleged to be unlawful and the unlawful act would constitute deliberate homicide as defined in 45-5-102, mitigated deliherate homicide as defined in 45-5-103, or the attempt, as defined in 45-4-103, of either deliberate or mitigated deliberate homicide if the act had been committed by an adult. The youth court found this statute rationally based upon the age of the offenders and the seriousness of the offenses. The youth court thus found that the statute does not create an unreasonable age classification and therefore does not violate a youth's right to due process nor to equal prot.ection. The youth court also found that the statute does not violate the constitutional guarantee of the separation of legislative and judicial powers, but rather found that redefining the Youth Court Act is a valid exercise of legislative authority. Wood appeals the transfer to District Court, presenting three constitutional issues for review. The first issue raised on appeal is whether 5 41-5-206(3), MCA, denies a youth's constitutional right tc? due process. One of the purposes of the Montana Youth Court Act, S S 41-5-101 through 41-5-809, MCA (1987), is to substitute rehabilitation in lieu of punishment for youths who have violated the law. Section 41-5-102(2), MCA. To further this purpose, the youth court is granted exclusive original. jurisdiction of youths who have violated any law other than a traffic or fish and game law prior to having reached 18 years of age. Section 41-5-203(l), MCA. The Act, however, also pro~rides for a youth's transfer to district court upon a motion of the county attorney in certain instances. Section 41-5-206, MCA. Wood argues that § 41-5-206(3), MCA, is unconstitutional because the provision denies a youth, aged 16 years or older and who has allegedly committed or attempted to commit deliberate or mitigated deliberate homicide, the right to a hearing whereby a youth court considers mitigating factors in its determination of whether to transfer the youth to district court. In particular, Wood argues that § 41-5-206 (1) , MCA, grants these youths a hearing to determine whether to transfer them to district court, hut that S 41-5-206 (3), MCA, dictates the outcome of the hearing by mandating the youth court to grant the county attorney's motion to transfer these youths. In asserting this argument, Wood relies upon a United States Supreme Court decision, Kent v. United States (19661, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84. In Kent, a 16 year old youth from the District of Columbia was charged with housebreaking, robbery, and rape. Before transferring a youth aged 16 years or older from youth court to district court, the District of Columbia statute required a "full investigation." The youth court transferred jurisdiction of the youth to district court without a hearing or any investigation. Kent, 383 U.S. at 543-48, 86 S.Ct. at 1048-51, 16 L.Ed.2d at 87-90. The Supreme Court stated that the statute "assumes procedural regularity sufficient in the particular circumstances to satisfy the basic requirements of due process and fairness, as well as compliance with the statutory requirement of a ' full investigation. ' " Kent, 383 U.S. at 553, 86 S.Ct. at 1053, 16 L.Ed.2d at 93. The Court therefore held that procedural due process is required by the F0urteent.h Amendment when transferring a youth from youth court to district court. Kent, 383 U.S. at 557-63, 86 S.Ct. The United States Supreme Court in Rreed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, however, recognized that it has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court. We require only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court system before entering upon a proceeding that may result in an adjudicatj-on that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings. Breed, 421 1 J . S . at 537-38, 95 S.Ct. at 1790, 44 L.Ed.?d at 360. Subsequent United States' Court of Appeals decisions have held that a state's treatment of youths outside of the criminal system is not an inherent right and may be redefined or restricted by state legislation, so long as no arhitrarv or discriminatory classification is in~~olved. Woodard v. Wainwright (5th Cir. 1977), 556 F.2d 781, 785, cert. denied, 434 U.S. 1088, 98 S.Ct. 1285, 55 L.Ed.2d 794 (1978); see also -- IJnited States v. Quinones (1st Cir. 1975), 516 ~ . 2 d 1309, 1311, cert. denied, 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76; Cox v. United States (4th Cir. 1973), 473 F.2d 334, 336, cert. denied, 414 U.S. 869, 94 S.Ct. 183, 38 L.Ed.2d 116. Wood recognizes that a youth's treatment outside of the criminal system may be redefined or restricted by the state legislature, hut asserts that under S 41-5-206 (1) , MCA, the legislature qranted all youths a hearing before being transferred to djstrict court and. that 5 41-5-206 (3), MCA, dictates the outcome of that hearing for youths aged 16 vears or older and who have committed or attempted to commit deliberate or mitigated deliberate homicide. We disagree with Wood's basic assertion. Section 41-5-206 (1) (a) (i) , MCA, provides that youths, aged 12 years or older and who have committed sexual intercourse without consent or who have committed or attempted to commit deliberate or mitigated deliberate homicide, may be transferred, after a hearina, to district court by motion of the county attorney. Section 41-5-206(3), MCA, however, provides that youths aged 16 years or older who have allegedly committed or attempted to commit one of these offenses--deliberate or mitigated deliberate homicide--must he transferred to district court upon a motion -- by the county attorney. This Court first recognizes that S 41-5-206, MCA, is presumed constitutional and that the party attacking the statute, Wood, has a significant burden in proving its invalidity. T & W Chevrolet v. Darvial (19821, 196 Mont. 287, 292, 641 P.2d 1368, 1370. We hold that Wood failed to meet this burden. When interpreting statutes, this Court must adhere to the legislators' intent. State v. Hubbard (1982), 200 Mont. 1.06, 110-11, 649 P.2d 1331, 1333. Prior to 1987, S 41-5-206, MCA, required a hearing for all youths before transferring them to district court. The legislature amended the statute in 1987 by enacting S 41-5-206(3), MCA. This provision provides for automatic transfer of youths aged 16 years or older and who have allegedly committed or attempted to commit deliberate or mitigated deliberate homicide. The presumption exists that, by adopting an amendment to a statute, the legislature intended to make some change in existing law. Foster v. Kovich (1983), 207 Mont. 139, 144-45, 673 P.2d 1239, 1243. This Court must also, if possible, give effect to all of the provisions. D a r b ~ Spar, Ltd. v. Dept. of Revenue (Mont. 19851, 705 P.2d 111, 113, 42 St.Rep. 1262, 1264-65. We therefore hold that S 41-5-206(3), MCA, which applies to youths aged 16 years or older, has the effect of limiting S 41-5-206(1), MCA, to youths aged 12 years or older hut under the age of 16 years when the alleged offense is deliberate or mitigated deliberate homicide or the attempt of either. Section 41-5-206 (3) , MCA, therefore does not dictate the outcome of a hearing, since the youths who fall under this provision are not granted an initial hearing. Any other interpretation of the entire statute would render the legislature's enactment of subsection 3 of the statute meaningless. Wood was transferred from youth court to district court under 41-5-206(3), MCA. No procedural irregularities were alleged, nor were any evident in the record. Section 41-5-206 (3) , MCA, therefore meets the minimum federal requirements and does not violate Wood's right to due process under the Fourteenth Amendment. The next issue raised on appeal is whether $ 5 41-5-206(3), MCA, denies a youth's right to equal protection. In asserting his equal protection argument, Wood only refers to the Equal Protection Clause of the United States Constitution. U.S. Const. amend. 14, 1. As previously stated, youths aged 16 years or older and who have committed or attempted to commit deliberate or mitiqated deliberate homicide are not granted a hearing prior to transfer to district court as a result of S 41-5-206(3), MCA. Since a state's treatment of youths outside of the criminal svstem is not an inherent right and. may be redefined or restricted by state legislation, see Woodard, 556 F.2d at 785, this Court needs to determine next whether such a classification is constitutional under the Equal Protection Clause of the Fourteenth Amendment. The United States Supreme Court recognizes three levels of scrutiny when determining whether a system o" classification found within a state statute is constitutional. The strict scrutinv analvsis, requiring the most exacting scrutiny, is applied when the classification is based on an inherently suspect class--race, national origin or al.i.enage--or when the classification infringes on a fundamental right. See, e.g., Loving v. ~irginia (1967), 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (race); Graham v. Richardson (1971), 403 1J.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (alienage); Oyama v. California (1948), 332 U.S. 633, 68 S.Ct. 269, 92 L.Ed. 249 (national origin); Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (fundamental right to travel interstate); Dunn v. ~lumstein (1972), 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (fundamental right to vote) . When applying the strict scrutiny test, the government has the burden of proving that the statute is justified by a compelling state interest, narrowly tailored, and no other avenues less burdensome are avail-able in which to accomplish the objective. Dunn, 405 U.S. at 342-43, 92 S.Ct. at 1003, 31 L.Ed.2d at 284-85. The intermediate level of scrutiny employed by the United States Supreme Court generally applies when classifications are based on gender or illegitimacy. See, -- e.g., Clark v. Jeter (1988), - U. S. , 108 S.Ct. 1910, 100 L.Ed.2d 465 (illegitimacy); Mississippi University for Women v. Hogan (1982), 458 U.S. 718, 102 S.Ct. 3331, 73 L. Ed. 2d 1090 (gender) . To withstand intermediate scrutiny, the party seeking to uphold the statutory classification must show that the classification is substantially related to an important governmental objective. Hogan, 458 U . S . at 724, 73 S.Ct. at 3336, 73 L.Ed.26 at 1098. All other classifications scrutinized under the United States Constitution are subject to the minimal rational basis standard of review. Under this standard, classifications are presumed constitutional and the party challenging the statute bears the burden of proving beyond a reasonable doubt that the classification is not rationally related to a legitimate state objective. Minnesota v. Clover Leaf Creamery Co. (1981) , 449 U.S. 456, 464, 101 S.Ct. 715, ?24, 66 L.Ed.2d 659, 668-69, reh. denied, 450 U.S. 1027, 101 S.Ct. 1735, 68 L.Ed.2d 222. The United States Supreme Court applies this standard of review when classifications are based on economics or social welfare. Dandridge v. b7illiams (1970) , 397 U.S. 471, 485, 90 S.Ct. 1153, 1161, 25 L.Ed.2d 491, 501-02. Wood argues that 5 41-5-206 (3), MCA, deprives him, and all such youths si-milarly situated, to equal. protection by infringing on his "'fundamental right' of due process of law." In asserting this argument, Wood argues that the strict scrutiny analysis is applicabl-e and that the stat-e therefore has the burden of showing that classifying youths who have violated the law on the basis of age and seriousness of the offense is justified by a compelling state interest. Wood recognizes the protection of the community as the state's interest in this matter, and then argues that classifying youths on the bases of their age and seriousness of the offense is neither rationally related to a legitimate state interest nor justified by a compelling state interest. We disagree with Wood's basic assertion that procedural due process, as mandated by the Fourteenth Amendment, is also a fundamental right. No support exists for this assertion. On the contrary, the United States Supreme Court has limited its recognition of fundamental rights, requiring a strict scrutiny analvsis, to interstate travel, voting, privacy, and the rights guaranteed by the First Amendment, which includes the freedom of speech, press, religion, association and belief, and the right to assemble peaceably and to petition the government for redress of grievances. See, e-g., - Shapiro, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (interstate travel); Dunn, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (voting); Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (privacy); widmar 17. Vincent (1981), 454 U.S. 263, 102 S.Ct. 269, 70 ~ . ~ d . 2 d 440 (speech) ; Press-Enterprise Co. v. Superior Court (1984) , 464 11.s. 501, 1 . 0 4 S.Ct. 819, 78 L.Ed.2d 629 (press); Wisconsin v. Yoder (1972), 406 U.S. 205, 92 S.Ct. 1526, 32 ~ . ~ d . 2 d 15 (religion); Shelton v. Tucker (1960), 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (association and belief); and Hague v. C.I.O. (1939), 307 1 J . S . 496, 59 S.Ct. 954, 83 L.E~. 1423 (assemble peaceably and petition government for redress of grievances) . The classification found in 5 41-5-206(3), MCA, is based on both age and gravity of the offense. The United States Supreme Court has held that age is not a suspect class requiring a strict scrutiny analysis. Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 313-15, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520, 524-26. The classification is also not based on gender or illegtimacy, and therefore not subject to an intermediate level of scrutiny. In light of the above, we hold that the proper standard of review in this case is whether the classification found in 5 41-5-206, MCA, is rationally related to a legitimate state interest. Wood therefore has the burden of showing that the age and seriousness of the offense are not rationally related to a legitimate state interest. Metropolitan Casualty Ins. Co. v. Brownell (1935), 294 1 J . S . 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070, 1072-73. Me hold that. Wood has failed to meet this burden. The legislative history of House Bill 470, the legislative vehicle of 5 41-5-206(3), MCA, reveals that the legislature recognized the increase in the number of homicides committed by today's teenagers and expressed that the passage of House Bill 470 would aid in dealins effectively with these youths. Minutes of Montana House Judiciary Committee, at 8-9 (February 17, 1987). Wood bases his argument on the Equal Protection Clause of the United States Constitution, U.S. Const. amend. 14, S 1, and in light of the federal cases noted above, we hold that $ 41-5-206, MCA, does not violate this clause. Wood, however, does not refer to the Montana Constitution. Nonetheless, this Court reserves "the power to examine constitutional issues that involve broad public concerns to avoid future litigation on a point of law." In the Matter of N.B. (Mont. 1980), 620 P.2d 1228, 1231, 37 St.Rep. 2033., 2033. We choose to exercise this power to determine whether § 41-5-206, MCA, violates the Equal Protection Clause of the Montana Constitution. In examining whether a statute is constitutional under our state Equal Protection Clause, Mont. Const. art. 11, S 4, this Court also recognizes a three tier analysis. This Court, however, has chosen not to follow the exact standards as set forth in the United States Supreme Court's decisions. Pfost v. State (Mont. 1985), 713 P.2d 495, 500-01, 42 St.Rep. 1957, 1963-64; Butte Community Union v. Lewis (Mont. 19861, 712 P.2d 1309, 1313, 43 St.Rep. 65, 70. When a fundamental right, as enumerated by the Montana Constitution, is being deprived, or when a suspect classification exists, this Court will apply the strict scrutiny analysis. - - Pfost, 713 P.2d at 501, 42 St.Rep. at 1964. The middle tier analysis, first developed in -- Butte Community . -- Union, is applicable when a benefit, not. found within the Declaration of Rights, is nonetheless lodged within the Montana Constitution. In Butte Community Union, we held that no fundamental right to welfare exists, but. noted that Article XII, S 3(3), directed the legislature to provide necessary assistance to the misfortunate. e therefore held that in determining whether a classification found within a welfare statute is constitutional, the state must demonstrate that 1) the classification is reasonable and 2) the state's interest in the classification is more important than the people's interest in obtaining welfare benefits. Butte Community Union, 712 P.2d at 1312-14, 43 St.Rep. at 68-71. In other circumstances, this Court applies the rational basis analysis. - See Cottrill v. Cottrill Sodding Service (Mont. 1987), 744 P.2d 895, 897, 44 St.Rep. 1762, 1764; Godfrey v. Montana State Fish and Game Comm'n. (Mont. 1981), 631 P.2d 1265, 1267-68, 38 St.Rep. 661, 663-65. The Montana Constitution provides that "the rights of persons under 18 years of age shall include, hut not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons." Mont. Const. art. 11, 5 15. The Equal Protection Clause of the Montana Constitution provides that "Inlo person shall be denied the equal protection of the laws. . . ." Mont. Const. art. 11, 5 4. No provision exists in the Montana Constitution that provides a youth with a fundamental right to be treated specially, nor are anv benefits lodged within the Montana Constitution that would provide a youth with an interest whose statutory abridgement requires something more than a rational relationship to a legitimate government objective. We therefore hold that the rational basis analysis is applicable in this case to determine whether the statute is constitutional under the Montana Constitution. As we noted above, we hold that the statute is rationally related to a legitimate state interest. Other jurisdictions faced with the same issue, utilized a rational relationship test and upheld classifications based on age and seriousness of the offense. See People v. J. S. (Ill. 1984), 469 N.E.2d 1090, 1094-95; State v. Anderson (Idaho 1985), 700 P.2d 76, 80; People v. Drayton (N.Y. 19761, 350 N.E.2d 377, 379-80; People v. Thorpe (Colo. 19821, 641 P.2d 935, 937-40. As already noted, treatment as a juvenile is not an inherent right and the legislature may restrict or qualify that right. We therefore conclude that the classification found in S 41-5-206, MCA, based on age and seriousness of the offense, is rationally related to the legitimate state objective of curbing homicides committed by teenagers and protecting society from these violent offenders under both the United States and Montana Constitutions. The last issue raised on appeal is whether § 41-5-306, MCA, violates the separation of powers doctrine of the Montana Constitution. Wood argues that the legislature is attempting to control a judicial function by enacting § 41-5-206 (3) , MCA. Specifically, Wood argues that the legislature has usurped the judiciary's power to hear and decide motions brought before it and that this violates the doctrine of separation of powers under the Montana Constitution and must be declared invalid. We disagree. The legislature's power to create the youth courts is unquestionable. The Montana Constitution provides that "[tlhe judicial power of the state is vested in one supreme court, district courts, justice courts, and such other courts - -- - - - as may be provided & law " (emphasis added). Mont. Const. - - - art. VII, 1. Under this section, the legislature established the vouth courts to provjde iudicial protection for youths who have violated the law. As previously noted, the legislature also has the inherent power to redefine that protection to achieve a legitimate state objective. The legislature pursued this option in 1987 by revising the legislatively-created transfer of jurisdiction mechanism. We held above that by the enactment of S 41-5-206(3), MCA, the legislature does not grant youths age 16 years or older who have committed or attempted to commit deliberate or mitigated deliberate homicide, a hearing to consider mitigating factors before transferring the youth to district court. No violation of the separation of power doctrine occurs under the Montana Constitution when the legislature acts to revise the protections afforded youths which were created. under its own legislative power. In light of the above we hold that 41-5-206, MCA, does not violate the separation of powers doctrine of the Montana Constit.ution. Affirmed. We Concur CL; , , r Chief Justice	February 14, 1989
f5eedc53-d28f-459c-b62a-711d1e0c78ec	USA BLM v. Korman	2016 MT 351N	DA 16-0019	Montana	Montana Supreme Court	DA 16-0019 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 351N UNITED STATES OF AMERICA (Bureau of Land Management), Claimant and Appellee, v. RON KORMAN and MAXINE KORMAN, Objectors; Counter-Objectors and Appellants. APPEAL FROM: Montana Water Court, Cause No. 40M-230 Honorable Douglas Ritter, Water Judge COUNSEL OF RECORD: For Appellants: Ron Korman (Self-Represented), Maxine Korman (Self-Represented), Hinsdale, Montana For Appellee: Roselyn Rennie, U.S. Department of the Interior, Office of the Solicitor, Billings, Montana John C. Cruden, Assistant Attorney General, Elizabeth Ann Peterson, John L. Smeltzer, James J. Dubois, Appellate Attorneys, United States Department of Justice, Washington, DC Submitted on Briefs: September 28, 2016 Decided: December 28, 2016 Filed: __________________________________________ Clerk 12/28/2016 Case Number: DA 16-0019 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Ron Korman and Maxine Korman appeal from the Water Court’s order on motions for summary judgment dated August 11, 2015. We affirm. ¶3 This Water Court case arises from seventeen claims filed by the BLM in the ongoing Montana water rights adjudication process. The BLM claims, for stockwater and wildlife uses, arise from reservoirs on public lands along Beaver Creek, a tributary of the Milk River. Kormans graze livestock by permit on these public lands and claim that their ancestral free grazers perfected senior stockwater rights from the same sources by direct consumption from the streams. Kormans argue that the BLM therefore could not perfect any water rights in the reservoirs because of the prior stockwatering direct from the streams. Kormans also argue that the BLM could not perfect water rights because it never grazed its own livestock. Kormans also contend that the BLM claims are precluded by prior decisions by the Water Court in the Powder River Basin, and that the wildlife claims are precluded by the Taylor Grazing Act. ¶4 The Water Court determined that the BLM was entitled to appropriate water by following Montana law; that the BLM followed the steps required to appropriate water 3 with a reservoir for use by others; that the BLM could appropriate water for wildlife purposes; and that there was no basis for transferring the BLM claims to the Kormans. We recently considered many of these same claims from other objectors to other BLM claims. BLM v. Barthelmess, 2016 MT 348, ___ Mont. ___, __ P.3d ___ (2016). We therefore reject Kormans’ objections for the same reasons explained in that Opinion. ¶5 The Powder River proceedings in the Water Court involved issues of water rights developed by private persons on federal land. The Water Court held that those persons could perfect water rights in sources on federal land without those rights becoming appurtenant to the federal lands. The Water Court did not determine that the BLM was precluded from appropriating water in its own right by following Montana law, and the Powder River proceedings do not preclude the BLM claims in this case. Similarly, the Taylor Grazing Act (43 U.S.C. § 315h) specifically authorized the Secretary of the Interior to give consideration to wildlife in the management of public lands and waters. Kormans’ arguments do not preclude the BLM claims in this case. Moreover, Montana law recognizes the validity of water appropriations for wildlife purposes, In the Matter of the Adjudication of Existing Rights (Bean Lake III), 2002 MT 216, ¶ 40, 311 Mont. 327, 55 P.3d 396, and the BLM’s impoundment and appropriation of water pursuant to Congressional directive are sufficient to support claims for wildlife uses. ¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, this case presents a question controlled by settled law or by the clear application of applicable standards of review. 4 ¶7 Affirmed. /S/ MIKE McGRATH We Concur: /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA Justice Laurie McKinnon, dissenting. ¶8 I dissent for the reasons set forth in In re Barthelmess Ranch Corp., 2016 MT 348, __ Mont. __, __ P.3d __ (2016) (McKinnon, J., dissenting). /S/ LAURIE McKINNON	December 28, 2016
4e6fb295-066c-4d26-9f64-57a49baaef83	RIVERA v ESCHLER	N/A	88-415	Montana	Montana Supreme Court	No. 88-415 88-422 IN THE SUPREME COURT OF THE STATE OF MONTANA NO. 88-415 KIM RIVERA, Petitioner and Respondent, -vs- JANET E. ESCHLER, Justice of the Peace, Justice Court, YELLOWSTONE COUNTY, MONTANA, Respondent and Appellant. NO. 88-422 STATE, ex rel., TERRY VUKASIN, Plaintiff and Respondent, -vs- THE JUSTICE COURT OF YELLOWSTONE COUNTY, MONTANA, and JANET E. ESCHLER, JUSTICE OF THE PEACE, Defendants and Appellants. APPEAL FROM: The District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Harold Hanser, County Attorney, David Hoefer, Deputy, Billings, Montana (88-415 & 88-422) For Respondent: Scott Gratton; Anderson, Brown Law Firm, Billings, Montana (88-415) Addison Sessions; Thompson & Sessions, Billings, cy Wontana (88-422) M 4 1 . " 4 -I > . . . r--4 b i , . - . . mu_. _ F;7 Cf< 1 L.. . Submitted: December 9, 1988 Decided: January 10, 1989 .J >- -.- c7r -- ED SMITH c: * t - ) . - -L Clerk Mr. Justice John Conway Harrison delivered the Opinion of the Court. This case comes to us from the issuance of a writ of certiorari by the Honorable Robert Holmstrom, Thirteenth Judicial District Court, Montana, annulling an order entered by the appellant, Janet Eschler, Justice of the Peace, Yellowstone County. We affirm. On September 23, 1986, the respondent, Kim Rivera, was found guilty of driving a motor vehicle under the influence of alcohol. Appellant Janet Eschler, Yellowstone County Justice of the Peace, sentenced the respondent to a one-year suspended sentence, imposed a fine of $400, required respondent to complete the Rimrock Foundation DUI school and "treatment as necessary." At the completion of counseling, respondent engaged in an exit interview. On the basis of the interview, Rimrock Foundation counselors recommended the respondent enroll in an inpatient treatment facility. On February 4, 1987, appellant ordered the respondent to fol-low the recommendations of the counselor at the Rimrock Foundation and perform the following: (a) That the defendant enroll in a licensed chemical dependency center; (b) That the defendant abide by all aftercare recommendations made by the facility upon completion of treatment; (c) That the defendant abstain from all use of alcohol and drugs; (d) That the defendant appear before this court on February 9, 1987, at 4:30 p.m. At this time defendant shall state to the court the place and date of his treatment enrollment. All arrangements must be made by said date or cause a warrant to be issued, and defendant incarcerated. The respondent petitioned the District Court to exercise certiorari. On May 26, 3988, District Court Judge Holmstrom annulled the order, finding appellant lacked jurisdiction to modify the initial sentence. The facts and procedure in~rolving the second respondent, Terry Vukasin, are directly analogous to the Rivera case. Pursuant to a sentencing order dated November 30, 1987, Vukasin completed an alcohol treatment program. On January 21, 1988, Justice Eschler directed Vukasin to follow recommendations of Rimrock Foundation counselors, enroll in a licensed chemical dependency treatment center and attend aftercare treatment. On June 20, 1988, District Court Judge G. Todd Baugh deferred to Judge Holmstrom's decision in the Rivera case and directed the January 21, 1988 order annulled. The appellant's motion for consolidation acknowl.edges the analogous nature of the two cases. Appellant presents a single issue on appeal: 1. Did Justice of the Peace Eschler have jurisdiction, pursuant to section 61-8-714(4), MCA, to order respondents, both convicted of the offense of driving under the influence of alcohol, to enroll in a licensed chemical dependency center, to abstain from all use of alcohol and drugs, and to abide by all aftercare recommendations made by the facility upon the completion of treatment? In addition, respondents question the constitutionality of the orders, alleging a violation of their due process rights by the disallowance of a hearing and counsel prior to sentencing. Because this appeal can be decided solely on the question of statutory authority, we need not address respondents' constitutional argument. Section 61-8-714, MCA, provides in pertinent part: 61-8-714. Penalty for driving under the influence of alcohol or drugs. (I) A person convicted of a violation of 61-8-401 shall be punished imprisonment in the county jail for not less than 24 consecutive hours or more than 60 days, and shall be punished by a fine of not less than. $100 or more than $500 . . . (4) In addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the department of institutions, which may include alcohol or drug treatment, or both, if considered necessary by the counselor conducting the program. Each counselor providing such education or treatment shall, at the commencement of the education or treatment, notify the court that the defendant has been enrolled in a course or treatment program. If the defendant fails to attend the course or the treatment program, the counselor shall notify the court of the failure. Appellant contends the language of § 61-8-714(4), MCA, allows for continuing authority to modify respondents' sentences, claiming the subsequent order is necessary to enforce the sentencing statute. This Court does not agree with appellant's interpretation. This Court has consistently held that " [olnce a valid sentence has been pronounced, the court imposing the same is lacking in jurisdiction to vacate or modify the sentence, except as otherwise provided by statute. . ." State v. Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711; Wilkinson v. State (1983), 205 Mont. 237, 667 P.2d 413. For example, we found such specific authorization in S 46-18-203, MCA, previously 95-2206, RCM (1947) : [A] judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201 . . . is authorized in his discretion to revoke the suspension or impose a sentence and orderLthe person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law - or retain such jurisdiction with the court. . . (Emphasis added.) The plain meaning of the statute gave the district court three mutually exclusive alternatives for handling a defendant who violated the terms of his probation, and could thereby modify the sentence. State v. Downing (1979), 181 Mont. 242, 593 P.2d 43. "While [the alternatj-ves] give the District Court some latitude in dealing with probation violators, they do not vest the court with completely unbridled discretion." Downing, 593 P.2d at 45. The explicit authorization necessary to modify the original sentence is notably absent in the present case. Section 61-8-714, MCA, contemplates all punishment and treatment he contained in the original order. Any other interpretation, we believe, would amount to an improper exercise of jurisdiction. Therefore, we conclude that upon imposition of the valid sentence, the appellant' s aut-hority to vacate or modify the sentence ceased. Affirmed. A We concur: A ief Justice	January 10, 1989
524e6f5e-76b7-4237-a83d-f9ef63807b73	State v. J. Meacham	2016 MT 334N	DA 16-0174	Montana	Montana Supreme Court	DA 16-0174 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 334N STATE OF MONTANA, Plaintiff and Appellee, v. JESSIE WILLIAM MEACHAM, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2014-298 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana Submitted on Briefs: November 16, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 16-0174 FILED Ed Smith CLERK OF THE SUPREME COURT STATE OF MONTANA 12/21/2016 Case Number: DA 16-0174 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Jessie Meacham appeals the Fourth Judicial District Court’s order denying his motion to suppress evidence and to dismiss charges relating to his arrest for driving under the influence. We affirm.1 ¶3 Missoula County Deputy Sheriff Rebecca Birket observed Meacham’s vehicle stuck in a snowbank behind a local saloon on February 27, 2014, at around 10:30 p.m. She approached Meacham’s vehicle to see if she could render aid. Meacham initially avoided eye contact with Deputy Birket and stared blankly straight ahead. Deputy Birket testified that she got out of her patrol car and approached to within approximately three feet of Meacham’s vehicle. She asked Meacham if he needed assistance. Meacham opened his car door and responded, “I’m good.” During this brief interaction, Deputy Birket noticed that Meacham slurred his words, that he smelled of alcohol, and that his eyes were “glossy,” “watery,” and “red.” 1 The appendix of appellant’s opening brief contained transcripts from hearings on October 17 and November 10, 2014. These transcripts were not made part of the District Court record according to M. R. App. P. 8(1). Because both parties cited to these transcripts on appeal, and because the transcripts appear to constitute authentic records of the proceedings, we rely on them in part in our summary of the factual background of this case. 3 ¶4 Deputy Birket began looking around the rear of Meacham’s vehicle. As she did, Meacham’s tires gained traction and he drove away. Deputy Birket yelled at him to stop. He did not respond, so Deputy Birket pursued him in her patrol car. Meacham initially eluded Deputy Birket, but another law enforcement officer stopped him. Deputy Birket arrived and questioned Meacham, and Meacham admitted that he had been drinking. Deputy Birket arrested Meacham. ¶5 The State charged Meacham with felony driving under the influence, obstructing a peace officer, and driving while license suspended or revoked. Meacham moved to suppress the evidence against him and to dismiss the charges. He argued that Deputy Birket lacked particularized suspicion to justify her investigative stop of his vehicle. ¶6 The District Court denied Meacham’s motion. It reasoned that Deputy Birket properly initiated contact with Meacham under the “community caretaker doctrine” and that, while acting in her community caretaker capacity, she observed facts sufficient to establish particularized suspicion that Meacham had been driving under the influence. ¶7 On appeal, Meacham concedes that Deputy Birket properly initiated contact with him under the community caretaker doctrine. He contends, however, that her community caretaker function ceased at the moment Meacham told her that he did not need her assistance. Meacham argues that Deputy Birket did not, at that point, possess particularized suspicion of criminal wrongdoing. He contends that her subsequent interactions with him constituted an unlawful seizure. As a result, all the evidence she obtained during that unlawful seizure should have been suppressed. 4 ¶8 We review a district court’s grant or denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were applied correctly as a matter of law. City of Missoula v. Moore, 2011 MT 61, ¶ 10, 360 Mont. 22, 251 P.3d 679. A district court’s finding that particularized suspicion exists is a question of fact, which we review for clear error. City of Missoula, ¶ 10. We review the grant or denial of a motion to dismiss in a criminal proceeding de novo to determine whether the district court’s conclusion of law is correct. State v. Kant, 2016 MT 42, ¶ 11, 382 Mont. 239, 367 P.3d 726. ¶9 This Court recognizes the community caretaker doctrine, which serves as an exception to the warrant requirement for seizures. State v. Spaulding, 2011 MT 204, ¶ 18, 361 Mont. 445, 259 P.3d 793. The doctrine allows a police officer to stop and investigate when the officer reasonably suspects that “a citizen is in need of help or is in peril.” State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471. Once the officer is “assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure which must be justified by something other than the community caretaker doctrine, such as particularized suspicion or probable cause.” Spaulding, ¶ 21. ¶10 Particularized suspicion requires that an officer possess: “(1) objective data and articulable facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is 5 about to commit an offense.” Brunette v. State, 2016 MT 128, ¶ 17, 383 Mont. 458, 372 P.3d 476 (citing Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842). ¶11 As Meacham acknowledges, the community caretaker doctrine permitted Deputy Birket to initiate contact with Meacham to see if he needed assistance. Lovegren, ¶ 25. Once Meacham assured Deputy Birket that he did not require her assistance, any further actions by Deputy Birket constituted a seizure which needed to “be justified by something other than the community caretaker doctrine, such as particularized suspicion.” Spaulding, ¶ 21. ¶12 Deputy Birket’s testimony establishes that she had developed particularized suspicion by the time Meacham assured her that he did not need her help. Deputy Birket had observed Meacham’s car stuck in a snowbank behind a saloon at night. Meacham avoided eye contact with her and was staring blankly straight ahead when she first approached him. During her conversation with Meacham, Deputy Birket noticed numerous objective signs of intoxication. These observations constituted “articulable facts” from which Deputy Birket made the reasonable inference that Meacham had committed or was committing the offense of driving under the influence. See Brown, ¶ 20; Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 40, 289 Mont. 1, 961 P.2d 75 (stating that a driver’s smell of alcohol, bloodshot and glassy eyes, and slurred speech may establish particularized suspicion that the driver is intoxicated); State v. Marcial, 2013 MT 242, ¶¶ 5, 19, 371 Mont. 348, 308 P.3d 69 (holding that where an officer asked defendant driver who nearly crashed his car if he was okay, and where the officer smelled 6 alcohol on defendant among other signs of intoxication, the officer possessed particularized suspicion that defendant had been driving under the influence). Deputy Birket’s investigation and pursuit of Meacham after Meacham assured her that he did not require assistance was thus “justified by something other than the community caretaker doctrine”—particularized suspicion. Spaulding, ¶ 21. ¶13 The District Court’s conclusion that Deputy Birket possessed particularized suspicion was not clearly erroneous. City of Missoula, ¶ 10. Because Deputy Birket possessed particularized suspicion, the investigation that followed was lawful. The District Court thus correctly denied Meacham’s motion to suppress evidence and to dismiss the charges. City of Missoula, ¶ 10; Kant, ¶ 11. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. The judgment is affirmed. /S/ BETH BAKER We concur: /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE	December 21, 2016
c7fa93aa-e7ca-402e-9274-61e3e783af3c	In re B.W.S.	2016 MT 340	DA 15-0791	Montana	Montana Supreme Court	DA 15-0791 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 340 IN THE MATTER OF: B.W.S., Youth in Need of Care. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Glacier, Cause No. DN-12-01 Honorable Daniel A. Boucher, Presiding Judge COUNSEL OF RECORD: For Appellant: Patrick Gilbert, Corinne Gilbert, Self-Represented, Springfield, Oregon For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Bradley Custer, Assistant Attorney General, Kalispell, Montana Carolyn Berkram, Glacier County Attorney, Cut Bank, Montana Submitted on Briefs: November 16, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 15-0791 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Intervenors Patrick and Corinne Gilbert appeal from a placement hearing held in the Ninth Judicial District Court, Glacier County, determining that the Department of Health and Human Services’s (Department) placement of B.W.S. with the Watson family was in B.W.S.’s best interests. We affirm. ISSUE ¶2 On appeal, the Gilberts raise nine issues. We restate the dispositive issue as follows: Whether the District Court erred in determining that it was in B.W.S.’s best interest to remain in her placement with her current foster family? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Born in January 2012, B.W.S. was removed from the care of her birth mother (Mother) on January 27, 2012, and placed in protective custody by the Department of Public Health and Human Services, Child and Family Services Division. Subsequently, B.W.S. was adjudicated a youth in need of care and temporary legal custody was granted to the Department. B.W.S. was placed with Jared and Cindy Watson on February 13, 2012, and has remained in that placement since that time. In June of 2013, the Department determined B.W.S. should remain in the care of the Watsons instead of being moved to reside with the Gilberts in Oregon. The Gilberts currently have custody of two of B.W.S.’s biological half-siblings. Citing their belief that B.W.S. should be with her half-siblings, the Gilberts intervened in the case in August 2013, contesting B.W.S.’s placement with the Watsons. 3 ¶4 In November 2013, in a separate action, Mother appealed the District Court’s termination of her parental rights and this Court reversed, see In re B.W.S., 2014 MT 198, 376 Mont. 43, 330 P.3d 467, determining that the district court judge should have recused himself. In re B.W.S., ¶ 19. On remand, the District Court set a hearing for January 2015 to determine whether to terminate Mother’s parental rights. Following a hearing, the District Court terminated Mother’s and any and all putative fathers’ parental rights on February 12, 2015, and granted permanent legal custody to the Department.1 Neither parent appealed. ¶5 On April 17, 2015, the District Court held a hearing to determine placement for B.W.S., with notice to the Gilberts as intervenors. Counsel for the Gilberts was forty-five minutes late for the hearing. The hearing commenced at approximately 10:45 a.m. and continued throughout the day with a few interruptions for recesses. When the court concluded the hearing at 6:05 p.m., counsel for the Gilberts complained that she had had insufficient time to introduce all of the evidence she wanted to present. The District Court disagreed and declined to extend the hearing. The transcript of the hearing is 301 pages in length. ¶6 On June 4, 2015, the District Court issued an Order on Placement concluding that it was in the best interests of B.W.S. to remain “in her current placement with the Watson family for adoption.” In its Order on Placement, the District Court repeatedly emphasized that, regardless of any errors that the Department may have committed 1 The biological father’s identity is unknown at this time. 4 during its earlier handling of the case, the determinative factor in the District Court’s decision was the best interests of the child at the current time. ¶7 On appeal, the Gilberts allege that their due process rights were violated during the placement hearing in numerous ways, including: the allocation of insufficient time to present their evidence, including witness testimony, at the hearing; the preclusion of certain evidence at the hearing; the allocation of insufficient time to cross-examine witnesses; and the District Court’s intentional mismanagement and insufficient knowledge of the case. Additionally, the Gilberts argue that, under the cumulative error doctrine, the errors in this case cumulatively require reversal of the District Court’s decision. STANDARDS OF REVIEW ¶8 We review a district court’s findings of fact to determine whether they are clearly erroneous. In re J.A.B., 2015 MT 28, ¶ 25, 378 Mont. 119, 342 P.3d 35. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if review of the record convinces the court that a mistake was made. In re J.A.B., ¶ 25. We review a district court’s conclusions of law to determine whether they are correct. In re J.A.B., ¶ 25. ¶9 We review discretionary trial court rulings for an abuse of discretion. In re Johnson, 2011 MT 255, ¶ 12, 362 Mont. 236, 262 P.3d 1105. Such a determination by a trial court is afforded “all reasonable presumptions as to the correctness of the determination” and will not be disturbed on appeal “unless there is a mistake of law or a finding of fact not supported by substantial credible evidence that would amount to a 5 clear abuse of discretion.” In re M.B., 2009 MT 97, ¶ 11, 350 Mont. 76, 204 P.3d 1242 (citation omitted). A district court abuses its discretion if it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason resulting in substantial injustice. In re J.A.B., ¶ 25. DISCUSSION ¶10 The Gilberts raise numerous issues alleging various theories under which their due process rights were violated during the course of the underlying proceeding. One of their primary due process allegations is that they were deprived of sufficient time within which to present their case at the placement hearing, which had been scheduled by the court to take three hours. While their attorney arrived 45 minutes late to the placement hearing, the court still afforded the parties sufficient time within which to present their arguments and evidence. Moreover, counsel for the Gilberts did not raise due process concerns in the District Court at the time counsel moved for continuation of the hearing. ¶11 This Court will not address issues raised for the first time on appeal. In re T.E., 2002 MT 195, ¶ 20, 311 Mont. 148, 53 P.3d 38. “In order to preserve a claim or objection for appeal, an appellant must first raise that specific claim or objection in the district court.” In re T.E., ¶ 20 (citation omitted). We have previously held that “when an appellant argues he was deprived of a fundamentally fair procedure, ‘it [is] necessary that he make the same argument to the District Court.’” In re T.E., ¶ 20 (quoting In re M.W., 2002 MT 126, ¶ 22, 310 Mont. 103, 49 P.3d 31). ¶12 Because the Gilberts did not raise any due process arguments in the District Court, we will not address the issue in depth on appeal. It bears noting, however, that the 6 District Court did allow the Gilberts to intervene in the case and contest the placement of B.W.S. and also allowed them the opportunity to be heard at a placement hearing. We have said that the hallmarks of due process are notice and opportunity to be heard. Kulstad v. Maniaci, 2010 MT 248, ¶ 41, 358 Mont. 230, 244 P.3d 722. The Gilberts had both. We therefore disagree with their contention that they did not receive due process. ¶13 Whether the District Court erred in determining that it was in B.W.S.’s best interest to remain in her placement with her current foster family? ¶14 As noted by the District Court, this Court has not yet addressed a placement dispute concerning a non-native child. Under the governing statutory law, a district court has the authority to “settle any dispute between the parties to an action regarding the appropriate placement” of a child alleged or adjudicated as a youth in need of care. Section 41-3-440, MCA. ¶15 The procedural posture of the instant case warrants a brief explanation. During the placement hearing, the District Court noted that the Department had already been granted full legal custody of B.W.S. and the right to consent to adoption following the termination hearing. Under such circumstances, the District Court would not normally be called upon to determine whether the Department’s subsequent placement was appropriate, as absent any dispute regarding an appropriate placement, such a determination is up to the Department. Section 41-3-440, MCA. However, because the Gilberts had challenged the placement and the Department conceded that permanent legal custody should be conditioned upon a placement hearing, it was appropriate for the court to “settle any dispute between the parties to an action regarding the appropriate 7 placement.” Section 41-3-440, MCA. The court explicitly concluded that the burden of proof would not be on either party and that both parties would have “equal footing” during the placement hearing. ¶16 The question before this Court is whether the District Court erred in finding that placement with the Watsons was in the best interest of B.W.S. and determining that the Department could consent to adoption of B.W.S. by the Watsons. Because this determination is squarely within the province of the District Court, we review it for an abuse of discretion. ¶17 The Gilberts argued strenuously that because they had custody of B.W.S.’s biological half-siblings, placement of the child with them was appropriate. In addition, they challenged the propriety of the placement with the Watson family, arguing among other things that the Watson’s adult son Dalton Becker presented a danger to the child. They also raised multiple questions about the manner in which the Department had handled earlier proceedings with respect to B.W.S. ¶18 When delivering its decision orally at the placement hearing, the District Court engaged in a detailed review of the evidence presented, continually noting that the primary consideration before the district court was the best interests of B.W.S. at the present time. In determining that the current placement was in the best interests of B.W.S., the District Court found that B.W.S. had been with the Watsons for three years and three months, that B.W.S. had bonded with the Watsons and with B.W.S.’s foster siblings, that there was no evidence B.W.S. had been harmed by placement with the Watsons, that evidence established B.W.S. was healthy, and that there were no signs of 8 abuse or neglect in B.W.S.’s current placement. Further, in response to claims made by the Gilberts, the District Court concluded that there was no evidence that B.W.S. was at risk of harm from the Watsons’ adult son Dalton Becker, and that B.W.S. had been protected from Becker since placement with the Watsons. Finally, the District Court found that removal from the current placement would cause harm to B.W.S. ¶19 A district court “is bound to give primary consideration to the physical, mental[,] and emotional conditions and needs of [the child].” In re A.H.D., 2008 MT 57, ¶ 13, 341 Mont. 494, 178 P.3d 131. The subject statute, § 41-3-440, MCA, squarely places the resolution of any placement dispute within the discretion of the District Court. We determine that the District Court’s findings of fact were supported by substantial evidence, and that the District Court did not misapprehend the effect of that evidence. A review of the record convinces this Court that, even without the guidance of previous case law on this subject, the District Court did not act arbitrarily or exceed the bounds of reason in reaching its final determination that placement with the Watsons was in the present best interests of B.W.S. CONCLUSION ¶20 We conclude that the District Court did not err in approving the Department’s placement of B.W.S. with the Watsons. We decline to reach the constitutional issues raised by the Gilberts as they are not properly before this Court. We reiterate that the Gilberts received notice and an opportunity to be heard in this case. Affirmed. /S/ PATRICIA COTTER 9 We Concur: /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE	December 27, 2016
2bb2d3f1-59b0-4da6-988d-afaed0cfa2b9	MARRIAGE OF POPP	N/A	88-285	Montana	Montana Supreme Court	No. 88-285 IN THE SUPREME COURT OF THE STATE OF MONTANA 1989 IN RE THE MARRIAGE OF ROBERT A. POPP, Petitioner/Appellant and Cross Respondent, and SUSAN (POPP) MARTIN, Respondent/Respondent and Cross 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: Stephen C. Moses, Moses Law Firm; Billings, Montana For Respondent: Allen Reck, Billings, Montana - Submitted on Briefs: December 16, 1988 Decided: January 17, 1989 ED SMITH Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. Robert Popp appeals a final judgment of the District Court of the Thirteenth Judicial District, Yellowstone Coun- ty. He challenges the valuation and distribution of the marital estate. We affirm the judgment of the District Court. Four issues are raised in this appeal: 1. Did the District Court improperly value the cattle? 2. nid the District Court err in including as a marital asset the monies spent bv the husband to maintain himself and two of the parties' minor children? 3. Did the District Court err in including as a marital asset the value of the irrigation pipe? 4. Is the District Court attempting to punish the husband? This is the second time this case has been before this Court. In the first trial, the District Court awarded sixty percent of the marital estate to the husband and forty per- cent to the wife. In re the Marriage of Popp (1983), 206 Mont. 415, 671 P.2d 24. In response to the wife's appeal of that judgment, this Court determined that the marital assets were improperly valued and the case was remanded for a re- hearing on valuation and apportionment of the marital estate. On remand, the District Court used market values of the marital assets and ordered a fifty-fifty division of proper-. ty, thereby increasing the wife's share from $84,197.50 to $153,433.90. The husband appeals that judgment. The wife has filed a cross-appeal which she asks this Court to dismiss if it is determined that the husband's assignments of error are without merit. I Did the District Court improperly value the cattle? The District Court adopted a value of $450.00 per head for the parties' cows and $727.50 per head for the calves. The husband contends that there is insufficient evidence in the record to support this finding and that the court failed to indicate how it arrived at these figures. At trial, both the husband and wife offered evidence of cattle values as of the stipulated date of September 1983. The husband offered a weekly livestock summary from September 17, 1982, which he contends supports his valuation of the calves at $200.00 per head. The wife offered documentation from cattle sales which took place in 1982 in Billings, Montana, at the Public Auction Yards. The February 1982 receipt indicates a sale of 34 mixed heifers in which the gross sales were $8,899.77, or $261.76 per head. Thus, the evidence offered by the parties supports a finding valuinq the calves between $200.00 and $261.76 per head. We conclude that the District Court's value of $227.50 per head for the calves is supported by the evidence. The husband also refers to the September livestock summary to support his valuation of the cows at $350.00 per head. The wife offered an April 1982 sales receipt from a sales yard which indicates a sale price for culled cows between $526.08 and $296.10 per head, with the average sale price of a culled cow at $283.46. While the District Court did not specifically refer to the wife's exhibit when making its finding regarding the value of the parties' cows, we hold that there is sufficient evidence in the record to support the District Court's valuation at $450.00 per head. Whi1.e this figure is significantly higher than the husband's of- fered value at $350.00 per head, there was evidence indicat- ing the top value of the COWS at over $500.00. This Court will not set aside the lower court's finding, which is not clearly erroneous, merely because one party wishes to have its valuation figures adopted instead of those arrived at by the court. I1 Did the District Court err in including as a marital asset the monies spent by the husband to maintain himself and two of the parties' minor children? The District Court found that the sole source of monies deposited into the ranch account was a commercial account with Norwest Rank, and that the ranch account was used to pay for the expenses of the marital estate. The total indebted- ness to Norwest Rank by virtue of the loans run through the ranch account as of September 1982 was $131,939.42. The parties agreed that the indebtedness, to the extent it repre- sented money borrowed for the benefit of the marital estate, would be deducted from the gross marital estate to arrive at the net marital estate. The District Court found that $22,352.24 of the funds in the ranch account was spent by the husband for his own benefit. It concluded that those funds were to he treated as a distribution hut were to be added back into the marital estate for purposes of determining the value of the gross marital estate. In its amended decree, the District Court stated that: . . . it is now apparent that there are some expen- ditures included in the $22,352.24 that represent a benefit to the marital estate and must now be backed out of that figure. In this category the court now finds it appropriate to include two-thirds of the groceries ($2,315.16), one-half of the utilities ($1,002.55), Jim Eastlick ($300.00), and two-thirds of the miscellaneous items ($457.76) for a total of $4,075.47 to be deducted. Thus, a total of $18,278.77 was considered as personal ex- penses of the husband to be added back into the marital estate. On appeal, the husband contends that it was error for the court to include - any amount of this money in the marital estate because the entire $22,352.24 was spent by him on living expenses for himself and two of the parties' minor children. The District Court has far-reaching discretion in re- solving property divisions and its iudgment will not be altered unless a clear abuse of discretion is shown. In re Marriage of Watson (Mont. 1987), 739 P.2d 951, 954, 44 St.Rep. 1167, 11?0. The husband now asks this Court to scrutinize the nature of the $22,352.24 in expenses as if the District Court had not done so. However, the court's find- ings indicate otherwise. It is clear from the District Court's detailed findings in the amended decree that the expenses which were not personal to the husband, but were expended on behalf of the marital estate, were considered separate and distinct and were treated as such. There is no evidence which would render the District Court's findings on this point clearly erroneous. We conclude that the court properly added $18,278.77 back into the marital estate to determine the value of the estate. I11 Did the District Court err in including as a marital asset the value of the irrigation pipe? The husband argues that it was error for the District Court to independently value the ranch property's irrigation pipe and include it in the gross marital estate since its value was presumably included in the value of the irrigated ranch property. The District Court adopted as the law of the case the real property values established at the first trial which were approved by this Court. Those values were based on appraisals which differentiated between irrigated land and dry land, the value of the irrigated land being significantly higher. At the first trial, the court did not independently value the pipe since it found that: . . . the pipe is not a separate and distinct item from the ranch in that it is an integral part of determining whether or not the ranch can be run with big fields as opposed to a multitude of small- er fields, and whether the land is more valuable as irrigated as opposed to less valuable as dry land crops. At the rehearing, the irrigation pipe was valued independent- ly of the real property at $6,379.00 and was included in the gross marital estate as personal property under "machinery." The husband's argument is based on his contention tha-t the ranch property could only he irrigated by irrigation pipe, so that the pipe should have no value independent of the irrigated land. However, this contention is not support- ed by the record. A report from one of the appraisers estab- lished that: Irrigation water is supplied by the Yellowstone Ditch Company. This farm has 18.34 shares of stock in this company. According to the company presi- dent, P. Yegen Jr. and Seth J. Kiber, one share allows the owner to one miner's inch of water which will irrigate 9.6 acres or a total in this case of 176.2 acres. The 1982 water cost is $5 per share. Delivery is - by gravity ditch - - and the method of irrigationis £1-ood. Stock water is supplied 6 the ~ellowstTne River, irrigation ditches, springs, and reservoirs. Domestic water is supplied by a well at the buildings. (Emphasis suppl-ied). Based on this evidence, we hold that it was not error for the District Court to independently value the irrigation pipe and to incl.ude it as personal property7 j . n the gross marital estate. IV Is the District Court attempting to punish the husband? It appears that the husband is dissatisfied with that portion of the decree which requires the ranch to be sold in the event that he cannot or would not pay to the wife her share of the net marital estate as scheduled. The decree requires that the ranch be listed for not less than $325,000 beginning in February of 1988, to be reduced in sale price by 5% twice a year until sold, and upon sale the proceeds shall first be distributed to the wife in the amount of $165,814.90. The husband argues that this arrangement is grossly unfair in light of a 40% reduction in value of the ranch property since 1982 due to drought conditions in Montana. It appears that the husband is now seeking to have the ranch valued at a price other than the September 1982 values. We are reminded that September 1982 was stipulated by the parties as the date of inventory and valuation for all of the marital assets. All of the parties' evidence concerning real property valuation relates to that date. The husband made no attempt to argue valuation or withdraw from the stipulation until after the District Court entered its final decree in 1988. The District Court was merely acting upon the evidence before it as stipulated by the parties. We conclude that the husband's final assignment of error is without merit. Because we find no merit in any of the husband's conten- tions, we will not address the wife's cross-appeal. The judgment is affirmed. We Concur: Chief J . tice Justices	January 17, 1989
3c09852d-d8d4-42a1-a473-64d7ef4b5dea	STATE v THIEL	N/A	88-043	Montana	Montana Supreme Court	TN THE SIJPREME COURT OF THE STATE OF MOI\?TANA STATE OF MONTANA, Plaint i f f and R e s p o n d e n t , -vs- GORDON T H I E L , 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 Seventh 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 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 : I r a E a k i 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 v 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 , V i c t o r G. K o c h , C o u n t y A t t o r n e y ; P h i l l i p N . C a r t e r , 5 D e p u t y C o u n t y A t t o r n e y , Sidney, M o n t a n a 6, 0 0 & c 3 S u b m i t t e d on B r i e f s : N o v e m b e r 1 7 , 1 9 8 8 D e c i d e d : February 3 , 1 9 8 9 ' C l e r k Mr. Justice William E. Hunt, Sr. , delivered the Opinion of the Court. Gordon Thiel appeals from the judgment of the District Court, Seventh Judicial District, County of Richland. We affirm in part and reverse in part the District Court's judgment. Two issues are presented for our consideration: 1. Whether fundamental fairness requires that we dismiss Counts I through XXIV; 2. Whether Thiel's constitutional rights were violated by the District Court's refusal to allow him to examine the file of the assigned social worker. We agree with Thiel's position on issue one and reverse the District Court's judgment with regard to Counts I through XXIV and dismiss those counts. We affirm the convictions on Counts XXV and XXVI. This case commenced in 1983. At that time, Thiel was charged with two counts of sexual intercourse without consent against his stepdaughter, J.P. Plea negotiations with the county attorney ensued. The parties agreed that Thiel's participation in a sexual offender's treatment program would be a condition of the plea agreement. Therefore, Thiel, before entering his plea, was evaluated by a psychologist to determine whether he was amenable to treatment. During the evaluation Thiel admitted to additional instances of sexual. misconduct, including the abuse of J.P. 's sibling, T.P., several times from 1980 through 1983. This information was transmitted to the county attorney and defense counsel durinq the course of plea negotiations. A seven year suspended sentence was agreed upon rather than a two or three year deferred sentence as was initially discussed. The record shews that the increase in t h e sentence recommendation was a direct result of the new information. In May, 1984, Thiel entered into a written plea agreement with the State. Pursuant to the agreement, Thiel pleaded guilty to two counts of sexual assault against J . P . and received a seven vear suspended sentence. Later in July or August, 1984, Thiel had contact with T.P. and sexually assaulted her. She did not report the assault at that time. In February or March, 1985, the Thiel family reunited but in fall of that year T.P. moved out. Thiel assaulted J . P . sometime in early 1986. The assault was not reported until October, 1986. When both J . P . and T.P. were interviewed by authorities, T.P. reported the 1984 assault and the numerous incidents occurring from 1980 to 1983 to which Thiel had already admitted during his psychological evaluation. In November, 1986, Thiel was charged with 26 counts of sexual intercourse without consent. Counts I through XXIV were based upon Thiel's numerous assaults against T.P. that occurred from 1981 through 1983. Count XXV was based on the 1984 assault against T.P. and Count XXVI was based on the 1986 assault against J.P. Before trial and prior to voir dire Thiel moved to dismiss the first 24 counts, arguing they had been the subject of the earlier plea bargain agreement. The District Court denied the motion. After the State rested its case, Thiel renewed the motion to dismiss. The court took the motion under advisement. Thiel was convicted on all counts with his motion unresolved. An evidentiary hearing on Thiel's motion was then held, after which the court issued findings of fact, conclusions of law, and an order denying the motion. The court sentenced Thiel to 20 years with all but 30 days suspended on each of Counts I through XXIV and, on Counts X X T T and XXVI, the court sentenced Thiel to ten vears each. It is from this conviction Thiel appeals. Thiel first contends that the State is barred from prosecuting Counts I through XXIV because these offenses were included in the scope of the 1 9 8 4 plea agreement. He argues that it is fundamentally unfair to prosecute him for offenses that were revealed and considered during plea negotiations and sentencing for the previous charges. We agree. The facts of this case demonstrate that Thiel's admission to a treatment program was a prerequisite to the 1 9 8 4 plea bargain with the State. In order to be accepted into such a program, Thiel was required to undergo an evaluation of his amenability to treatment. An indication of his amenability was his willingness to admit his past behavior. Unless the evaluator believed that he had admitted all of his offenses, Thiel would not be accepted to the program. If rejected by the program, plea negotiations would cease, and Thiel would face a prison sentence or fine. Hence, in order to ensure the continuance of negotiations, Thiel waived his right to remain silent and. underwent the evaluation. During the evaluation, Thiel revealed several additional sexual offenses, including the assaults on T.P. This information was communicated to the county attorney as well as counsel for the defense. As a result, the sentence agreed upon by Thiel and the county attorney was set at seven years suspended rather than two or three deferred as orginallj7 discussed. At the sentencing hearing, the State introduced copies of the psychological evaluation and a letter from the psychologist to the social worker in charge of the Thiel family case. These two documents contained references to offenses to which Thiel admitted during the evaluation. Thiel had few options other than to sacrifice his right to remain silent and reveal his entire past. His revelations were used to increase his sentence. Fundamental fairness forbids the State from now prosecuting him for offenses for which he has essentially already been punished. We therefore reverse the District Court's judgment with regard to Counts I through XXIV and dismiss those counts. Next, Thiel attacks the validity of his conviction on Counts XXV and XXVI, claiming he was denied a fair trial because he was not allowed to review the contents of the assigned social v~orker' s file. Thiel argues that the District Court violated his constitutional right to confront the witnesses against him when it refused to allow him to examine the entire file. Section 41-3-205, MCA, governs this issue and reads in pertinent part as follows: (1) The case records of the department of social and rehabilitation services, the department of family services and its local affiliate, the county welfare department, the county attorney, and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect shall be kept confidential except as provided by this section. Any person who permits or encourages the unauthorized dissemination of their contents is guilty of a misdemeanor. (2) Records may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds such disclosure to be necessary for the fair resolution of an issue before it. The constitutionality of 41-3-205, MCA, has not directly been determined by this Court. The United States Supreme Court, however, examined a similar statute in pennsylvania v. Ritchie (1987), 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40. The Court concluded that the defendant's right to confront his accusers - - was not violated by a Pennsylvania statute requiring that child abuse investigative files be kept confidential. The Court stated that as long as the defendant was not. prevented from cross-examining the victim, his right to confront witnesses was not violated. Ritchie, 480 U.S. at 54, 107 S.Ct. at 1000. Thiel was given wide latitude at trial to cross-examine all witnesses against him. We agree with the position of the Court in Ritchie and hold that Montana's child abuse confidentiality statute as it applies to file review does not violate a defendant's right to confront his accusers. Thiel also hints that disclosure of the full file is compulsory according to law because it may contain exculpa- tory evidence. This, too, was considered by the United States Supreme Court in - - Ritchie. The Court concluded that as long as the statute allowed the trial court to review the case worker's files in camera and to release material information from the file to the accused, the defendant's interest in ensuring a fair trial was fully protected. Ritchie, 480 U.S. at 60, 107 S.Ct. at 1003. The Court expressed the policy underlying this procedure: To all-ow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting its child abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child's feelings of vulnerability and guilt, and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality . Relatives and neighbors who suspect abuse also will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth--like all other States--has made a commendable effort to assure victims and witnesses that they mav speak to the CYS counselors without fear of general disclosure. The Commonwealth's purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result. Ritchie, 480 U.S. at 60-61, 107 S.Ct. at 1003-04. At trial, the District Court twice examined in camera the social worker's file. As does the highest court in the land, so do we think that the appellant's rights were fully protected by the District Court's in camera study of the social worker's file. We affirm on this issue. We affirm Thiel's conviction on Counts XXV and XXVI, reverse the judgment on Counts I through XXIV, and remand for proceedjngs in accordance with this opinion. We Concur: / Judge sittinq for Justice trict Judge, s i t f k b g for Justice R. C. McDonough -7-	February 3, 1989
9abb4427-9abd-4cba-96a6-1383a7de0a45	KOOPMAN v BAGGETT	N/A	88-323	Montana	Montana Supreme Court	N o . 8 8 - 3 2 3 I N THE StJPREME COURT OF THE STATE OF MONTANA 1 9 8 9 ROGER KOOPMAN, d/b/a CAREER CONCEPTS, P l a i n t i f f and A p p e l l a n t , -vs- P A T R I C I A FAGGETT, D e f e n d a n t , R e s p o n d e n t and C r o s s - 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 G a r y , Judge presiding. COUNSEL OF RECORD: For A p p e l l a n t : White & S e e l ; K a r l P. S e e l , R o z e m a n , M o n t a n a For R e s p o n d e n t : L a n d o e , B r o w n , P l a n a l p & Kornrners; J a m e s M . K o m m e r s , B o z e m a n , M o n t a n a C, Filed: 2 , . . . S u b m i t t e d on B r i e f s : N o v . 17, 1 9 8 8 D e c i d e d : January 1 0 , 3 ,-I ED SMITH - - C l e r k Mr. Justice John C. Sheehy delivered the Opinion of the Court. The District Court of the Eighteenth Judicial District, Gallatin County, granted judgment after bench trial in favor of Roger Koopman, d/b/a Career Concepts, and against Patricia Baggett on Koopman's claim based on an employment agency contract, but the District Court denied Koopman's claim for attorney's fees and costs. Koopman appealed to this Court from the denial of attorney's fees and costs, and Patricia Baggett cross-appealed from the judgment of the District Court that she was liable for an employment fee under the employment agency contract. We reverse the District Court's determination that Koopman was entitled to an employment fee, affirm the denial of attorney's fees and costs to Koopman, direct that attorney's fees and costs be awarded to Patricia Baggett, and remand for that purpose. The principal issue is whether Koopman, d/b/a Career Concepts, is entitled to a fee for emplovment agency services under the facts of this case. Patricia Baggett moved to Montana from Georgia, with her husband, in November 1986. She entered into an applicant contract with Career Concepts on December 9, 1986. After entering into the written agreement with Career Concepts, Patricia Baggett also went to the Montana Job Service in Bozeman, Montana. On January 13, 1987, Patricia Baggett heard on the radio about a job she might be interested in through a Job Service advertisement. She called the Job Service to inquire. She attended a seminar that afternoon conducted by the Job Service where she learned that the opening was with KBOZ, a local Eozeman radio station. The next morning, January 14, 1987, Patricia Baggett went to the Job Service office, where she obtained a referral card. At 9 o'clock a.m. of the same morning, Harvey Hasler of Career Concepts telephoned the defendant to inform her of the job opening at KROZ. At 11:30 a.m. of the same morning, Patricia Baggett telephoned KBOZ to set up an appointment. The KBOZ employee informed the defendant that Career Concepts had already called and set an interview for her at 4 o'clock that afternoon. At about noon, Baggett learned from her husband that Career Concepts had called about the 4 p.m. interview. At 3:30 p.m. in the afternoon the Career Concepts employee again called Baggett and they discussed the KBOZ interview. From conflicting testimony, the District Court found that Career Concepts had arranged for the interview for Patricia Baggett prior to the time that she called KBOZ. After the 4 o'clock interview and a subsequent interview, Baggett accepted the position with KBOZ. When she refused to pay the fee und-er the contract, Koopman, d/b/a Career Concepts, sued her for the employment fee in the Justice Court in Gallatin County. Baggett cross-claimed for an amount of damages outside the jurisdiction of the Justice Court, and so the cause was removed to the District Court for a decision. There the District Court decided as we have set out above, from which this appeal has resulted. The legal issue in this case swirls around language in the employment contract signed by Baggett and prepared and formulated by Koopman. The essence of the argument is whether the Job Service could be construed as an "employment agency" under the terms of the contract so as to preclude the collection of the employment fee by Career Concepts. The District Court, relying on the definitions in S 39-5-502, MCA, determined that the Job Service was not an "employment agency;" that Career Concepts had completed its contract; that thereby Career Concepts was entitled to the employment fee, but not to an award of attorney's fees and costs. Although the employment contract provided for attorney's fees and costs to the prevailing party, the court considered that provision to be a penalty, and without sufficient notice being given to the person signing the employment contract that it was contained in the contract. Free state employment services are conducted through the "Job Service" offices, as they are popularly called. The state employment offices exist because of the passage by Congress in 1933 of the United States Employment Act. (29 U.S.C.A., § 49 et seq.) Originally called the Wagner-Peyser Act, the United States Employment Service Act was intended to develop a national system of employment offices to assist persons in obtaining employment; its primary purpose is to connect an unemployed worker with a job. It is especially directed to migrant workers. See Frederick County Fruit Growers Association v. Marshall (1977 D.C. Virginia), 436 F.Supp. 218. The Wagner-Peyser Act provides for federal monies to be appropriated for the purposes of the Act, and that in order to obtain the benefits of appropriations under the Act, a . state shall, through its legislature, accept the provisions of the Act, and designate or authorize the creation of a state agency vested with all power necessary to cooperate with United States Employment Service Act. 29 U.S.C. S 49 (c) . Further, any state desiring to receive the benefits of the Act, must submit detailed plans for carrying out the provisions of the act within the state. 29 U.S.C., § 49(g). The establishment of employment service offices through the several states did not come about by accident. In Ribnik v. McBride (1927), 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 93.3 the United States Supreme Court heard a case involving New Jersey's Employment Agency Law. The law prohibited the charging of fees by private employment agencies over a certain amount, and in effect was considered by the Supreme Court to be price--fixing by the state. The Court invalidated the law on the basis of due process under the Fourteenth Amendment. Eowever a dissent in that case was written describing the evils of private employment agencies and suggested the creation of a federal system of public employment agencies. The dissent in Ribnik echoes what was said by Justice ~randeis in Adams v. Tanner (1916), 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336. There, the majority set aside a law of the state of Washington regulating employment agencies. Justice Brandeis castigated in his dissent the inequities and wrongful practices of private employment agencies at the time . In creating the United States Employment Bureau, under the Act, in 1933, Congress set out the scope of the law in 29 U.S.C., § 49(b): It shall be the province and duty of the bureau to promote and develop a national system of employment offices for men, women and juniors who are legally qualified to engage in gainful occupations, including employment, counseling, and placement services for handicapped persons, to maintain a veterans service to be devoted to securing employment for veterans, to maintain a farm placement service, to maintain a public employment service for the District of Columbia, and assist and establish and maintaining systems of public employment offices in the several states. . . . The state of Montana joined in the national effort, in 1937, when the legislature passed what is now § 39-51-307, MCA, requiring the Montana Department of Labor to "establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this chapter and for the purpose of performing such duties as are within the purview of the act of conqress entitled [the Wagner-Peyser Act] ." In 1971, the legislature adopted "The Employment Agency Act" to regulate private employment agencies. Koopman, d/b/a Career Concepts, has qualified as a licensee under that Act. Career Concepts is an "employment agency" under the Act because its gross or net income is derived from fees received from applicants for offering, promising, procuring or attempting to procure empl-oyment for applicants. Section 39-5-102 (I), MCA. The Employment Agency Act also defines the term employment agency as follows: (c) The term "employment agency" does not include labor unions organizations, temporary service contractors, propriety schools, musical booking services, agents for professional athletes, or the Montana State Employment Agency. (Emphasis supplied. ) Section 39-5-102 (1) (c) , MCA. Therein lies the nub of the controversy here. The Employment Agency Act also provides for the payment of fees when an applicant is referred by two agencies. 39-5-310. Payment --- of fee when applicant referred & two agencies. When an applicant is referred to the same position by two employment agencies, the fee shall be paid to the agency that first contacted the applicant considering the specific opening, provided that such agency has given the name of the employer to the applicant and has arranged an interview or submitted a resume to the employer within ten days of such contact with the applicant. The contract signed by Patricia Baggett with the employment agency, Career Concepts, included a paragraph which mirrors S 39-5-310, MCA. The contractual provision follows: 7. When an applicant is referred to the same position by two employment agencies, the fee shall be paid to the agency that first contacted the applicant concerning the specific opening, provided that such agency has given the name of the employer to the applicant and has arranged an interview or submitted a resume to the employer within ten days of such contact with the applicant. Koopman contends, and the District Court agreed, that since by definition under the Employment Agency Act, the Job Service Office acting as a Montana State Employment Agency, is not an "employment agency," that therefore the first reference to Baggett of this specific job by the Job Service is of no concern. In effect the District Court held that Career Concepts was the only "employment agency" under the Act which referred her to the job opening and therefore she must pay Career Concepts. That interpretation of the term "employment agency" in the employment contract is wrong for two reasons: (1) The purpose of the definition of "employment agency" under Montana's Employment Agency Act is to define those private agencies that must be licensed and regulated by the Department of Labor. The Job Service Offices, established by an act of the legislature require no license; and (2) public policy requires the recognition of the Job Service as a full employment agency on which applicants for employment can rely. A review of the federal and state statutes relating both to the Job Service Offices existing in Montana and private employment agencies shows that each of these exist for the same ultimate purpose, to connect an unemployed applicant with a job. It is the public policy of this state that the Job Service Offices shall exist side by side with any private employment agencies. Moreover, the Job Service agency is subsidized by the taxpayers as a free employment service which any citizen has the right to utilize. Therefore an interpretation of the employment contract which runs counter to the purpose for the existence of the state employment service runs counter to the public policy of the state. There is no question in this case that Koopman has insisted for quite some time that a Job Service referral is not a referral by an "employment agency" when the interpretation of his Career Concepts contract involves a collection of a fee where the Job Service office has also made a referral. On the basis of the contract, he has sued applicants in Justice Courts 112 times since 1983, and 12 times in the District Court. We do not know if all of those suits involved the precise interpretation of the contracts in relation to the facts here, but if they do, they cause an intolerable burden to be placed upon the court system in Gallatin County. We therefore interpret the State Employment Agency Act to mean that the State Employment Offices (Job Service offices), which "procure or attempt to procure employment for applicants" are an "employment agency" even though they need not be licensed as an employment agency under the Employment Agency Act. Therefore, in construing Career Concepts1 contract, a Job Service referral must be regarded as one by an employment agency. When that is understood, the Career Concepts1 contract can be properly interpreted. To be entitled to a payment of a fee under 5 39-5-310, supra, Career Concepts must qualify on two of three possibilities when an applicant is referred to the same position by two employment agencies: One, Career Concepts must be the agency that first contacted the applicant concerning the specific opening, and two, it must give the name of the employer to the applicant and arrange an interview, or three, submit a resume to the employer within 1 0 day^ of such contact with the applicant. In this case, Career Concepts is not the agency that first contacted the applicant concerning the specific opening, since she first learned of it through the Job Service Office. Accordingly under the contract and the statute, Koopman, d/b/a Career Concepts, is not entitled to an employment applicant's fee. The contract between Career Concepts and Patricia Baggett provides that Career Concepts, in the event of a breach of the agreement, is entitled to reasonable fees, costs, and expenses incurred including attorney's fees and court costs. Since it is not the prevailing party, in this case, Koopman, d/b/a Career Concepts, is not entitled to an attorney's fee, and his appeal must be denied. On the other hand, because of the reciprocity provisions of 5 28-3-704, MCA, Raggett is entitled to attorney's fees and costs for which we remand for determination to the District Court. We deny Baggett's request to return the cause for determination of punitive damages. Accordingly, the judgment in favor of Koopman d/b/a Career Concepts and against Patricia Baggett is reversed; and the cause is remanded to the District Court for the determination of attorney's fees and costs in favor of Patricia Ragqett . We Concur: 1 1 i Justice I 1 i	January 10, 1989
b10e94ce-a67a-4b7a-8c64-d2b5749b2bd3	Ryffel Family Partnership Ltd. v. Alpine Country Construction, Inc.	2016 MT 350	DA 15-0805	Montana	Montana Supreme Court	DA 15-0805 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 350 RYFFEL FAMILY PARTNERSHIP LTD., Plaintiff and Appellant, v. ALPINE COUNTRY CONSTRUCTION, INC., Defendant, Appellee, and Cross-Appellant, ____________________________________________ APLINE COUNTRY CONSTRUCTION, INC., Counter-Claimant, Appellee, and Cross-Appellant, v. RYFFEL FAMILY PARTNERSHIP LTD., Counter-Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DV 08-372C Honorable John C. Brown, Presiding Judge COUNSEL OF RECORD: For Appellant: Rhett B. Nemelka, Nemelka Law, P.C., Bozeman, Montana For Appellee: Jesse Beaudette, Nathan A. Fluter, Bohyer, Erickson, Beaudette & Tranel, PC, Missoula, Montana 12/28/2016 Case Number: DA 15-0805 2 Submitted on Briefs: September 28, 2016 Decided: December 28, 2016 Filed: __________________________________________ Clerk 3 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Plaintiff and Appellant Ryffel Family Partnership, Ltd. (Ryffel Partnership) appeals from a jury verdict entered in the Eighteenth Judicial District Court, Gallatin County. The jury found that Ryffel Partnership had breached two oral contracts with the Appellee Alpine Construction (Alpine), but awarded zero damages. The first agreement was entered into in January of 2007 and the second agreement was entered into in September of 2007. Although awarding zero damages for Ryffel Partnership’s breach, the jury found Ryffel Partnership was unjustly enriched by Alpine’s labor and awarded Alpine $50,348.18 in damages. Finally, the jury awarded $25,000 to Alpine for Ryffel Partnership’s breach of the covenant of good faith and fair dealing. ¶2 The District Court issued an order pursuant to M. R. Civ. P. 59, amending the judgment to assign the jury’s damages award for unjust enrichment to its finding that Ryffel Partnership breached its contract. The District Court did so upon the basis that breach of contract and unjust enrichment are inconsistent legal theories of recovery. The District Court’s order also struck the jury’s award of $25,000 for breach of the covenant of good faith and fair dealing, concluding no evidence in the record supported the award. Alpine filed a motion to amend the judgment for pre-judgment interest pursuant to § 27-1-211, MCA, which the District Court denied by allowing the motion to expire. In its appeal, Ryffel Partnership seeks a new trial, alleging the jury’s verdict was inconsistent and that there was not substantial evidence to support breach of the second agreement entered into in September of 2007. Ryffel Partnership does not raise any issue regarding the first agreement entered into in January of 2007, which the jury found it had 4 also breached. Alpine cross-appeals the District Court’s denial of pre-judgment interest. We affirm the District Court’s ruling, including its denial of pre-judgment interest, and deny Ryffel Partnership’s appeal to review the verdict for lack of substantial evidence. We restate the issues on appeal as follows: 1. Whether the jury’s verdict regarding the parties’ second agreement was supported by substantial evidence. 2. Whether the District Court erred in denying Ryffel Partnership’s motion for a new trial based on an inconsistent or illegal jury verdict. 3. Whether the District Court erred in denying Alpine’s motion for pre-judgment interest pursuant to § 27-1-211, MCA. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Although James Ryffel (Ryffel) was born in Bozeman, Montana, Ryffel Partnership is a Texas-based partnership consisting of Ryffel, his wife, and a family trust as partners. Ryffel often travels to Montana and purchased the property at issue because of its scenic nature and beauty, along with its suitability as a location for a family home. Part of the property’s appeal to Ryffel and his wife were the statuesque “specimen trees” and the “hilly knoll” upon which many of these trees were located. ¶4 Ryffel and his wife wanted to build a home on the property that would, among other things, look upon the beauty of the knoll and its trees. To implement that vision, Ryffel hired Steve Hanson (Hanson) as a general contractor to oversee the building and logging work the project would require. Hanson is an experienced builder of custom log homes. Ryffel’s testimony reflects that, overall, he wanted to cut only the trees necessary to build a road on the property to the home, the trees to build the home itself, thin those 5 trees that then remained on the property, clear those trees that were dead and fallen, and then preserve specimen trees greater than 24 inches in diameter. To those ends, some trees were specially marked for use as house logs in the upcoming construction of the Ryffel Partnership residence on the property. ¶5 Bob Kammers (Kammers) is one of the owners of Alpine Construction. Seeking the potentially substantial logging business on the Ryffel Partnership property, Kammers met Hanson through a mutual acquaintance, Scott Cooper (Cooper). Cooper, Kammers, and Hanson all gathered on the Ryffel Partnership property in January of 2007, and discussed the job. Hanson hired Alpine for logging work on the property: logs were to be delivered to the upper landing where the house would be built, and the thinning would have to be done within parameters, i.e. no specimen trees greater than 24 inches would be cut. Hanson hired Alpine in January of 2007. He showed Kammers where the house logs were and where they should be placed for use in construction. ¶6 Although Hanson could not remember if Kammers gave him a rate sheet for the work, Cooper and Kammers both testified that the terms of the agreement were for Alpine to be paid by the hour. Kammers believed that an hourly rate was the only acceptable payment method under the circumstances because all of the “good logs” were to be used for the Ryffel Partnership house construction, while all of the “butts, tips, and crooked logs” were to go to the mill. However, Kammers contended that it was impossible for him to determine beforehand what should stay on the property, and what should go to the mill, making it difficult to estimate the labor on a lump sum basis. Kammers testified that payments from what he took to the mill were to be offset against 6 Alpine’s costs, and that Alpine would charge a flat fee for delivering each load to the mill. Kammers also testified that Hanson never mentioned the specimen tree restrictions. ¶7 Hanson explained that Alpine performed side jobs as well. According to Hanson, Alpine hauled materials and equipment, and cleared snow and ice from the property’s road to ensure timely deliveries of material and the safe traversal of workers constructing the house. Alpine also cleared trees along the road, and hauled logs that would later serve as trusses for the home. Alpine’s work on the road was frequent, as the road was cleared of materials every time someone needed to travel upon it—at least once or twice per day. Alpine also backfilled around the house’s foundation. ¶8 Alpine sent an invoice dated February 4, 2007, to Ryffel and Hanson for road work. The invoice billed an hourly rate, which Ryffel and Hanson testified was acceptable, because the road work was considered “side work.” Alpine sent another invoice for hourly work on March 1, 2007, for building a de-barker. Ryffel testified that this too was considered side work. Ryffel stated that he received several such invoices, dated between May and September, 2007, for hourly labor and equipment. ¶9 Ryffel questioned the fairness of one of those invoices for $97,000 and so asked Kammers to meet to discuss it. This meeting would form the basis of the parties’ second agreement. At that meeting in September 2007, Kammers and Ryffel discussed the invoices accrued so far, and attempted to concur on the terms of their agreement going forward. Ryffel was concerned in part, because there was no set agreement between Ryffel Partnership and Alpine concerning a rate for the logging work. Hanson was convinced that Alpine was not to be paid an hourly rate for logging, a fact supported by 7 Ryffel Partnership’s expert witness who believed that an hourly rate for logging is unusual in the industry. Ostensibly, under the terms of this second agreement and according to Kammers, Alpine would now log trees on the ground, haul them to the mill, deduct the cost of hauling them from the money received at the mill, and then evenly split the remaining proceeds with Ryffel Partnership. Kammers’ testimony indicated that Ryffel Partnership’s share of the proceeds was to be applied first to any outstanding balance owed to Alpine. Kammers also agreed Alpine would no longer bill by the hour. ¶10 Ryffel’s memory of that meeting and the terms of the resulting agreement differed from Kammers’. In Ryffel’s recollection, he had only agreed to compensate Alpine with a share of the logging proceeds, not an hourly rate. Additionally, he understood that Kammers had encountered difficulty removing felled trees from a steep area and so needed to purchase a line machine. Ryffel testified that he agreed at that meeting to pay $45,000 for a line machine which Kammers would then use to haul logs from the base of the knoll for transportation to the mill. Ryffel’s understanding was that Kammers would then transport the logs to the mill, and proceeds therefrom would be evenly split. This meeting and agreement, in Ryffel’s view, nullified any past agreements the parties may have had and that going forward no more trees would be cut on the property at all, including “specimen trees” on the knoll. ¶11 Ryffel sent Alpine the check for $45,000, along with a letter that attempted to memorialize the terms of the agreement reached in the September meeting with Kammers. The letter, never signed by Kammers, stated that “[t]his agreement will replace any previous agreements or invoices.” However, the letter was cursory for a 8 document purporting to replace a timber harvesting agreement and a series of past invoices. The only definite term the letter addressed was that 50% of any log sale was to be forwarded to Ryffel’s office, and even that term was hobbled by a vague description of what logs were to be included as part of the deal. Although the letter confirmed that the check for $45,000 was enclosed, it did not specify any use for the funds—no line machine was mentioned. The letter presented no other terms or significant details and was in fact only six sentences long, including the sentence about enclosing the check. ¶12 Kammers’ testimony differed from Ryffel’s recollection as to these facts regarding their second agreement. Kammers’ testimony indicated he never told Ryffel he needed a line machine and he never asked Ryffel for $45,000 to purchase the line machine—Ryffel offered it. Furthermore, Kammers testified that he did not use the check to purchase a line machine because he had already purchased one prior to the meeting with Ryffel; the meeting did not eliminate any prior invoices due because Ryffel Partnership’s balance due at the time was substantial; and hauling charges were not to come out of Alpine’s share of the logging proceeds. Thus, according to Kammers, the letter Ryffel sent did not accurately reflect at all the agreement reached at the meeting. ¶13 Despite the ambiguities, vagaries, and misunderstandings arising out of these oral agreements, Alpine sent invoices and Ryffel Partnership sent payments. Alpine’s bookkeeper, Kammers’ wife Shirley Kammers (Shirley), testified at trial to invoices that were paid and invoices that were left unpaid. She testified that some invoices were paid in full: an invoice for $6,464.32 and one for $19,746. Also, some payments from the logging proceeds were applied to Ryffel Partnership’s outstanding running balance: a 9 payment for $6,292.48 and one for $10,005.18. Ryffel Partnership’s account was similarly credited $27,250 when Alpine needed to purchase equipment from Ryffel Partnership. Additionally, Alpine applied the check for $45,000 to a series of invoices with outstanding balances, thereby reducing the total amount Ryffel Partnership owed to $90,902.20. ¶14 This pattern of work, invoices, credits, and fluctuating balances continued through the end of September 2007, without any written agreement between the parties, and in spite of Shirley’s and Kammers’ failed attempts to contact Ryffel via telephone to discuss his letter. Additionally, the record is devoid of written attempts by Alpine to discuss the letter: Alpine sent no emails, letters by post, or faxes to clarify or repudiate Ryffel’s letter. Nevertheless, Alpine continued to log and clear the land, generate invoices, assess Ryffel Partnership the hauling costs, deduct hauling costs from the logging proceeds, and apply Ryffel Partnership’s share of those proceeds toward invoices which remained outstanding. In the end, Shirley’s testimony reflected that, after she had applied all of the logging credits, Ryffel Partnership’s account still had a balance due of $49,281.12, which Ryffel Partnership never paid. After Alpine applied finance charges through April of 2008, the amount totaled $50,348.18. In contrast, by calculation of Ryffel Partnership’s expert, Alpine owed Ryffel Partnership $41,105.88 from the sale of the logs. ¶15 The misunderstandings and nebulous terms of these oral agreements culminated in the instant suit when Ryffel and his family visited the property in December of 2007, for Christmas. Ryffel was appalled to see that the specimen trees on the knoll, which in his remembrance had been specifically protected, were now gone from the property. Hanson 10 testified that he had not authorized Kammers to cut them, but Kammers did not think he needed Hanson’s authorization to do so. Kammers also believed that the logging plan had changed under the oral agreement in September, which Ryffel’s letter had attempted to memorialize. Kammers’ memory at trial was that the line machine’s whole purpose was to remove trees from the steep downslope of the knoll, and that regardless, many of those specimen trees had already been removed prior to the September meeting with Ryffel. Whatever the reason for it, Kammers admitted he was the one who had removed them. ¶16 In the trial that followed, the jury was instructed to find whether either of the parties had breached either of two oral contracts between Alpine and Ryffel Partnership, through its representative officer, Ryffel—one agreement arising from the initial meeting of Kammers, Hanson, and Ryffel in January of 2007; and one from the meeting in September of 2007 between Kammers and Ryffel. The jury was also tasked with deciding whether either party had been unjustly enriched, and to what extent, if any, the parties had suffered damages from either a breach of contract or unjust enrichment. The jury found in favor of Alpine—that Ryffel Partnership had breached both its January and September, 2007 oral contracts, but that Alpine should be awarded no damages for either breach. However, the jury also found that Ryffel Partnership had been unjustly enriched by accepting work done by Alpine on its property, for which it did not provide compensation. For that unjust enrichment, the jury awarded $50,348.18, the same sum reflected in Alpine’s books after finance charges were added, as of April 2008. Last, the 11 jury found that Ryffel Partnership had breached the implied covenant of good faith and fair dealing, for which the jury awarded $25,000 in damages. ¶17 After the jury rendered its verdict, Alpine filed a motion under M. R. Civ. P. 59 and 60 to amend the judgment to include pre-judgment interest, upon which the trial court did not act, and so was deemed denied. On October 8, 2015, Ryffel Partnership filed its own Rule 59 Motion for new trial, or alternatively, amendment of the judgment. Ryffel Partnership contended that the jury’s award of damages for unjust enrichment, coupled with a finding that both oral contracts were breached, constituted manifest legal error, since breach of contract and unjust enrichment are mutually exclusive theories of recovery. The District Court, acknowledging that breach of contract and unjust enrichment are incongruous findings in the same judgment, denied Ryffel Partnership’s request for a new trial or elimination of the award, but amended the jury’s verdict by assigning the $50,348.18 in damages awarded for unjust enrichment to the finding for breach of contract. The court also vacated the jury’s award of $25,000 for breach of the implied covenant of good faith and fair dealing, as it would have been an impermissible double recovery for Alpine and unsupported by any evidence of additional damages suffered. ¶18 Ryffel Partnership appeals, alleging that the District Court erred by denying the motion for a new trial and that the jury’s verdict regarding the parties’ second agreement was not supported by substantial evidence. Alpine asks this Court to affirm the District Court’s denial of a new trial and cross-appeals, alleging that the trial court erred by 12 denying Alpine’s motion after trial for pre-judgment interest pursuant to § 27-1-211, MCA. STANDARDS OF REVIEW ¶19 This Court reviews a district court’s order to grant or deny a new trial for manifest abuse of discretion. Armstrong v. Gondeiro, 2000 MT 326, ¶ 17, 303 Mont. 37, 41, 15 P.3d 386, 389. To overturn the ruling of the lower court, the abuse of discretion must materially affect the substantial rights of the complaining party. Lopez v. Josephson, 2001 MT 133, ¶ 16, 305 Mont. 446, 449, 30 P.3d 326, 329. ¶20 A district court’s denial of a motion to amend pursuant to M. R. Civ. P. 59 is reviewed for an abuse of discretion. Lee v. USAA Cas. Ins. Co., 2001 MT 59, ¶ 27, 304 Mont. 356, 362, 22 P.3d 631, 636. “The test for abuse of discretion is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” Lee, ¶ 27 (citation omitted). ¶21 A denial of prejudgment interest is a question of law, which we review to determine if the district court’s interpretation is correct. Ramsey v. Yellowstone Neurosurgical Assocs., P.C., 2005 MT 317, ¶ 18, 329 Mont. 489, 125 P.3d 1091. DISCUSSION ¶22 1. Whether the jury’s verdict regarding the parties’ second agreement was supported by substantial evidence. ¶23 Ryffel Partnership filed a Motion for New Trial or Amendment of Judgment, arguing that there was insufficient evidence to justify the jury’s damages award of $25,000 for Ryffel Partnership’s breach of the implied covenant of good faith and fair 13 dealing. The trial court found that this argument had merit because the award would be an impermissible double recovery for Alpine and, accordingly, granted Ryffel Partnership’s request that the award be vacated. However, Ryffel Partnership never asserted that there was not substantial evidence supporting the jury’s determination that Ryffel Partnership breached the second agreement, nor did it argue waiver or accord and satisfaction as defenses. ¶24 We have cautioned litigants that this Court strongly recommends that challenges to a verdict’s lack of evidence be first brought before the district court via post-trial motions, before reaching us on appeal. D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 46, 352 Mont. 435, 218 P.3d 827. This is a long-standing policy, which some jurisdictions require as a prerequisite to appeal. Four Beat, ¶ 46 (citing Napier v. Jacobs, 429 Mich. 222, 414 N.W.2d 862, 864-65 (Mich. 1987); Cecil v. Smith, 804 S.W.2d 509, 510-11 (Tex. 1991); Great Atlantic and Pacific Tea Co., Inc. v. Sealy, 374 So.2d 877, 880-81 (Ala. 1979); McAdams, Inc. v. Doggett Leasing Co., Inc., 681 S.W.2d 406, 407 (Ark. App. Div. 1 1984). Although this policy is not a requirement in Montana, such post-trial motions “‘serve as an appropriate first step for contesting an unfavorable verdict and . . . it would be best to afford the trial court that opportunity to reevaluate its rulings.’” Four Beat, ¶ 46 (quoting Stauffer Chemical Co. v. Curry, 778 P.2d 1083, 1103-04 (Wyo. 1989). As a result, this Court generally will not address an issue or new legal theory raised for the first time on appeal. Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 17, 345 Mont. 368, 191 P.3d 435 (additional 14 citation omitted). We will not unfairly fault a trial court for failing to rule correctly on an issue that it was not asked to consider. Becker, ¶ 17. ¶25 We observe also that although Ryffel Partnership did raise a sufficiency of the evidence argument regarding the jury’s damages award for breach of the covenant of good faith and fair dealing in its Rule 59 motion, it never argued to the District Court that there was insufficient evidence to support the jury’s determination that there was a breach of the second agreement. We cannot conceive of how the issue framed to the trial court below—a lack of substantial evidence to support a finding of a breach of good faith and fair dealing—could be considered as a challenge to the sufficiency of the evidence to support the jury’s verdict that the second agreement was breached by Ryffel Partnership. Nonetheless, § 25-11-102 (6), MCA, “does invest this Court with the ability to review . . . challenge[s] to the jury’s verdict on the basis of insufficiency of the evidence.” Four Beat, ¶ 44. This statute reads in pertinent part: 25-11-102. Grounds for 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: . . . (6) insufficiency of the evidence to justify the verdict or other decision or that it is against law[.] ¶26 There was sufficient evidence presented for the jury to find Ryffel Partnership breached the second agreement. An oral contract is enforceable if the four elements of a contractual agreement are met: (1 ) identifiable parties capable of contracting; (2) consent of those parties; (3) a lawful object; and (4) sufficient consideration. Section 28-2-102, 15 MCA; Keil v. Glacier Park, Inc., 188 Mont. 455, 460, 614 P.2d 502, 505 (1980). In making this determination, we must view the evidence in the light most favorable to the prevailing party. Lee v. Kane, 270 Mont. 505, 511, 893 P.2d 854, 857 (1995). The prevailing party is entitled to any reasonable inference that can be drawn from the facts. Sandman v. Farmers Ins. Exc., 1998 MT 286, ¶ 41, 291 Mont. 456, 969 P.2d 277. ¶27 Ryffel and Alpine are identifiable parties capable of contracting and testified that they reached an agreement when they met in September 2007. Further, logging and other construction work is a lawful object of a contract. Finally, Ryffel had trees on the property removed and thinned, in addition to other work being performed. Alpine received payment for its work. Thus, though the parties disputed its terms, there was sufficient evidence for the jury to find that all the elements of a contract existed. It was for the jury to weigh and resolve conflicts in the evidence, to judge the credibility of the witnesses, and to make factual determinations necessary to render a verdict. Sandman, ¶ 45. The evidence presented to the jury, consisting of both testimony of the parties and exhibits, was sufficient to support its findings that Ryffel breached the second agreement and that Alpine was damaged. ¶28 Ryffel Partnership also argues waiver or accord and satisfaction as a basis to reverse the jury’s breach of contract determination respecting the second agreement. Ryffel Partnership maintains it argued all along that by cashing the check for $45,000, Alpine agreed to the terms as represented therein. However, the jury heard evidence supporting an alternate interpretation of events. By Ryffel’s own testimony, he believed the check for $45,000 was meant for the purchase of a line machine, not as satisfaction of 16 all prior invoices. Further, Kammers’ cell phone records showed that he had at least once attempted to contact Ryffel to discuss the letter. Shirley testified, too, that she attempted to contact Ryffel, but was only able to speak with his secretary. We find this evidence substantive enough for the jury to have found in favor of Alpine, and to have rejected the waiver, accord and satisfaction argument Ryffel Partnership now presents on appeal. ¶29 2. Whether the District Court erred in denying Ryffel Partnership’s motion for a new trial based on an inconsistent or illegal jury verdict. ¶30 A district court may grant a new trial “for any reason for which a new trial has heretofore been granted in an action at law in Montana state court[.]” M. R. Civ. P. 59(a)(1)(A). A verdict may be vacated and a new trial granted when an aggrieved party’s substantial rights are affected by a verdict that is against the law. Section 25-11-102(5)-(7), MCA. “When a jury’s verdict is logically impossible and simply cannot be reconciled with the evidence, argument and legal theories presented at trial, the constitutional rights of the litigants to a fair trial requires [sic] that a new trial be ordered.” Four Beat, ¶ 46. An irreconcilability of evidence, argument, and legal theory is rare, however, and will be found only in very limited circumstances. Four Beat, ¶ 46. ¶31 Four Beat exemplifies those infrequent circumstances. In Four Beat, Four Beat and Sierra—parties who were seeking to develop prospects for the acquisition or development of oil and gas—operated their venture in part based on a letter. Four Beat, ¶¶ 4-6. The jury found this letter did not constitute a contract between them. Four Beat, ¶ 17. This finding should have defeated Four Beat’s claim, which was “premised solely upon the assertion that the Letter constituted a contract[.]” Four Beat, ¶ 38. However, the 17 jury also awarded Four Beat $2.5 million for Sierra’s breach of the letter. Four Beat, ¶ 17. Even though there was arguably sufficient evidence for the jury to conclude that Four Beat suffered those damages as a result of the events contemplated in the letter, Four Beat could have been entitled to the damages award only if the jury had also found the letter created a contractual obligation from Sierra to Four Beat. Since the jury had found the opposite, that no contract existed between them, we reversed and remanded for a new trial because we found the verdict to be inconsistent, logically impossible, and incapable of reconciliation with the evidence, argument, and legal theories presented at trial. Four Beat, ¶ 46. In our analysis, we examined prior case law covering inconsistent verdicts: Rudeck v. Wright, 218 Mont. 41, 46, 709 P.2d 621, 624 (1985) (affirming the District Court’s granting of a new trial where the jury’s verdict was totally inconsistent and contrary to the mandates of the law); Abernathy v. Eline Oil Field Servs., Inc., 200 Mont. 205, 217, 650 P.2d 772, 779 (1982) (“holding that when two conflicting verdicts are reached from the same evidence, a new trial is required”); Mont. Bank of Red Lodge, N.A. v. Lightfield, 237 Mont. 41, 49, 771 P.2d 571, 576-77 (1989) (affirming the district court’s grant of a new trial when the jury findings were inconsistent and the court could not determine how the jury arrived at its conclusions). Four Beat, ¶ 41. These cases provide a roadmap for when a court might be willing to either correct a jury’s verdict, finding it otherwise consistent, or to reverse and remand for a new trial based upon irreconcilable inconsistencies. ¶32 We have acknowledged certain grounds that will support a Rule 59 motion to alter or amend a judgment—one of which is to correct manifest errors of law or fact upon 18 which the judgment is based. Nelson v. Driscoll, 285 Mont. 355, 360, 948 P.2d 256, 259 (1997) (citing 11 Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2810.1 (1995)). We note here also that, under Montana law, the equitable remedy of unjust enrichment is unavailable where there is a legal contract between the parties. Maxted v. Barrett, 198 Mont. 81, 87, 643 P.2d 1161, 1164 (1982). ¶33 In its Rule 59 Motion, Ryffel Partnership correctly argued that the jury’s simultaneous finding that Ryffel Partnership had breached two contracts with Alpine, while also being unjustly enriched by Alpine’s labor, was legally inconsistent. Here, however, the record reflects that the District Court was able to reconcile the jury’s findings with established law by reassigning the jury’s finding of damages from unjust enrichment to breach of contract, while still maintaining the integrity of the jury’s verdict. Unlike in Four Beat, where no alternative remedial theory for recovery such as unjust enrichment was advanced, here, the special verdict form proposed two alternatives for recovery: breach of contract or unjust enrichment. Although unjust enrichment is only available in the absence of a contract, the jury found that a contract existed; that Ryffel had breached that contract; that the breach caused Alpine no damages; but that Alpine suffered damages in the amount of $50,348.18 as a result of Ryffel’s unjust enrichment. It was not difficult for the trial court, and it is not difficult for us, to discern how the jury arrived at its conclusions and to correct the verdict’s inconsistency: (1) Alpine’s books as of 2008 accurately reflected the total of what Ryffel Partnership owed, that being $50,348.18; (2) that amount constituted the sum total of damages to Alpine arising out of the obligations created by the agreements between the parties; and (3) 19 Ryffel Partnership was either the breaching party, or the party unjustly enriched. The verdict was therefore reconcilable with the evidence presented at trial and may be corrected without compromising its integrity. As such, we cannot conclude that the trial court abused its discretion by amending the verdict and denying Ryffel Partnership’s request for a new trial. ¶34 3. Whether the District Court erred in denying Alpine’s motion for pre-judgment interest pursuant to § 27-1-211, MCA. ¶35 When a prevailing plaintiff’s amount of recovery is capable of being made certain by calculation, that plaintiff is entitled to prejudgment interest under § 27-1-211, MCA. Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 99, 341 Mont. 33, 55, 174 P.3d 948, 965. There are three requirements under the statute: (1) an underlying monetary obligation must exist; (2) the amount of recovery must be capable of being made certain; and (3) the right to recover must vest on a particular day. Petroleum Tank, ¶ 99 (citing Albers v. Bar ZF Ranch, Inc., 229 Mont. 396, 408, 747 P.2d 1347, 1354 (1987)). When the damages at issue are uncertain or disputed, an award of prejudgment interest is inappropriate. Petroleum Tank, ¶ 99 (citing Northern Montana Hosp. v. Knight, 248 Mont. 310, 320, 811 P.2d 1276, 1282 (1991)). “[N]o interest can run until a fixed amount of damages has been arrived at, either by agreement, appraisal, or judgment.” Northern Montana Hosp., 248 Mont. at 321, 811 P.2d at 1282 (quoting Carriger v. Ballenger, 192 Mont. 479, 486, 628 P.2d 1106, 1110 (1981)). ¶36 In Petroleum Tank, we found that certain administrative costs relating to an environmental cleanup and incurred by an insured as the result of an insurer’s breach of 20 the duty to indemnify, should be considered consequential damages because they were contemplated by both parties at the time the insurance contract was entered into and would be the natural result of a refusal to indemnify. The terms of the policy were broad and did not qualify or limit what would be construed as an expense under the policy. Nonetheless, the policy contemplated that administrative costs incurred from a clean-up would be covered. Petroleum Tank, ¶¶ 68-71. We held that the insured was not entitled to prejudgment interest because the amount of damages to which the insured was entitled was not conclusively determined until the date the jury returned the verdict. Petroleum Tank, ¶¶ 100-01. ¶37 In Northern Montana Hospital, the hospital sought recovery from an architect for damages it incurred as the result of design defects and code violations in its newly constructed facility. Northern Montana Hosp., 248 Mont. at 313, 811 P.2d at 1278. The hospital presented ample evidence as to its damages, resulting in a jury award of $1,750,000. Northern Montana Hosp., 248 Mont. at 314, 321, 881 P.2d at 1278, 1282. However, the jury’s award did not comport with any amount claimed by the hospital at trial. Northern Montana Hosp., 248 Mont. at 321, 881 P.2d at 1282. We concluded that the amount awarded could not have vested until the date of the jury’s verdict, and therefore affirmed the District Court’s denial of prejudgment interest. Northern Montana Hosp., 248 Mont. at 321, 881 P.2d at 1282. ¶38 Similar to both Northern Montana Hospital and Petroleum Tank, the amount to which Alpine was entitled was not conclusively determined until the date the jury returned the verdict. Unlike in Petroleum Tank, here, the terms of the agreement between 21 the parties were premised upon oral contracts, one of which comprised solely of a conversation between the parties. In Petroleum Tank, the contract at least contemplated through its terms the issues and damages raised in the suit. Here, the terms resulting from the oral agreements were cursory and the parties disputed each other’s recollection of the meetings and the concomitant terms of agreement. As a result, the record shows it is unclear, at best, whether hauling charges to the mill should have been applied to Ryffel Partnership’s running balance, and if Alpine was to be billing an hourly rate for logging work instead of a fee for the job. Further, Ryffel disputed that the check for $45,000 enclosed with his letter should have been applied to invoices—he believed it should have been used to purchase equipment. Those terms were disputed at trial, but each was supported with credible testimony. As a result, the jury could have reasonably determined any number of sums as an appropriate award for Alpine. Similar to Northern Montana Hospital, the jury was in no way bound by a particular amount and could have decided on nearly any award beyond or below that claimed by Alpine. ¶39 Although the District Court denied Alpine’s motion for prejudgment interest by inaction, we do not disagree with the result. Uncertainty over the terms of the agreement and damages meant that the amount of Alpine’s recovery was not certain or capable of being made certain by calculation. Alpine’s claim for prejudgment interest thus fails to meet the requirements of § 27-1-211, MCA, and we affirm denial of the motion below accordingly. 22 CONCLUSION ¶40 The judgment of the District Court and its order entered pursuant to M. R. Civ. P. 59 are affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER	December 28, 2016
f8ab5b3e-17a3-40c3-b5f7-91dc4e278a49	State v. Lawrence	2016 MT 346	DA 15-0428	Montana	Montana Supreme Court	DA 15-0428 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 346 STATE OF MONTANA, Plaintiff and Appellee, v. WILLIAM JAMES LAWRENCE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADC 14-147 Honorable Mike Menahan, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Sarah Clerget, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Lisa Leckie, Deputy County Attorney, Helena, Montana Submitted on Briefs: October 26, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 15-0428 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 William Lawrence appeals from his conviction for felony theft following a jury trial in the First Judicial District Court, Lewis and Clark County. Lawrence raises allegations of prosecutorial misconduct, ineffective assistance of counsel, and an abuse of discretion by the District Court. We reverse and remand for a new trial. ISSUE ¶2 Lawrence raises four issues on appeal. We restate the dispositive issue as follows: Whether the prosecutor’s comments during closing arguments require reversal under the plain error doctrine? FACTUAL AND PROCEDURAL BACKGROUND ¶3 On April 8, 2014, Lawrence and his brother, Steven Dubois, arrived at Wayne Miller Coins on Last Chance Gulch in Helena, Montana. Lawrence and Dubois entered the shop after being buzzed in through the back door. Lawrence was in possession of coins he wished to have appraised, something he had done previously at Miller Coins. After Wayne Miller, the owner of the shop, informed him that his coins were valueless, Lawrence perused the store while questioning a store employee, Emily Gleason, about some of the items. Meanwhile, Dubois made his way to the back door, apparently intent on leaving the store. While following his brother out of the shop, Lawrence stopped to admire artwork adorning the walls of the hallway. As Lawrence continued to look at the artwork, Dubois grabbed a shipping package containing roughly $10,500 in silver, one-ounce coins and exited the store. Lawrence then started toward the back door. Gleason saw Dubois take the package and hurried to the back of the store to confront 3 Lawrence. After a brief exchange, Lawrence left and got in a car with Dubois, who drove away. Lawrence was apprehended the next day in possession of a backpack containing nearly half of the stolen silver coins. ¶4 Lawrence was charged with theft under § 45-6-301(1)(a), MCA. A two-day trial was held in the First Judicial District Court, Lewis and Clark County. During closing argument, the prosecutor told the jury, “The presumption of innocence that you came into this trial with no longer exists at this point.” Defense counsel did not object. Subsequently, the jury found Lawrence guilty of felony theft and he was sentenced to ten years in prison. ¶5 On appeal, Lawrence raises a myriad of arguments, alleging that the prosecutor committed plain error requiring reversal by stripping Lawrence of the presumption of innocence as well as misstating the law of the charged offense. Further, Lawrence argues that the District Court abused its discretion by not granting a mistrial after the State violated an order in limine, and that defense counsel provided ineffective assistance by failing to object to prosecutorial misconduct, an erroneous jury instruction, and hearsay testimony by a witness for the State. STANDARD OF REVIEW ¶6 In general, this Court does not address issues of “‘prosecutorial misconduct pertaining to a prosecutor’s statements not objected to at trial.’” State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (quoting State v. Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694). However, we may exercise our discretion and review such issues under the plain error doctrine. Aker, ¶ 21 (citing State v. Lacey, 2012 MT 52, 4 ¶ 14, 364 Mont. 291, 272 P.3d 1288); State v. Hayden, 2008 MT 274, ¶ 17, 345 Mont. 252, 190 P.3d 1091. The plain error doctrine is to be used sparingly, and only on a case-by-case basis. Hayden, ¶ 17. Once the doctrine is invoked, this Court’s review is grounded in our “inherent duty to interpret the constitution and to protect individual rights set forth in the constitution.” State v. Finley, 276 Mont. 126, 134, 915 P.2d 208, 213 (1996) overruled on other grounds State v. Gallagher, 2001 MT 39, ¶ 21, 304 Mont. 215, 19 P.3d 817. DISCUSSION ¶7 We do not reach the issues regarding the order in limine, the alleged hearsay, or the jury instruction, nor do we reach the question of whether defense counsel’s failure to object to the prosecutor’s statement constitutes ineffective assistance of counsel. Pertinent here, Lawrence argues the prosecutor’s statement regarding the presumption of innocence constitutes plain error requiring reversal and remand for a new trial. ¶8 Whether the prosecutor’s comments during closing arguments require reversal under the plain error doctrine? ¶9 The purpose of the plain error doctrine is to correct an error not objected to at trial that affects the “fairness, integrity, and public reputation of judicial proceedings.” Finley, 276 Mont. at 134, 915 P.2d at 213. The plain error doctrine may be used “‘in situations that implicate a defendant’s fundamental constitutional rights,’” and where “‘failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.’” Aker, ¶ 21 (quoting State v. McDonald, 2013 MT 97, ¶ 8, 369 5 Mont. 483, 299 P.3d 799). Therefore, we first determine whether the defendant’s fundamental constitutional rights have been implicated. ¶10 The underlying question here is a simple one: whether a prosecutor stating during closing argument that the presumption of innocence has been removed from the defendant implicates a defendant’s fundamental rights. We cannot overstate the importance of the foundational principle that is the presumption of innocence. It is a bedrock, axiomatic, and elementary tenet of our criminal justice system. State v. Williams, 184 Mont. 111, 112, 601 P.2d 1194, 1195 (1979). Further, enforcement of this principle, meaning its application to each and every criminal defendant, “lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 403 (1895). Therefore, we determine that the comment by the prosecutor stating the presumption of innocence no longer applied to the defendant implicated the defendant’s fundamental rights. We next determine whether a failure to review this alleged error might result in a “‘manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.’” Aker, ¶ 21 (quoting McDonald, ¶ 8). ¶11 This Court has, on numerous occasions, refused to invoke the plain error doctrine because the alleged error did not result in a miscarriage of justice, raise a question as to the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. See, e.g., McDonald, ¶ 17 (concluding that the challenged comment in closing argument did not raise the specter of prosecutorial misconduct necessitating the exercise of plain error review to protect the fundamental fairness of the proceeding); State v. 6 Thorp, 2010 MT 92, ¶¶ 25-30, 356 Mont. 150, 231 P.3d 1096 (determining that a cautionary instruction was sufficient under the circumstances to remedy any alleged infringement on the defendant’s constitutional right to a fair trial). However, we have also previously determined that prosecutorial misconduct may warrant relief under the plain error doctrine.1 ¶12 This Court has not previously been faced with comments such as those at issue in this case. Due to the gravity of the presumption of innocence within our criminal justice system, we determine that the challenged comment, “[t]he presumption of innocence that you came into this trial with no longer exists at this point,” leaves unsettled the question of whether or not the proceedings were fundamentally fair and compromises the integrity of the judicial process. Therefore, as we find that the circumstances of the instant case warrant application of the plain error doctrine, we proceed to address the merits of the alleged error. ¶13 “Both the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee criminal defendants ‘the right to a fair trial by a jury.’” Aker, ¶ 24 (quoting Hayden, ¶ 27). Prosecutorial misconduct “may be grounds for reversing a conviction and granting a new trial if the conduct deprives the 1 In State v. Hayden, we reversed and remanded for a new trial based on the prosecutor’s comments. Hayden, ¶¶ 30-33. In Hayden, the prosecutor’s challenged statements included, in part, offering his own opinion as to witness testimony during closing argument, stating that the jury could rely on the detective’s testimony, and improperly testifying to the efficacy of the search during closing argument. Hayden, ¶ 32. In summary, we determined that the prosecutor’s comments unfairly added “the probative force of his own personal, professional, and official influence to the testimony of the witnesses,” and that the prosecutor’s conduct invaded the role of the jury. Hayden, ¶ 33. In light of these two concerns, we determined that the record left “unsettled the question of the fundamental fairness of the proceedings.” Hayden, ¶ 33. 7 defendant of a fair and impartial trial.” Hayden, ¶ 27. It is well established that we “‘consider alleged improper statements during closing argument in the context of the entire argument.’” Aker, ¶ 24 (quoting State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213). We “do not presume prejudice from the alleged prosecutorial misconduct; rather, the ‘defendant must show that the argument violated his substantial rights.’” Aker, ¶ 24 (quoting McDonald, ¶ 10). ¶14 Therefore, we must determine whether the challenged comment deprived the defendant of a fair and impartial trial. In making this determination, we consider the challenged comment in the context of the trial and the closing argument as a whole. Further, we consider whether the challenged comment violated the defendant’s substantial rights. ¶15 As stated above, there are few principles in our criminal justice system as fundamental as the presumption of innocence. The principle is so foundational that we have recognized “it cannot be evidence, nor can it be introduced in the case, for it is in the case from its inception.” State v. De Lea, 36 Mont. 531, 539, 93 P. 814, 817 (1908). The presumption of innocence is the “safeguard which the law casts around all persons accused of a crime, and the defendant cannot be reached by a verdict of guilty until this safeguard is entirely removed.” De Lea, 36 Mont. at 539, 93 P. at 817. Further, and most importantly in the instant case, the presumption endures throughout the deliberations of the jury and may only be overcome “by evidence which satisfies the minds of the jurors beyond a reasonable doubt.” De Lea, 36 Mont. at 539, 93 P. at 817. The presumption remains attached to the defendant as he or she appears in the minds of the jurors after the 8 jury has heard the entirety of the evidence and begun its deliberation. Indeed, it is improper to say that the presumption may be removed from a defendant at any time; rather, the presumption is overcome upon his or her conviction in a court of law. ¶16 In our criminal justice system, the presumption has been overcome when the State has presented evidence against a criminal defendant that satisfies a jury, beyond a reasonable doubt, that the defendant is guilty of the crime charged. De Lea, 36 Mont. at 540, 93 P. at 817-18. To that end, we instruct the jurors that they are to refrain from making their decision as to the guilt or innocence of a defendant until they have considered whether the State has overcome the presumption of innocence beyond a reasonable doubt. The prosecutor’s statement made prior to deliberation of the jury that the presumption of innocence no longer attached violated this bedrock principle of law. ¶17 It is reasonable and required that both the State and defense counsel jealously guard this principle throughout the entirety of a criminal trial. It is clear from the record that defense counsel failed to object to the challenged statement, yet that does not relieve a prosecutor of his or her duty. The United States Supreme Court has stated that “it is as much [the Prosecutor’s] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). We agree. By stating that the presumption of innocence no longer applied to the defendant, the prosecutor improperly abdicated this duty and deprived the defendant of his fundamental right to a fair and impartial trial by jury as guaranteed by Article II, Section 24, of the Montana Constitution, and the Sixth Amendment to the United States Constitution. 9 ¶18 Here, it was Dubois, not Lawrence, who physically removed the coins from the store. Lawrence testified on his own behalf, telling the jurors that he did not want to keep the coins his brother had given him and intended to give them back to the coin shop, hopefully without exposing himself to prosecution. However, he was arrested before he could do so. While the jury was free to disbelieve this testimony, the fact remains that under these circumstances, the presumption of innocence was critical to Lawrence’s defense. When the prosecutor told the jury the presumption of innocence no longer existed and his lawyer raised no objection or argument in opposition to that assertion, the jury could well have concluded that the prosecutor was correct. ¶19 Viewing the challenged comment in the context of the surrounding statement provides support for our conclusion that the prosecutor engaged in misconduct requiring relief. In full, the prosecutor stated, “The presumption of innocence that you came into this trial with no longer exists at this point. The instruction doesn’t say that you have to believe what the defendant told you. You can use your common sense in determining what happened in this case.” We infer that the instruction to which the prosecutor refers is Instruction No. 4 which states, in relevant part: The Defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the Defendant is guilty. The Defendant is not required to prove his innocence or present any evidence. This preliminary instruction was given by the district court at the commencement of the trial, but was not read again at the conclusion of the evidence. 10 ¶20 The prosecutor is the representative of the State at trial and must be held to a standard commensurate with his or her position. Noting this, the United States Supreme Court has rightly observed that a prosecutor’s improper suggestions and assertions to a jury “are apt to carry much weight against the accused when they should properly carry none.” Berger, 295 U.S. at 88, 55 S. Ct. at 633. We conclude that these statements could cause a reasonable juror to question the language of the preliminary jury instruction and, therefore, have the potential effect of removing the presumption of innocence from the defendant. ¶21 Our conclusion here finds support in a Tenth Circuit case in which a similar representation was made by a prosecutor during closing arguments to a jury. In Mahorney v. Wallman, 917 F.2d 469 (10th Cir. 1990), the Court of Appeals held that a prosecutor’s argument that the presumption of innocence had been removed from the defendant violated the defendant’s constitutional rights and constituted reversible error. Mahorney, 917 F.2d at 473-74. We conclude that the same result must be reached here. ¶22 It is our “inherent to duty . . . to protect individual rights set forth in the constitution.” Finley, 276 Mont. at 134, 915 P.2d at 213. We therefore decline to accept the State’s contention and the Dissent’s assertion that the prosecutor’s statements were appropriate comments on the evidence undeserving of plain error review. Dissent, ¶ 37. Rather, we conclude that the challenged comments made by the prosecutor constitute prosecutorial misconduct from which the defendant is entitled to relief. 11 CONCLUSION ¶23 We determine that the prosecutor’s comments require reversal of Lawrence’s conviction. Because we grant relief based on prosecutorial misconduct during closing arguments, we do not reach the merits of the additional issues raised by Lawrence on appeal. We reverse and remand for a new trial. /S/ PATRICIA COTTER We Concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA Justice Beth Baker, concurring. ¶24 I agree with the Court’s determination to review for plain error the prosecutor’s statement regarding the presumption of innocence because that statement implicated Lawrence’s fundamental rights. The statement was improper and objectionable. But I share the Dissent’s view that, when reviewed in context, the prosecutor’s closing argument does not justify reversing the conviction. ¶25 The Court’s reliance on Mahorney is misplaced. Mahorney is distinguishable because in that case “defense counsel vigorously objected both during voir dire and closing argument to the prosecutor’s misconduct and was immediately and categorically overruled in the presence of the jury.” Mahorney, 917 F.2d at 473. In reversing for a new trial, the Tenth Circuit concluded that the trial court placed an “official imprimatur 12 . . . upon the prosecution’s misstatements of law [which] obviously amplified their potential prejudicial effect on the jury.” Mahorney, 917 F.2d at 473. “Moreover,” the Tenth Circuit went on, “the trial court did not thereafter attempt to cure or minimize the problem through admonishment or special instruction of the jury.” Mahorney, 917 F.2d at 473. Thus, the Tenth Circuit concluded, “the factors that have permitted some courts to overlook similar prosecutorial misrepresentations are not present in this case.” Mahorney, 917 F.2d at 474. ¶26 The Court also fails to consider the State’s “alleged improper statements during closing argument in the context of the entire argument.” State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213. As the Dissent observes, the prosecutor focused on the evidence presented at trial. In her rebuttal argument the prosecutor stated: The State of Montana has the burden of proving the guilt of the defendant beyond a reasonable doubt. And the State accepts that burden; I think it’s fair. It says: Proof beyond a reasonable doubt is proof of such convincing character that a reasonable person would rely and act upon that in the most important of his or her own affairs. She then proceeded to explain reasonable doubt and to discuss the evidence and inferences the jury properly should draw from it in order to reach a guilty verdict. I would not reverse the conviction on the basis of the prosecutor’s single “presumption of innocence” comment. ¶27 Despite my disagreement with the Court’s analysis, I join the decision to reverse Lawrence’s conviction because I am convinced that this is the rare case in which the cumulative effect of the errors he has shown on appeal prejudiced his right to a fair trial. 13 ¶28 Lawrence asserts the following additional errors: the prosecutor’s misstatement of the law of the charged offense; defense counsel’s failure to object to the prosecutor’s closing argument; defense counsel’s failure to object to an erroneous mens rea instruction; and defense counsel’s failure to object to hearsay testimony. I would conclude that, when considered as a whole, these errors prejudiced Lawrence’s right to a fair trial.1 ¶29 The cumulative error doctrine “refers to a number of errors that, taken together, prejudice a defendant’s right to a fair trial.” State v. Novak, 2005 MT 294, ¶ 35, 329 Mont. 309, 124 P.3d 182; accord State v. Giddings, 2009 MT 61, ¶ 100, 349 Mont. 347, 208 P.3d 363; State v. Bar-Jonah, 2004 MT 344, ¶ 108, 324 Mont. 278, 102 P.3d 1229. Under the doctrine, “[r]eversal is required . . . once such accumulated errors are identified as having prejudiced a defendant’s right to a fair trial.” Novak, ¶ 35. It is the defendant’s duty to prove the existence of prejudice. Novak, ¶ 35. ¶30 In evaluating a cumulative error argument based on several enumerated errors, courts must consider each such claim against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose . . . ; and the strength of the government’s case. The run of the trial may also be important; a handful of miscues, in combination, may often pack a greater punch in a short trial than in a much longer trial. 1 I do not include in this list Lawrence’s argument regarding a witness’s passing reference to “booking photos.” 14 United States v. Sepulveda, 15 F.3d 1161, 1196 (1st Cir. 1993) (internal citations omitted). ¶31 Here, over the course of a two-day trial, there were several interrelated errors that had the combined effect of prejudicing Lawrence’s right to a fair trial. During closing argument, the prosecutor implied that because Lawrence had not returned the coins “immediately,” he had committed theft under § 45-6-301(1)(a), MCA. Though made in response to the defense closing argument, this misstated the law, which requires a purpose to deprive the owner of his property. The error, which otherwise could have been a minor one, was compounded by the District Court’s instructions as to the mens rea for theft. The court gave a result-based “knowingly” instruction and a conduct-based “purposely” instruction. This was not a correct statement of the law. Theft is a result-based crime because it requires a “purpose to deprive” the owner of property. See State v. Shively, 2009 MT 252, ¶¶ 17-18, 351 Mont. 513, 216 P.3d 732 (concluding that the State is not required to prove that a defendant knows the property is stolen to be convicted under § 45-6-301, MCA, because the statute requires a knowing exertion of control over the property with the purpose to deprive the owner). Even though the court informed the jury of that element, it didn’t correctly define for the jury what “purpose” meant in proving the elements of theft. ¶32 During the trial Officer Zapata testified that another officer advised him that Lawrence “was possibly in Stewart Homes trying to sell stolen coins from the theft.” The officer’s hearsay testimony was the only evidence about any intent Lawrence may have had to sell the stolen property. Defense counsel did not object. Certainly, there is 15 nothing constitutionally impermissible about the admission of hearsay evidence. Nor is there a mandate for counsel to raise every objection that might have merit. But the State has not argued that any hearsay exception applied, and an objection surely would have been sustained. It was an important piece of evidence, particularly in light of the defense theory—that Lawrence had not acted with the purpose of depriving the owner of the coins. Lawrence was arrested less than two days after the theft occurred. He claimed at trial that he helped Dubois remove the stolen coins from the home of an acquaintance because there were children present. He testified that he was trying to figure out a way to get the coins back to Wayne Miller’s shop without incident because he knew and respected Miller’s wife, who runs a homeless shelter in Helena. This perhaps sounds like an implausible story. And a jury would be free to reject his testimony. But that assumes a trial safeguarded by the protections of the Constitution, including the effective assistance of counsel, instructions that correctly state the applicable law, and the full protection of the presumption of innocence. ¶33 Had any of the claimed mistakes been isolated in an otherwise error-free trial, none would justify reversal. But cumulatively, they resulted in a trial in which inadmissible evidence was the only proof of an element of the offense on which the jury was improperly instructed and which the prosecutor misstated in argument, along with her unartful short-circuiting of the presumption of innocence. There was no plausible strategic reason for counsel’s failure to seek exclusion of harmful evidence or to propose a correct instruction on mental state when it was a key theory of the defense. See State v. Kougl, 2004 MT 243, ¶ 20, 323 Mont. 6, 97 P.3d 1095 (concluding that defendant was 16 given ineffective assistance of counsel, in part, because counsel “failed to use the law to strike at the heart of the State’s case”). Lawrence has, in my view, sustained his burden to show that the combination of miscues in his brief trial prejudiced his right to a fair shake. I agree with the decision to give him a new trial. /S/ BETH BAKER Chief Justice Mike McGrath, dissenting. ¶34 The statement referenced by the majority was made as part of a closing argument, the summation made by the attorneys following the conclusion of the presentation of evidence to the jury. The statement was made at the end of that closing argument, following her summation of all the evidence submitted. ¶35 Taken in context of the entire proceeding, it is clear that the prosecution was not suggesting that the defendant was not entitled to the presumption of innocence, but rather making the argument that the evidence she had just summarized would overcome that presumption of innocence. ¶36 The jurors were properly instructed by the District Court Judge. Instruction No. 4 provided: The Defendant is presumed to be innocent of the charge against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the Defendant is guilty. The Defendant is not required to prove his innocence or present any evidence. Significantly, Instruction No. 2 provided: 17 You should take the law in this case from my instructions alone. You should not accept anyone else’s version as to what the law is in this case. You should not decide this case contrary to these instructions, even though you might believe the law ought to be otherwise. Counsel, however, may comment and argue to the jury upon the law as given in these instructions. ¶37 Instructions are not only read aloud by the judge, but they are provided to the jury in writing to be taken into deliberations for the purpose of review by the jurors. They clearly provide that jurors should take the law from the instructions alone, and not accept other versions of what the law is. The prosecutor’s closing statement here was a comment on the evidence presented and not intended to counter the law as it was clearly given in the District Court instructions. ¶38 As the majority notes, the plain error doctrine should be used sparingly, and only in cases where the alleged error may “result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceeding, or compromise the integrity of the judicial process.” McDonald, ¶ 8. Viewed in context of the entire trial,1 particularly the instructions, this comment made by the prosecutor at the end of the closing argument, after summarizing the evidence presented to the jury, does not meet the standard required to invoke plain error review. ¶39 Closing argument is a unique portion of a trial. It is an opportunity for the attorneys to present the case as they see it. And by its very nature, it is argument—not evidence. Jurors understand the function of argument. The lawyers in the case 1 The prosecutor also made it clear in her final closing argument that the State has the burden of proving the charges beyond a reasonable doubt, and that they readily accept that challenge. 18 understand the function of closing argument and objecting in a closing argument is seldom necessary. ¶40 For the reasons stated above, I dissent. /S/ MIKE McGRATH Justice Jim Rice joins the Dissent of Chief Justice Mike McGrath. /S/ JIM RICE	December 27, 2016
e370530c-f70e-40a7-a61f-f084e0a7a635	In re Parenting of N.M.V.	2016 MT 322	DA 15-0797	Montana	Montana Supreme Court	DA 15-0797 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 322 IN RE THE PARENTING OF N.M.V., Minor Child, DUSTIN E. CROSS, Petitioner and Appellant, and ERIN VERPLOEGEN, Respondent and Appellee. APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DR-11-21 Honorable Daniel A. Boucher, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeremy S. Yellin, Attorney at Law, Havre, Montana For Appellee: Brian Lilletvedt, Bosch, Kuhr, Dugdale, Martin & Kaze PLLP, Havre, Montana Submitted on Briefs: October 5, 2016 Decided: December 13, 2016 Filed: /S/ ED SMITH Clerk 12/13/2016 Case Number: DA 15-0797 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Dustin E. Cross appeals from the Findings of Fact, Conclusions of Law, and Final Visitation Plan entered by the Montana Twelfth Judicial District Court, Hill County, awarding him visitation rights but denying him a parental interest in N.M.V., a minor child and daughter of Cross’s former girlfriend, Erin J. Verploegen. We affirm. ISSUE ¶2 The issue on appeal is whether the District Court abused its discretion in denying Cross a parental interest in N.M.V. BACKGROUND ¶3 Cross and Verploegen began dating in December 2001, less than one year after N.M.V. was born. N.M.V.’s biological father, Roger Gonzales, has had no contact with N.M.V. and his whereabouts are currently unknown. Verploegen and N.M.V. moved into Cross’s Bozeman townhome in June 2003. During the time they lived together in Bozeman, Verploegen made all critical decisions about N.M.V.’s upbringing, including decisions about healthcare, daycare, and the everyday rules N.M.V. was to abide. Cross worked long hours and most weekends, but he would read to N.M.V. at night and picked her up from daycare once or twice when Verploegen was unavailable. Cross paid the rent on the townhouse while Verploegen paid utilities and bought groceries. ¶4 In the summer of 2004, Cross bought a house in Churchill, Montana, near Bozeman. Cross changed jobs after moving to Churchill, and claimed that he began to play a more active role in parenting N.M.V. Cross testified that he and Verploegen 3 discussed what school N.M.V. would attend. He also said he began picking up N.M.V. from daycare more often, cooking food for her, and disciplining her. Verploegen continued to pay for utilities and groceries after the move to Churchill, but in 2007, she began paying an additional $500 per month in rent to Cross. From time to time, Verploegen and Cross discussed marriage and Cross’s adoption of N.M.V., but those talks subsided in 2009 when Cross and Verploegen broke up and Verploegen and N.M.V. moved to Havre, Montana. In February 2011, Cross petitioned the District Court for a parenting interest in N.M.V. pursuant to § 40-4-228(2), MCA. The District Court denied Cross’s petition. He appeals. STANDARD OF REVIEW ¶5 We review a district court’s findings of fact for clear error, and we will affirm findings if they are supported by substantial credible evidence. Kulstad v. Maniaci, 2009 MT 326, ¶ 51, 352 Mont. 513, 220 P.3d 595. Ultimately, the language of § 40-4-228(2), MCA, is permissive and a district court’s ruling is discretionary. Thus, under these circumstances, we will overturn the district court only if it abused its discretion or if its findings are not supported by substantial credible evidence. In re A.P.P., 2011 MT 50, ¶ 18, 359 Mont. 386, 251 P.3d 127. DISCUSSION ¶6 Did the District Court abuse its discretion in denying Cross a parental interest in N.M.V.? ¶7 A district court may grant a parental interest in a child to a non-parent if the non-parent shows through clear and convincing evidence that: 4 (a) the natural parent has engaged in conduct that is contrary to the child-parent relationship; and (b) the nonparent has established with the child a child-parent relationship, as defined in 40-4-211, and it is in the best interests of the child to continue that relationship. Section 40-4-228(2), MCA. Here, the District Court denied Cross’s petition after it determined Cross failed to show by clear and convincing evidence that Verploegen engaged in conduct contrary to her child-parent relationship. At the same time, the District Court found that an ongoing relationship between N.M.V. and Cross was in N.M.V.’s best interests, and therefore awarded Cross visitation rights pursuant to § 40-4-228(3), MCA. ¶8 On appeal, Cross argues Verploegen ceded her parental authority to him. Cross cites Kulstad for the proposition that ceding parental authority is conduct contrary to the child-parent relationship. Kulstad is clearly distinguishable. Kulstad involved a same-sex couple raising adopted children together over a period of ten years at a time when the law allowed only one partner to be the adopting parent. Kulstad, ¶ 10. When the Kulstad couple adopted their children, they intended that both partners would be co-parents. Both partners exercised equal rights and bore equal responsibilities in raising the children, and this dynamic was confirmed by social workers involved in the adoption process. When the couple split, the district court awarded a parental interest to the partner not named in the adoption papers over the objection of Maniaci, the adopting parent. We affirmed, stating: The District Court has discretionary authority to determine that a parent acted contrary to her child-parent relationship when substantial credible 5 evidence supports its findings. Substantial credible evidence in the record supports the District Court’s determination that Maniaci repeatedly and continually acted contrary to her child-parent relationship. Kulstad, ¶ 78 (citation omitted). ¶9 Kulstad illustrates the fact-intensive nature of a district court’s analysis under § 40-4-228(2), MCA. Here, substantial credible evidence supports the District Court’s finding that Verploegen did not cede her parenting authority to Cross, and thus did not engage in conduct contrary to her child-parent relationship. Neither Cross nor Verploegen entered their relationship with the intent that he would be considered a co-parent. Verploegen retained decision-making authority in all matters relating to N.M.V.’s care, and paid for her diapers, clothes, and daycare. After the move to Churchill, Verploegen assumed more of the expenses by paying rent to Cross, in addition to the cost of utilities and groceries. While Cross may have spent more time with N.M.V. after the move, he never assumed an equal parenting role or equal responsibility with Verploegen in raising N.M.V., as was the case in Kulstad. We therefore conclude the District Court did not abuse its discretion in finding Cross failed to satisfy one of the requirements of § 40-4-228(2), MCA, and in denying Cross’s petition. ¶10 Even though the District Court found Verploegen had not acted contrary to her child-parent relationship with N.M.V., Cross argues that Gonzales had clearly satisfied that requirement of § 40-4-228(2), MCA. While we agree that Gonzales’s absence is contrary to his child-parent relationship with N.M.V., his relationship is not at stake here. The only parent affected by the present proceeding is Verploegen, who has been 6 N.M.V.’s sole custodial parent. We therefore conclude that Verploegen is “the natural parent” to be scrutinized under § 40-4-228(2)(a), MCA, and decline Cross’s interpretation of the statute. ¶11 Finally, we conclude that there was sufficient evidence to support the District Court’s determination that it was in N.M.V.’s best interests to award Cross visitation rights with N.M.V. See § 40-4-228(3), MCA. Verploegen has agreed this visitation is in N.M.V.’s best interests, so we need not address Cross’s visitation rights further. CONCLUSION ¶12 Because the District Court’s findings of fact were not clearly erroneous and its ruling on Cross’s parental interest was supported by substantial credible evidence and was not an abuse of discretion, we affirm. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT	December 13, 2016
cee03919-fdf8-4a47-b1ab-f322816e4d6d	Welu v. Twin Hearts Smiling Horses, Inc.	2016 MT 347	DA 16-0139	Montana	Montana Supreme Court	DA 16-0139 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 347 TIM WELU, an individual, Plaintiff and Appellant, v. TWIN HEARTS SMILING HORSES, INC., a Montana corporation, and STEVE HELD, an individual, Defendants and Appellees. APPEAL FROM: District Court of the Sixteenth Judicial District, In and For the County of Powder River, Cause No. DV 38-12-2510 Honorable Michael B. Hayworth, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael E. Begley, Adam J. Tunning, & Jordan W. FitzGerald, Moulton, Bellingham PC, Billings, Montana For Appellees: Stephen C. Mackey, Towe, Ball, Mackey, Sommerfeld & Turner, P.L.L.P., Billings, Montana Submitted on Briefs: September 28, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/28/2016 Case Number: DA 16-0139 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 This case stems from a disagreement over the ownership and operation of an irrigation system on a ranch near Broadus, Montana. Tim Welu appeals from the Findings of Fact and Conclusions of Law entered after a bench trial in the Sixteenth Judicial District Court, Powder River County. We affirm. ISSUES ¶2 On appeal, Welu raises three issues, which we restate as follows: 1. Did the District Court err in determining that the entire pivot irrigation system constituted a fixture? 2. Did the District Court err in concluding that Held did not breach the parties’ agreement concerning the pivot irrigation system? 3. Did the District Court err in determining that Held and Twin Hearts Smiling Horses, Inc., were not unjustly enriched? FACTUAL AND PROCEDURAL BACKGROUND ¶3 In 2005, Steve Held and Ginger Held (the Helds), together with David Platt and Diane Case (the Platts), purchased an approximately 6,000 acre ranch roughly 16 miles south of Broadus in Powder River County, called the Twin Hearts Angus Ranch (the Ranch). In 2008, the parties agreed to divide the Ranch into three, approximately 2,000 acre parcels. This division was accomplished in 2009 when an agreement was entered into between the Helds, the Platts, and Tim Welu. Under the 2009 agreement, Welu purchased one of the three 2,000 acre parcels, while the Helds retained a 2,000 acre parcel, and the remaining 2,000 acre parcel was transferred to the Platts. In addition to the tracts of land, the parties obtained certain rights relating to the entirety of the Ranch: 3 Welu acquired the exclusive use of hunting rights on the entire Ranch during his lifetime; the Platts were granted exclusive recreational use of the Ranch during their lifetime; and the Helds were granted an exclusive privilege to use the Ranch for livestock grazing purposes. Subsequently, the Helds transferred ownership of their parcel to Twin Hearts Smiling Horses, Inc. (THSH), and Welu transferred ownership of his parcel to Twin Hearts, LLC. ¶4 As indicated by the exclusive rights he acquired in the 2009 agreement, Welu’s purpose in acquiring an interest in the Ranch was to use the land to hunt game animals. For this purpose, he identified areas suitable for attracting and retaining game animals within the Ranch property. Among these were areas within Held’s portion of the Ranch that had previously been used to grow crested wheat without irrigation, as well as areas that had not previously been irrigated. Welu believed that irrigated alfalfa fields would increase the amount of game attracted and retained on the property in those areas. Initially, Welu and Held attempted to utilize a flood irrigation system, already located in the area but in disrepair and inoperable, to grow alfalfa. These efforts ceased in 2010 after the failure to restore the flood irrigation system to the operational condition desired by Welu. ¶5 Subsequently, Welu proposed to irrigate the area using a pivot irrigation system. This proposal was memorialized in an email sent to Steve Held in December 2010 which, because of its importance to the underlying action, we restate here: 1. I would pick up the primary costs associated with set up and installation. 2. I would expect you to be responsible for all on going [sic] maintenance and operational costs . . . 4 In other words, this is a 1 time cost for me. You will maintain them and operate them. You will make sure we have green fields to hunt on. A pump goes out, you replace it. I think that is a reasonable expectation given the amount of investment I am looking at. Agreed? Held responded simply, “Its agreed.” ¶6 To fulfill his end of the agreement, Welu selected and hired Agri-Systems, Inc. (Agri) to provide and install the pivot irrigation system, and drew up plans indicating where the irrigation was to occur. Held had prepared the relevant areas and was ready to plant alfafa by April 2011. However, due to installation delays not attributable to either Held or Welu, the irrigation system was not installed until October 2011. Welu and Agri maintain that by October 2011, the irrigation system was fully installed, as evidenced by the fact that Agri had provided Welu with a run through of the system and then winterized it in place. Held disputes whether the irrigation system was fully installed at this point. Of note is a disagreement that occurred between Held and Agri during the installation process. Agri advised Held that he would need to move a portion of a fence on his property because it was hindering the path of movement of one pivot, which prevented the irrigation system from completing a full circle. Further, Agri advised Mr. Held that failure to move the fence would result in the pivot being damaged. ¶7 In early 2012, Welu scheduled a training session with Agri for the purpose of instructing Held on how to operate and maintain the irrigation system. Held did not attend. Nonetheless, at the start of the 2012 growing season, Held proceeded to operate the irrigation system. As a result, a pivot head caught on a fence and was damaged, rendering the pivot unusable until repaired. Further, during Held’s operation of the 5 system, a motor was burned out and a supply pipe burst. Due to the damage, the irrigation system was taken offline in May 2012. Shortly after the irrigation system was taken offline, Welu sent an email to Held stating that, “I have instructed Agri to not do any more work on the pivots until I give them further directions,” effectively preventing Held from charging repairs to Welu’s account or utilizing the parties’ original service provider. The pivot irrigation system remained unrepaired and offline during May and June of 2012. ¶8 On July 8, 2012, Welu notified Held that he had sold the pivots and that Agri would enter the property to dismantle and remove the pivots, electrical boxes, motors, pumps, and other components not buried in the ground. After the workers arrived on the property and commenced removing the system, successfully dismantling one of the pivots, Held directed them to leave the property. While they left the dismantled pivot on the property, the workers left without reassembling the system. ¶9 Following Held’s refusal to allow his workers to remove the irrigation system, Welu filed the instant action against Held and THSH arguing that the pivot irrigation system should be returned to his possession, that the Defendants had converted his property by exercising unauthorized dominion or control over the irrigation system, that Defendants had been unjustly enriched through their possession of the irrigation system, and that the Defendants have caused him damages by way of lost opportunity and revenue. Held and THSH filed counterclaims against Welu, alleging that Welu had trespassed when he and his workers attempted to remove the irrigation system, that Welu had breached the contract between the two parties by failing to perform (arguing that the 6 irrigation system was never completely or correctly installed, and therefore not operational), that allowing Welu to remove the irrigation system would breach the agreement between the parties, and breach of a general duty of care for the alleged operation of an “unlicensed” outfitting or hunting guide operation. ¶10 The parties tried the case before the Honorable Michael B. Hayworth on March 24 and 25, 2015. The District Court entered Findings of Fact, Conclusions of Law, and an Order resolving the case in favor of the Defendants. The District Court determined that the irrigation system, in its entirety, was a fixture and attached to the real property owned by THSH and, therefore, the irrigation system was owned by THSH. Further, the District Court determined that Welu was not liable to Held and THSH under any of their alleged counterclaims and, similarly, that Held and THSH were not otherwise liable to Welu under any of his alleged claims. ¶11 On appeal, Welu argues the District Court erred in concluding that the entire pivot irrigation system was a fixture, that the District Court erred by determining that Held did not breach the parties’ agreement, and that the District Court erred in concluding that Held and THSH were not unjustly enriched by being allowed to retain the pivot irrigation system on their property. STANDARD OF REVIEW ¶12 “We review findings of fact in a civil bench trial to determine if they are supported by substantial credible evidence,” while viewing the evidence in the light most favorable to the prevailing party. JTL Group, Inc. v. New Outlook, LLP, 2010 MT 1, ¶ 30, 355 Mont. 1, 223 P.3d 912 (citation omitted). “Conclusions of law in this context are also 7 reviewed for correctness.” JTL Group, Inc., ¶ 30 (citation omitted). “We apply de novo review to mixed questions of law and fact.” Mlekush v. Farmers Insurance Exchange, 2015 MT 302, ¶ 8, 381 Mont. 292, 358 P.3d 913 (citation omitted). DISCUSSION ¶13 1. Did the District Court err in determining that the entire pivot irrigation system constituted a fixture? ¶14 This Court addressed the issue of whether an irrigation system constituted a fixture under Montana law in Schwend v. Schwend, 1999 MT 194, ¶ 11, 295 Mont. 384, 983 P.2d 988. When determining whether the irrigation pipe at issue in Schwend was a fixture, we stated “we review a district court’s conclusion of law for correctness,” citing Carbon County v. Union Reserve Coal Company, 271 Mont. 459, 898 P.2d 680 (1995). Schwend, ¶ 11. Although our statement was correct, we use this opportunity to briefly clarify the standard of review we apply to a district court’s determination as to whether a fixture exists. ¶15 Whether an irrigation system constitutes a fixture depends upon certain factual considerations which, in the context of a civil bench trial, we would review for clear error, determining whether they are supported by substantial evidence. JTL Group, Inc., ¶ 30. However, such a determination also requires us to determine whether those facts satisfy the legal standard provided by § 70-15-103, MCA, and our precedent in Schwend. We apply de novo review to the question of whether facts satisfy a legal standard. BNSF Ry. Co. v. Cringle, 2012 MT 143, ¶ 16, 365 Mont. 304, 281 P.3d 203. Therefore, though 8 the factual findings are reviewed for clear error, the question of whether an irrigation system constitutes a fixture is reviewed de novo. ¶16 Personal property may become a fixture pursuant to § 70-15-103, MCA, which provides, in relevant part, that “[a] thing is deemed to be affixed to land when it is . . . permanently attached to what is thus permanent as by means of cement, plaster, nails, bolts, or screws.” Section 70-15-103(4), MCA. We consider the following factors when determining whether personal property has become affixed to the realty: “‘(1) annexation to the realty, (2) an adaptation to the use to which the realty is devoted, and (3) intent that the object become a permanent accession to the land.’” Schwend, ¶ 15 (quoting Pacific Metal Co. v. Northwestern Bank of Helena, 205 Mont. 323, 329, 627 P.2d 958, 961 (1983)). ¶17 We emphasize that, as illustrated by our decision in Schwend, the specific question of whether an irrigation system is a fixture requires application of the annexation, adaptation, and intent test that is unique to the facts of each case. Schwend, ¶ 27. Therefore, we address each factor in turn. A. Annexation ¶18 “The clearest cases of annexation are those in which the equipment has some characteristic of permanent physical attachment to the land, such as being buried within the land, or consisting in part of concrete slabs partially buried within the land.” Schwend, ¶ 28. ¶19 Welu argues the District Court erred in determining that the entire pivot irrigation system was annexed to THSH’s real property because the aboveground elements, 9 including the “spans, towers, rotophases, and electrical panels” were distinct pieces of equipment, relatively easy to remove and relocate. Welu appropriately directs this Court to Schwend, where we held that portions of an irrigation system may be personal property, while other portions may be fixtures. Schwend, ¶¶ 30, 34. In Schwend, we determined that annexation did not occur where the irrigation piping at issue had been removed and stacked away from the irrigated fields, was attached to the irrigation system only during the irrigation season, had been used on other property apart from the property at issue in the proceeding, and where testimony tended to show that some of the irrigation pipe at issue was owned by a third party. Schwend, ¶¶ 29-30. Further, we described the specific irrigation pipe at issue in Schwend as follows: “Plastic pipe with gates, or windows on one side that can be opened to regulate water flow onto a field. This pipe comes in lengths of twenty or thirty feet and diameters of six, eight, and ten inches. A farmer or rancher uses the pipe by moving the needed lengths to the field on a special trailer and laying them out end-to-end in the proper location. The pipe is then connected to riser pipes that are permanently attached to water lines buried underground. While the installation of the water mainline and the riser pipes clearly involves substantial earthwork, the gated pipe is specifically designed to be lightweight and portable for use in more than one field. A farmer or rancher using this system needs the gated pipe to irrigate. However, any farmer or rancher with a riser pipe connection could attach the gated pipe and irrigate his field with it. The pipe remains above ground at all times, and it is stored away from the field when not in use.” Schwend, ¶ 25 (emphasis added) (quoting Wyo. State Farm Loan Bd. v. Farm Credit Sys. Capital Corp., 759 P.2d 1230, 1231 (Wyo. 1988)). ¶20 The factual circumstances surrounding the pivot irrigation system at issue here are noticeably different from those we addressed in Schwend. There is no evidence in the record that the parties intended the pivot irrigation system to be moved to different 10 locations on different fields. Instead of removing and stacking the pipes as the parties did in Schwend, this pivot irrigation system was winterized in place. We note further that this pivot irrigation system was not specifically designed to be used in more than one location, as the Schwend irrigation pipe was. Unsurprisingly, there was no evidence that the irrigation system at issue here had been used on other properties previously. In order to install the pivot irrigation system, Agri filled in existing, although inoperable, irrigation ditches from the previous flood irrigation system on THSH’s property. Further, each pivot arm had to be assembled in specific lengths pursuant to its unique location on the THSH property. ¶21 Given these particular facts, we find that there was substantial evidence tending to show annexation in this instance which outweighed any evidence against such a conclusion. Therefore, we hold that the District Court did not err in concluding that the pivot irrigation system was factually annexed to THSH’s real property within the meaning of our precedent involving fixtures. B. Adaptation ¶22 The second factor considered when determining whether a piece of personal property constitutes a fixture is whether the property has been adapted to the use to which the realty is devoted. Schwend, ¶ 15. In Schwend, we determined that, although the irrigation system at issue was located on irrigated farmland and necessary for the continued use of the land for cultivating irrigated crops, the irrigation pipes at issue had not been adapted to the land because they were not “an integral part of that system, nor [were they] adapted to the particular ground being farmed in the way that the remainder 11 of the system was.” Schwend, ¶ 31. Welu argues the District Court erred in determining that the pivot irrigation system was adapted to the realty because Held had not previously irrigated the land at issue and because the system was capable of use on other property. However, there are particularly persuasive factual circumstances we noted in Schwend that Welu ignores. Specifically, the determinative question here is whether the pieces of the pivot irrigation system Welu sought to remove were an integral part of the pivot irrigation system as a whole, and whether the removable components were adapted to the particular real property at issue. ¶23 As noted above, the components Welu sought to remove included the “spans, towers, rotophases, and electrical panels.” In other words, Welu argues that he should be able to remove, essentially, every aboveground piece of the pivot irrigation system. However, under the factual circumstances present in this case, it is indisputable that these components constituted an integral part of the pivot irrigation system as a whole. The record reflects that the installation of the pivot irrigation system required that Agri visit the THSH property and assemble each individual pivot arm in specific lengths, tailored to fit its location on THSH’s property. Further, pivot arms were assembled in specific lengths for five separate locations on the Ranch, and were winterized in place once installed, rather than removed for storage. Under these factual circumstances, we determine that the components Welu sought to remove from THSH’s property were specifically adapted to the realty. Therefore, because we determine that the components at issue were both an integral part of the pivot irrigation system and were specifically 12 adapted to the realty at issue, we conclude that the pivot irrigation system as a whole was adapted to the realty. C. Intent ¶24 When addressing the intent factor in its Findings of Fact and Conclusions of Law, the District Court stated that “[s]ignificantly, the intent issue is one of determining objective intent.” (Emphasis in original.) This is not a complete statement of the law. In Schwend, we noted that of the three factors, “the intent of the parties [is given] the most weight and is the controlling factor.” Schwend, ¶ 15. However, we also stated that, while all parties in Schwend had testified as to their intent regarding the irrigation pipe, “the controlling intent is the objective intent of those who installed the purported fixture.” Schwend, ¶ 32 (emphasis added). The objective intent of the installing party “is deduced by the court from all of the circumstances surrounding the installation of the purported fixture.” Schwend, ¶ 32. Further, we find instructive a statement by the Wyoming Supreme Court, which noted “[t]his intention does not refer to the annexor’s subjective state of mind; rather it is the objective intention the law can infer an ordinary reasonable person to have based on the facts and circumstances in the record.” Amoco Prod. Co. v. Wyo. State Bd. Of Equalization, 15 P.3d 728, 733 (Wyo. 2001). ¶25 Prior to the installation of the pivot irrigation system, the land Welu identified as suitable for planting food plots for attracting game animals had either not been previously used for agricultural purposes or was not currently being irrigated. Initially, Welu endeavored to restore the existing, but inoperable, flood irrigation system located on TSHS’s property. When those efforts failed, he sought to install the pivot irrigation 13 system at issue in this case. During the installation of the pivot irrigation system, Welu and Agri filled in portions of the ditches that were part of the existing, but inoperable, flood irrigation system. Both systems were purposed towards creating irrigated alfalfa fields with the help of Held, the last cutting of which would be left on the field in the fall to attract game animals. Further, Welu testified that the agreement concerning the pivots was not limited to a specific timeframe, but would carry through as long as the parties owned their respective properties and Welu owned his exclusive right to hunt throughout the entire Ranch. Specifically, he testified that he may have the hunting rights “for the next thirty years.” ¶26 Under the facts of this case, it is clear that Welu intended to create perennial hunting grounds through the use of irrigation and the assistance of Held on the Ranch for at least the next thirty years. Filling in portions of the existing irrigation ditches located on THSH property is further evidence of the fact that Welu intended the pivot irrigation system to be permanent. We determine that the objective circumstances surrounding Welu’s installation of the pivot irrigation system illustrate that it was his intent for the system to become a permanent fixture on the land. ¶27 Therefore, because the pivot irrigation system was annexed to the realty, adapted to the realty, and installed with the intent to remain permanently on the realty, the District Court did not err in holding that the pivot irrigation system was a fixture attached to the realty owned by THSH. ¶28 2. Did the District Court err in concluding that Held did not breach the parties’ agreement concerning the pivot irrigation system? 14 ¶29 As noted above, Held had two primary obligations under his agreement with Welu: first, he would be responsible for all ongoing maintenance and operational costs; and second, he would ensure Welu had green fields to hunt on. The District Court determined that as of October 2011 Welu had fulfilled his obligation to install a functioning irrigation system on Held’s property, triggering Held’s duty to maintain the irrigation system and provide green fields for hunting purposes. On May 3, 2012, citing ongoing issues with the irrigation system, Welu informed Held that he had instructed Agri “not to do any more work on the pivots until I give [Agri] further directions.” The District Court noted that, had Welu not interfered and prevented Agri, the contractor who had installed the pivot irrigation system, from working on the pivots, Held would have had sufficient time, as of May 3, 2012, to plant and pivot irrigate an alfalfa crop to provide Welu’s required “green fields to hunt on” by the start of the fall hunting season, in satisfaction of the contract. Further, as noted by Welu on appeal, the District Court determined that Held had not breached the agreement between the parties as of early July 2012, when Welu attempted to remove the pivot irrigation system from Held’s property and subsequently filed the instant lawsuit. ¶30 The interpretation and construction of a contract is a question of law which, in the context of a District Court’s ruling in a civil bench trial, we review for correctness. See Bos Terra, LP v. Beers, 2015 MT 201, ¶ 17, 380 Mont. 109, 354 P.3d 572. “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” Section 28-3- 301, MCA. Further, “[t]he whole of a contract is to be taken together so as to give effect 15 to every part if reasonably practicable, each clause helping to interpret the other.” Section 28-3-302, MCA. ¶31 It is undisputed that, at the time they entered into the agreement concerning the pivot irrigation system, it was the intention of the parties to provide Welu with green fields on which to hunt. Indeed, the record reflects that Welu’s sole purpose in acquiring land from Held in the first place was to enjoy the hunting that he thought the area could be manicured to offer. Accordingly, as the agreement provided, Held’s duty to maintain and repair the pivot irrigation system was intended to “make sure we have green fields to hunt on.” The District Court found that Held had not breached the parties’ agreement as of the time that Welu directed that Agri not undertake any more work on the pivots, because there was still sufficient time for Held to repair the pivot irrigation system and cultivate green fields for hunting prior to the start of the 2012 hunting season, but for Welu’s interference. The facts found by the District Court in this regard are supported by substantial credible evidence. Therefore, we conclude that the District Court did not err in determining that, as of July 2012, when Welu commenced this lawsuit, Held had not breached the parties’ agreement. ¶32 3. Did the District Court err in determining that Held and Twin Hearts Smiling Horses, Inc., were not unjustly enriched? ¶33 “Unjust enrichment is an obligation created by law in the absence of an agreement between the parties.” Estate of Pruyn v. Axmen Propane, Inc., 2009 MT 448, ¶ 63, 354 Mont. 208, 223 P.3d 845. In other words, courts have applied the doctrine of unjust 16 enrichment when a contract in law is implied by the facts and circumstances of the case, but no actual contract exists between the parties. ¶34 The District Court determined that the parties’ email exchange formed an express contract between the parties. The District Court noted that the agreement required Welu to provide the “set up and installation” of the pivot irrigation system, and required Held to be “responsible for all on going maintenance and operational costs.” Further, the District Court determined that Welu’s purpose for the contract was to attain “green fields to hunt on” during the hunting season, and that Held’s purpose was to receive irrigation equipment to support the growth of harvestable crops from the irrigated area, as long as he left the final cutting standing to provide the “green fields to hunt on” required by Welu. ¶35 Further, while Welu repeatedly refers to the “Pivot Maintenance Agreement” in his arguments to this Court, he also argues that, while there was an agreement between the parties as to the maintenance of the pivot irrigation system, there was no agreement as to the permanent ownership of the system. Essentially, Welu asks this Court to hold that, even when there is a contract between the parties specifically relating to the property at issue in a proceeding, unjust enrichment should be an available remedy if the contract does not specifically mention who has permanent ownership of the property at issue. We decline to do so in this case. ¶36 Neither party disputes the existence of a contract involving the pivot irrigation system at issue. Because it is undisputed that a contract exists, Welu’s unjust enrichment arguments are not well taken. Estate of Pruyn, ¶ 63. The Dissent would have this Court 17 reach the merits of Welu’s unjust enrichment claim, arguing that because the contract did not expressly cover ownership of the pivot irrigation system, the contract does not preclude an unjust enrichment claim. We disagree. ¶37 The Dissent relies on Robertus v. Candee, 205 Mont. 403, 407, 670 P.2d 540, 542 (1983), to support its premise that “providing restitution to a contracting party who has a claim against the recipient of his performance is the well-settled principle of equity in other jurisdictions.” Dissent, ¶ 55. Robertus is factually distinguishable from the instant case. In Robertus, the plaintiffs had leased two tracts of land from the defendant. Robertus, 205 Mont. at 405, 670 P.2d at 541. In the fall of 1977, a dispute arose as to the amount of rent owed for one of the tracts of land. Robertus, 205 Mont. at 405-06, 670 P.2d at 541. At that time, the plaintiffs had prepared and planted a portion of that tract, incurring certain expenses. Robertus, 205 Mont. at 406, 670 P.2d at 541. The following spring, the defendant “informed [the plaintiffs] that they could no longer enter his land and terminated both lease agreements.” Robertus, 205 Mont. at 406, 670 P.2d at 541. The defendant proceeded to harvest and sell the wheat the plaintiffs had planted. Robertus, 205 Mont. at 406, 670 P.2d at 541. Subsequently, the plaintiffs sued to recover the monetary value of the benefit the defendant had gained by the work plaintiffs had put into the land, which they alleged to be $55,000. Robertus, 205 Mont. at 406, 670 P.2d at 541. The District Court noted that while the plaintiffs were precluded from suing under the lease because the Statute of Frauds rendered the lease an unenforceable oral agreement, they were entitled to recover based on the theory of unjust enrichment. Robertus, 205 Mont. at 407, 670 P.2d at 542. On appeal, this Court affirmed, concluding 18 that “where one party repudiates a contract or breaches it by non-performance, the injured party may seek restitution of the unjust enrichment whether the Statute of Frauds applies or not.” Robertus, 205 Mont. at 407, 670 P.2d at 542. ¶38 In summary, Robertus dealt with circumstances where the non-breaching injured party was suing the breaching party to recover a benefit retained by the breaching party. Because Welu is suing Held, who had not breached the agreement at the time of the suit, Robertus is of no assistance at all here. As the Dissent points out, the Restatement has identified circumstances in which a breaching party may recover from a non-breaching party based on the theory of unjust enrichment; however, these circumstances are not present in the instant case. ¶39 In full, § 374 of the Restatement (Second) of Contracts, entitled Restitution in Favor of Party in Breach, states: (1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party’s breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach. (2) To the extent that, under the manifested assent of the parties, a party’s performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. ¶40 The rule cited by the Dissent is grounded in the theory that where a party justifiably refuses to perform based on the other party’s breach, unjust enrichment serves as a vehicle to reimburse him for the benefit he has conferred on the party who has already breached the agreement. Under the Dissent’s interpretation of the case, Welu is 19 the party justifiably refusing to perform citing Held’s apparent breach. Dissent, ¶¶ 54-55. However, the District Court found, and we agree, that Held had not breached the agreement as of the date Welu sought to remove the pivot irrigation system and subsequently filed suit. Therefore, the predicate required by § 374 of the Restatement— that the party be justified in his or her refusal to perform based on the other party’s breach—is not present here. ¶41 The Dissent’s argument for relief under the doctrine of unjust enrichment is not only precluded by the Restatement itself, but is also relief that Welu did not request under that theory. Dissent, ¶¶ 56-57. Welu recognized that, if this Court determined the pivot irrigation system constituted a fixture, which we have, he is limited to the recovery of monetary damages. The Dissent, on the other hand, citing § 374 of the Restatement (Second), contends that unjust enrichment should serve as a vehicle to return the aboveground portions of the pivot irrigation system that were “wrongfully” retained by Held, to Welu. Section 372 of the Restatement (Second) of Contracts explicitly states that specific restitution, meaning restitution of identifiable assets, is not available under the rule stated in § 374. ¶42 Further, even if we were to assume that it was possible for Welu to proceed on an unjust enrichment claim, applying the doctrine in this case would contravene decades of this Court’s well-established precedent. The Dissent urges us to apply the doctrine of unjust enrichment based on the theory that an implied contract exists as to ownership of the pivot irrigation system. Dissent, ¶ 56. The Dissent goes on to state that “unjust 20 enrichment does not always require a wrongful act.” Dissent, ¶ 57. This is a misleading characterization of the law. ¶43 This Court has yet to find unjust enrichment stemming from an implied contract appropriate, absent some element of fault or misconduct on the part of the defendant. See, e.g., Sebena v. State, 267 Mont. 359, 367, 883 P.2d 1263, 1268 (1994); Ragland v. Sheehan, 256 Mont. 322, 327, 846 P.2d 1000, 1004 (1993); Randolph V. Peterson, Inc., v. J.R. Simplot Co., 239 Mont. 1, 8, 778 P.2d 879, 883-84 (1989); Brown v. Thornton, 150 Mont. 150, 156, 432 P.2d 386, 391 (1967); Estate of Pruyn, ¶ 64; Hinebauch v. McRae, 2011 MT 270, ¶ 29, 362 Mont. 358, 264 P.3d 1098; Albinger v. Harris, 2002 MT 118, ¶ 21, 310 Mont. 27, 48 P.3d 711; Lefeber v. Johnson, 2009 MT 188, ¶ 26, 351 Mont. 75, 209 P.3d 254. The Dissent argues that wrongful acts sufficient to satisfy the requirement of our precedent occurred in either the purported violation of the “inordinate amount of trust” Welu had in Held, for which the Dissent apparently finds support in the record, or in the form of Held’s refusal to allow Welu to remove portions of the pivot irrigation system. Dissent, ¶¶ 57-58. Implicit in these arguments is the Dissent’s refusal to address this case within the temporal snapshot presented to this Court on appeal. The District Court determined that, at the time of Welu’s actions in May and July of 2012, Held would still have been able to produce the “green fields to hunt on” required by Welu under the contract. Therefore, there had been no breach of the agreement by Held and, at the time the case was brought, no actual violation of the “inordinate amount of trust” Welu had in Held. In short, because the Court found no fault or misconduct on the part 21 of Held, our precedent does not support the imposition of an unjust enrichment recovery against him. ¶44 We acknowledge that a constructive trust may be imposed in the absence of any wrongdoing on the part of the defendant, see Northern Cheyenne Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 29, 368 Mont. 330, 296 P.3d 450, but Welu did not argue in the District Court or on appeal for the imposition of a constructive trust, and we decline to sua sponte impose such a trust here. In conclusion, the District Court did not err in determining that Welu is not entitled under our precedent to recover from Held on the basis of unjust enrichment. CONCLUSION ¶45 Based on the foregoing, we hold that the District Court did not err in determining that the pivot irrigation system was a fixture under the facts of this case, that the District Court did not err in determining that Held did not breach the parties’ agreement, and that the District Court did not err in concluding that Held and THSH were not unjustly enriched by the installation of the pivot irrigation system at issue in this case. Affirmed. /S/ PATRICIA COTTER We Concur: /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ MICHAEL E WHEAT 22 Justice Laurie McKinnon, dissenting. ¶46 I disagree that the aboveground portions of the pivot irrigation system were a permanent fixture attached to Held’s land. I also disagree that a claim for unjust enrichment is precluded when ownership is determined by operation of statute, rather than pursuant to principles of contract law. A. The record does not support a conclusion that the pivot irrigation system was a permanent and physical attachment to Held’s property. ¶47 I disagree with the Court’s conclusion that the aboveground portions of the pivot irrigation system are a fixture. First, the system does not meet the criteria under Schwend, where annexation is most clearly shown by characteristics consistent with permanent, physical attachment to the land. Schwend, ¶ 28. The record before us shows that the nature of a pivot irrigation system, and particularly the one at issue here, is, of necessity, mobile. These systems are mobile to an extent that if they are not correctly adjusted, they may be damaged by obstacles in their path, as Held discovered when he failed to account for an obstructing fence, despite Welu’s warning. Even though these systems are typically custom-cut for an individual property, as they were here, there was evidence in the record that the aboveground portions of these systems are commonly removed and often disassembled and sold. In fact, prior to filing suit, Welu had already explored selling the irrigation system at issue here, and sought to use it on his other properties in Texas. Further, by the time Held ejected Agri from the land, Agri had already disassembled a portion of the system. Given these facts alone, I cannot see that 23 the aboveground portions of the system exhibited characteristics of being permanently, physically attached to the land. ¶48 Second, to bolster its finding to the contrary, the Court conflates the intent of the parties with sufficient physical characteristics of permanence under Schwend: “There is no evidence in the record that the parties intended the pivot irrigation system to be moved to different locations on different fields.” Opinion, ¶ 20. Intent of the parties as to mobility has no bearing on the pivot’s physical characteristics. Additionally, in that same paragraph, the opinion notes that “there was no evidence the irrigation system at issue here had been used on other properties previously.” Opinion, ¶ 20. Essentially, the Court finds persuasive evidence that the system is permanently affixed from the fact that it was bought new, and not previously used. I cannot align with either of those rationales, and thus do not believe the system can be considered annexed under Schwend.1 Welu’s aboveground pivot system, which was designed to move as it irrigates and was in the process of being dismantled, cannot reasonably be considered a permanent fixture to Held’s land. ¶49 Lastly, I disagree that the intent prong of Schwend’s fixture test is met here. The Court correctly acknowledges that Welu’s intent, as the installing party, bears the most 1 In Schwend, we observed that funds to purchase irrigation systems are obtained frequently through a government agency, which holds a purchase money security interest. While the record in these proceedings is silent as to the source of funding for the irrigation system, it cannot seriously be contended that most farmers and ranchers in Montana would ever be able to obtain “the funds to purchase the irrigation pipe through a government agency, which [would hold] a purchase money security interest in the pipe[,]” if the pipe and aboveground portions of the system were destined to become part of the realty it served. This suggests that the irrigation systems are commonly seen in the agricultural and finance industries as removable in the event the underlying debt is not paid. Schwend, ¶ 33. 24 weight. However, while I agree that Welu meant to create “perennial hunting grounds through the use of irrigation[,]” Opinion, ¶ 26, it does not necessarily follow that this intent can be equated with Welu’s intent for the system to be a permanent fixture. I cannot find in the record evidence that he meant for the system to remain on the land for any longer than he was able and so disposed to hunt upon it. Indeed, Welu’s stated intent to sell the aboveground portions or use them on his other properties, bolstered in fact by Agri’s partial dismantling of those aboveground components, is evidence Welu always intended the system to be removable. An intent that an object remain for so long as a person wishes or is able to hunt—an intent subject to whim and fancy—does not equate to an intent that the object forever remain on the land. Given these analytical inconsistencies of the Court respecting both annexation and intent, it is my opinion that the aboveground portions of this pivot irrigation system do not constitute a fixture. B. A claim for unjust enrichment is not precluded when ownership is determined by operation of statute, rather than pursuant to principles of contract law. ¶50 Even if the irrigation system is a fixture, however, I disagree too, that Welu should be precluded from restitution under the theory that Held was unjustly enriched. The Court states in ¶ 35 that, “[e]ssentially, Welu asks this Court to hold that, even when there is a contract between the parties specifically relating to the property at issue in a proceeding, unjust enrichment should be an available remedy if the contract does not specifically mention who has permanent ownership of the property at issue. We decline to do so in this case.” Denying Welu the remedy of restitution under the theory of unjust enrichment, on the basis that the contract was indefinite or failed to mention ownership, 25 contravenes well-established principles of equity that are evident in our own precedent and the Restatement of Restitution and Unjust Enrichment. Most importantly however, the rationale for denying Welu’s restitution is inconsistent with the findings of the lower court which have been affirmed through this Court’s fixture analysis. ¶51 The Court’s fixture analysis and the unjust enrichment issue are intertwined in a subtle way. Left out of the Court’s Opinion is the reason why there is a fixture analysis of the irrigation system in the first place. To be fair, the Court does note that the District Court found that because the irrigation system is determined to be a fixture, Held owns it. However, the Court does not explain the reason why this is so: It is by operation of law, and not as a matter of contractual interpretation. Pursuant to § 70-18-101, MCA, a fixture installed to the land of another belongs to the landowner in the absence of an agreement as to its removability, unless the owner of the land chooses to require the person to remove it. Thus, in the absence of an agreement, the landowner may elect whether to keep the fixture attached to the land or require that it be removed. Significantly, operation of the statute which occurs in the absence of an agreement, does not foreclose a claim of unjust enrichment when the landowner elects not to return the fixture. ¶52 Here, the District Court examined the contract between the parties; found that it had no term governing ownership or removability of the pivot irrigation system; determined that the irrigation system constituted a fixture; and then, as a result, declared the system owned by Held, even though Welu had purchased it. By affirming the District Court’s fixture analysis, this Court employed § 70-18-101, MCA, and necessarily found 26 there was no agreement between the parties regarding ownership or removal of the pivot system. Nonetheless, when addressing Welu’s unjust enrichment argument, the Court reinjects principals of contract law by indicating the contract was missing an important term—ownership of the system—which precluded Welu’s claim of unjust enrichment. Opinion, ¶¶ 35-36. Section 70-18-101, MCA, however, determines ownership as a matter of law in the absence of an agreement between the parties—a significant distinction the Court fails to grasp. As a result, Welu’s unjust enrichment claim fails and Held gains a windfall in the form of a million dollar irrigation system which, as the trial court acknowledged in its findings of fact, was never meant to primarily benefit him. Welu, who was meant to be the primary beneficiary of the irrigation system, in turn gains nothing and is in fact deprived of the very property from which he was to benefit under the contract. Held gains a windfall where none was ever intended, to the detriment of Welu. Held is therefore unjustly enriched and Welu should be afforded restitution. ¶53 The inconsistency in the Court’s rationale underlying its ownership and fixture analysis is overlooked by the Court because it dismisses Welu’s equitable plea out of hand, based on an improperly applied rule of Pruyn.2 I would instead reason in a manner consistent with the District Court’s findings on the fixture issue: since the contract between the parties contemplated only maintenance of the system, and not ownership of 2 Pruyn requires that to consider unjust enrichment, there must not be an agreement between the parties. Pruyn, ¶ 63 (citing Maxted v. Barrett, 198 Mont. 81, 87, 643 P.2d 1161 (1982)). See Bradkin v. Leverton, 26 N.Y.2d 192, 257 N.E.2d 643, 309 N.Y.S.2d 192 (1970); Fox v. Lummus Co., 524 F. Supp. 27, 29-30 (S.D.N.Y. 1981). At best, this is a poorly articulated rule we incorporated from a New York Federal District Court ruling that does not comport with the rule in other jurisdictions or with the Restatement of Restitution: that restitution from unjust enrichment requires there must not be an adequate remedy at law available to the complainant. 27 the system;3 and since ownership was in fact statutorily determined; there was no contract between the parties that would preclude an unjust enrichment analysis under Pruyn, ¶ 63. In the absence of a contract, “[a]n implied contract . . . springs from principles of natural justice and equity, based on the doctrine of unjust enrichment.” Ragland v. Sheehan, 256 Mont. 322, 327, 846 P.2d 1000, 1004 (1993). I would therefore reach the issue of unjust enrichment left unexamined by the Court. ¶54 To reach Welu’s unjust enrichment claim would be consistent with the Restatement (Third) of Restitution and Unjust Enrichment, our own precedent, and the law in other jurisdictions. Our rule of Pruyn notwithstanding, the Restatement (Third) of Restitution and Unjust Enrichment clearly contemplates recovery in unjust enrichment when an existing agreement is indefinite. A person who renders performance under an agreement that cannot be enforced against the recipient by reason of (a) indefiniteness, or (b) the failure to satisfy an extrinsic requirement of enforceability such as the Statute of Frauds, has a claim in restitution against the recipient as necessary to prevent unjust enrichment. Restatement (Third) of Restitution and Unjust Enrichment, § 31 (2011) (emphasis added). The contract here was indefinite because it lacked the material terms of severability and ownership of the irrigation system. Further, even if, as the District Court concluded, Welu performed, but breached the contract, the Restatement still contemplates Welu’s recovery in § 36: “(1) A performing party whose material breach prevents a 3 See fact 62 in Findings of Fact and Conclusions of Law of the District Court, where the court examines what it considers to be objective evidence of ownership, and outside the scope of the existing contract. 28 recovery on the contract has a claim in restitution against the recipient of performance, as necessary to prevent unjust enrichment.” Restatement (Third) of Restitution and Unjust Enrichment, § 36 (2011). Even if the issue was not outside of contract, these facts also comport with the Restatement (Second) of Contracts, § 374, and cmt. (a) of the same: (1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party’s breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach. (2) To the extent that, under the manifested assent of the parties, a party’s performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. Cmt. (a) Restitution in spite of breach. The rule stated in this Section applies where a party, after having rendered part performance, commits a breach by either non-performance or repudiation that justifies the other party in refusing further performance. It is often unjust to allow the injured party to retain the entire benefit of the part performance rendered by the party in breach without paying anything in return. The party in breach is, in any case, liable for the loss caused by his breach. If the benefit received by the injured party does not exceed that loss, he owes nothing to the party in breach. If the benefit received exceeds that loss, the rule stated in this Section generally gives the party in breach the right to recover the excess in restitution. Restatement (Second) of Contracts, § 374 (1981) (emphasis added). The Court admonishes our examination of the Restatement proposition above, but the Court transposes the position and situation of the parties and thus the Court’s analysis is fundamentally flawed. If, as the District Court acknowledged, Welu is the breaching 29 party and there was still time for Held to have performed “but for Welu’s interference,”4 (Opinion, ¶ 31), the Restatement, in both the body of § 374 and comment (a), clearly contemplates Welu’s recovery in restitution. Regardless, focusing as the Court does on a contractual analysis and what party breached the contract, while leaving unexamined the Restatement on Restitution and Unjust Enrichment, misses the larger and much more important point—the unjust enrichment here arose not from the contract between the parties, but by operation of statute. With Held’s unjust enrichment occurring by operation of statute and thereby wholly outside of contract, it is in the end immaterial what party breached a contract that was indefinite as to the term of ownership. ¶55 Even were we to discount the Restatements, our precedent prior to Pruyn and Schwend have acknowledged that the harsh results rendered by operation of law against a party to a contract concerning a permanent improvement to land should not preclude that party’s recovery in restitution under a theory of unjust enrichment. “Where the labor or money of a person has been expended in a permanent improvement which enriches the property of another, under an oral agreement which cannot be enforced under the Statute of Frauds, that person is entitled to an award for the amount by which such improvements unjustly enriches the property.” Robertus v. Candee, 205 Mont. 403, 407, 670 P.2d 540, 542 (1983) (citing Smith v. Kober, 189 N.W. 377 (Neb. 1922); Restatement (Second) of Contracts § 375 (1981)). Although the Court distinguishes Robertus upon its facts, 4 In its findings of fact, the District Court found that Held did not perform his obligation to repair the system, ostensibly because Welu had instructed Agri to stop maintaining the system. This meant that “Held did not repair the pivot irrigation system to full operation during May or June 2012.” 30 (Opinion, ¶¶ 37-38), the Court fails to appreciate the significance of Robertus and the proposition for which it is cited: without compensation for the additional value which improvements have conferred upon the property of another by operation of law, not contract, it is against conscience that one person shall be enriched to the cost and injury of another. Providing restitution in such circumstances, even to a contracting party who has a claim against the recipient of his performance, is also the well-settled and a general principle of equity in other jurisdictions. “The essential elements of a quasi-contract or quantum meruit claim are that the plaintiff provided to the defendant materials or services at the defendant’s request or with the acquiescence of the defendant, that the materials or services had reasonable value, and that the defendant, despite the demands of the plaintiff, has failed and refused to pay the reasonable value of such materials or services.” Berra v. Bieg Plumbing Co., Inc., 584 S.W.2d 116, 118 (Mo. Ct. App. 1979) (cited in Olathe Millwork Co. v. Dulin, 189 S.W.3d 199, 206 (Mo. Ct. App. 2006) (finding that there was no valid, enforceable contract between the parties where the agreement at issue was indefinite because it lacked essential terms). ¶56 Since I think it clear that both the District Court and this Court conclude there was no contract as to ownership of the pivot system, and ownership was in fact determined only on the basis of a statute, I would find Welu is not precluded from recovering in equity under a theory of unjust enrichment, and that his plea as to unjust enrichment should be examined. We stated in Pruyn that: Unjust enrichment is an obligation created by law in the absence of an agreement between the parties. In other words, courts have applied the theory of unjust enrichment when no contract exists between the parties, 31 but a contract in law is implied. The doctrine of unjust enrichment is an equitable means of preventing one party from benefiting from his or her wrongful acts. Among other things, a claim of unjust enrichment requires a plaintiff to show the element of misconduct or fault on the part of the defendant or that the defendant somehow took advantage of the plaintiff. Pruyn, ¶¶ 63-64 (citations omitted) (emphasis added). ¶57 In my opinion, Pruyn would not preclude Welu’s recovery. The District Court found the following fact: Unjust enrichment is an equitable means of preventing one party from benefiting by his or her wrongful acts, and, as such, requires a showing of misconduct or fault to recover. The irrigation system in question was placed on the defendants’ property by agreement of the parties. It is a fixture, a part of the real property under Montana law. There is no agreement permitting the plaintiff to remove any of it, as required by Montana law. The Defendants have not committed any wrongful act by retaining it. District Court’s Findings of Fact, Conclusions of Law, ¶ 66 (emphasis supplied). The District Court erred because it failed to consider that, as Pruyn notes above, unjust enrichment does not always require a wrongful act. Unjust enrichment may also be found under Pruyn where it can be shown the defendant took advantage of the plaintiff. However, in my opinion, Held both committed a wrongful act, and took advantage of Welu. Held’s wrongful act arises from the fact that the statute governing the accession of fixtures to land allows the landowner to, at his option, cede the removability of the fixture. Held, as the incidental beneficiary of an irrigation system primarily meant to improve Welu’s hunting fortune, could have easily ceded the aboveground portions of the pivot irrigation system. The wrongful act requirement of Pruyn is thereby met: Held’s refusal to cede or pay Welu for those aboveground portions is a wrongful act. 32 Acknowledging that pursuant to § 70-18-101, MCA, Held was entitled to elect whether to return the aboveground portion of the irrigation system or to keep it, does not transform this argument for Welu’s relief into a call for specific restitution, as the Court asserts. Opinion, ¶ 41. If Held chose to keep the system, as he apparently has, Welu is entitled to restitution generally corresponding to the amount of its value under the theory of unjust enrichment. ¶58 Even if Held’s retention of the removable portions of the system is not what the Court would consider wrongful, Held is certainly taking advantage of Welu. Welu is rightly faulted for believing that his four sentence email would suffice to govern a complex million dollar transaction involving the property of another. The deficiency of his contract shows he either held an inordinate amount of trust in the goodwill of Held, or that he operated under an extreme ignorance of the law, both accession law and contract law. However, as a matter of equity and justice, Welu’s shortcomings in business prudence and legal matters should not serve to enrich Held to the tune of one million dollars when he was, as the trial court determined, merely an incidental beneficiary of Welu’s purchase. ¶59 I dissent. /S/ LAURIE McKINNON	December 28, 2016
4aed2fdb-82de-4341-9f39-875673ce6cc8	In re Marriage of Taylor	2016 MT 342	DA 16-0150	Montana	Montana Supreme Court	DA 16-0150 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 342 IN RE THE MARRIAGE OF: LISA TAYLOR, Petitioner and Appellee, and JOSEPH W. TAYLOR, Respondent and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DR 12-126B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellant: Suzanne C. Marshall, Marshall Law Firm, P.C., Bozeman, Montana For Appellee: Christopher J. Gillette, Christopher J. Gillette, PC, Bozeman, Montana Submitted on Briefs: November 30, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 16-0150 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Joseph Taylor objected to the Findings of Fact, Conclusions of Law, and Decree proposed by a standing master following trial of the marriage dissolution proceeding between Joseph and Lisa Taylor. The District Court refused to review the Standing Master’s report because Joseph’s objections lacked the required specificity. We agree and affirm the District Court’s order. PROCEDURAL AND FACTUAL BACKGROUND ¶2 Lisa and Joseph married in July 2010 and have two minor children together. The parties physically separated in March 2012. Lisa filed a petition for legal separation in November 2012. Joseph filed a counter-petition for dissolution of the marriage. ¶3 The Standing Master held a four-day trial in May 2015. After considering the parties’ testimony and evidence, the Standing Master issued a detailed 46-page report with findings of fact, conclusions of law, and a Decree of Dissolution. The Master awarded Lisa the family home, required Joseph to pay Lisa $48,621 in back temporary family support, required Joseph to pay over $2,000 per month in child support, and awarded Lisa her attorney’s fees. The Master also issued a final parenting plan that gave Lisa primary residential custody of the children, with a plan for supervised visitation and reunification between the children and Joseph. ¶4 Joseph filed a three-page motion for review of the Standing Master’s report. The District Court denied Joseph’s motion because it concluded that Joseph had not made specific objections to the Master’s report as required by statute. The court noted that 3 Joseph’s first objection merely restated a portion of one of the Master’s findings. Joseph’s next few objections, the court observed, simply listed the findings to which Joseph objected. The court emphasized that Joseph did “not specify what his objections are to those findings.” Thus, the court concluded, Joseph failed to comply with § 3-5-126, MCA. Joseph appeals. STANDARD OF REVIEW ¶5 We review de novo a trial court’s interpretation of a statute. Fellows v. Saylor, 2016 MT 45, ¶ 13, 382 Mont. 298, 367 P.3d 732. DISCUSSION ¶6 Whether the District Court correctly refused to review Joseph’s objections to the Standing Master’s report. ¶7 District courts may refer matters, including petitions for dissolution, to a standing master. Section 3-5-124(1), MCA; In re Marriage of McMichael, 2006 MT 237, ¶ 13, 333 Mont. 517, 143 P.3d 349 (hereafter McMichael). Standing masters may, in turn, conduct proceedings similar to a district court, make findings of fact and conclusions of law, and issue temporary orders. Section 3-5-124(2), MCA. Section 3-5-126, MCA, governs a district court’s consideration of a standing master’s recommended decision. It provides that, once a standing master issues its decision, “any party may serve written specific objections upon the other parties.” Section 3-5-126(2), MCA (emphasis added). The party’s “specific objections to the findings and conclusions or order must be made by motion.” Section 3-5-126(2), MCA. After a party has submitted specific objections, a district court is “required to set a hearing, consider the specific objections raised, and 4 accept, modify, or reject the Standing Master’s findings and conclusions or conduct further proceedings regarding the objections.” Beals v. Beals, 2013 MT 120, ¶ 12, 370 Mont. 88, 300 P.3d 1158; accord § 3-5-126(2), MCA. ¶8 Joseph contends that his objections were sufficiently specific to meet the requirements of § 3-5-126, MCA. He argues that he clearly identified the paragraphs to which he objected and that he specified where the Standing Master erred. He also asserts that the District Court, “at the very least,” should have provided him with a hearing on his objections. ¶9 In construing a statute, we look “to the plain meaning” of its language, and we read the “statute as a part of a whole statutory scheme.” Eldorado Coop Canal Co. v. Hoge, 2016 MT 145, ¶ 18, 383 Mont. 523, 373 P.3d 836 (citations and internal quotations omitted). Further, “[w]e interpret a statute to give effect to its purpose.” McMichael, ¶ 14. ¶10 The language of § 3-5-126(2), MCA, makes plain that “specific objections” are a prerequisite to both a hearing and a district court’s review of a standing master’s determinations. Once those objections have been articulated and the parties have had an opportunity to be heard, the district court reviews the master’s findings of fact for clear error and its conclusions of law to determine if they are correct. In re Marriage of Patton, 2015 MT 7, ¶¶ 24, 43, 378 Mont. 22, 340 P.3d 1242. ¶11 We interpreted § 3-5-126(2), MCA, in McMichael. We concluded that “a district court may modify a finding of fact or conclusion of law only to which a party has filed a 5 ‘specific objection.’” McMichael, ¶ 15 (quoting § 3-5-126(2), MCA). We emphasized that in drafting the statute, the “legislature twice referenced the requirement that parties file ‘specific objections’ to the findings or conclusions of a standing master.” McMichael, ¶ 15. To allow a district court “to modify findings or conclusions not specifically objected to,” we concluded, “would deny adequate notice and due process to the parties.” McMichael, ¶ 15. Thus, we held that a district court abuses its discretion if it modifies a standing master’s determination to which a party has not specifically objected. McMichael, ¶ 16. ¶12 Under § 3-5-126(2), MCA, “specific” modifies “objections,” not “findings” or “conclusions.” See Bryan A. Garner, The Redbook: A Manual on Legal Style, § 10.32, 170 (2d ed. 2002) (“An adjective typically precedes the word it details.”). The word “specific” means “designating a particular or defined thing; explicit.” Black’s Law Dictionary 1616 (Bryan A. Garner ed., 10th ed. 2014). We considered in Patton the Eighth Judicial District Court’s Charter Order Establishing a Standing Master. That order explains the definition of “specific,” and we conclude that its language appropriately describes the statutory requirement. The Charter Order provides that an objection must “specifically state with particularity the asserted factual or legal basis or reason for the assertion.” Patton, ¶ 44. The language of § 3-5-126(2), MCA, plainly means that a party must file objections that designate or define a particular error the standing master is alleged to have made before a district court may review the standing 6 master’s determinations. See McMichael, ¶ 15. To conclude otherwise “would deny adequate notice and due process to the parties.” McMichael, ¶ 15. ¶13 Here, Joseph filed a three-page motion objecting to the Standing Master’s 46-page report. His objections were broad and generalized. Joseph’s first objection simply restated one of the Standing Master’s findings of fact. Two of Joseph’s other objections merely listed by number the twenty-four findings of fact and twenty-two conclusions of law to which Joseph objected. In another objection, he objected “in full” to ten paragraphs in the Decree distributing the marital estate. In total, Joseph objected to fifty-six paragraphs from the Master’s report without providing any reason for his objections. He similarly objected to the “separate Parenting Plan in full.” His objections regarding distribution of the marital estate and calculation of child support, while seemingly more explicit, did not refer to the trial record or state a factual or legal basis for Joseph’s assertion of error. Nowhere in his objections did Joseph define or explain a particular error that the Standing Master committed. ¶14 Contrary to Joseph’s assertion on appeal, it is not the District Court’s role to “locate the paragraphs cited by” the objecting party in order to “ascertain the substance of the objection.” Cf. Petitioners 1-549 v. Missoula Irrigation Dist., 2005 MT 100, ¶ 15, 326 Mont. 527, 111 P.3d 664 (concluding that it is not an appellate court’s responsibility “to comb the record” to determine whether the trial court erred). It was Joseph’s responsibility to provide the court and Lisa with adequate notice of what he was 7 contesting by stating the factual or legal basis or reason for his assertions. See McMichael, ¶ 15; Patton, ¶ 44. ¶15 The District Court correctly determined that Joseph failed to specifically object to the Master’s report as required by § 3-5-126(2), MCA. Accordingly, we conclude that the District Court was not required to hold a hearing and correctly refused to review Joseph’s objections to the Standing Master’s report. Because we conclude that the District Court correctly denied Joseph’s motion to review, we do not consider Joseph’s arguments regarding the substance of the Standing Master’s report. Joseph should have made those arguments when he submitted his objections to the District Court. CONCLUSION ¶16 We affirm the District Court’s order denying Joseph’s motion for review. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ LAURIE McKINNON	December 27, 2016
ef6e6252-b4d0-4218-b1e6-8604bbf88cc0	LARSEN v OPIE	N/A	88-404	Montana	Montana Supreme Court	NO. 88-404 IN THE STJPREME COURT OF THE STATE OF MONTANA 1989 RICHARD LARSEN , Plaintiff and Appellant, ROBERT OPIE and PIPER, JAFFRAY & FOPWOOD, a Delaware Corporation, Defendants and Respondents. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judge presiding. COIJNSET, OF RECORD : For Appellant: J. Daniel Hoven & Oliver Goe, Browning, Kaleczyc, Berry & Hoven; Helena, Montana For Respondent: John G. Crist, Dorsey & Whitney; Billings, Montana Submitted on Briefs: March 9, 1989 t- cr necidedt April 19, 1989 C3 - . 7 4 , , c q . . , . , - t * (\-) u-) : ! . . I Filed: r 3 G;J f . -- - 3) ( > ? # Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Appellant Larsen sued Piper, Jaffray & Hopwood and their seller Robert Opie in the District Court of the Thirteenth Judicial District for misrepresentation and fraud in the inducement of signing option agreements and margin contracts. This suit was filed in response to respondents1 motion to compel arbitration for a dispute arising between the parties. On June 30, 1988, Judge Russell K. Fillner granted respondents1 motions and ordered appellant to submit to arbitration. We affirm. The issues on appeal are: 1. Whether the District Court's order compelling appellant to arbitrate is an appealable order? 2. Whether the issue of fraud in the inducement regarding the margin agreement and customer option agreement is to be determined by the court or by arbitration? Robert Opie, an investment executive with Piper, Jaffray & Hopwood, negotiated with appellant Larsen to sell Larsen "Margin and Customer Option Agreements.I1 Larsen alleges that he was a l1neophytel1 investor and had informed Piper, Jaffray & Hopwood that he would refuse to enter any agreement which would subject him to possible unlimited loss. Appellant also alleges that Opie was aware of this but nonetheless coerced appellant to enter the highly volatile area of margin agreements and option agreements. Larsen contends that, when signing the option agreement and margin agreement, he did not read either contract but instead relied on the oral assertions of respondent. Appellant refers to two specific clauses of which he was unaware: first, with each agreement was supplied "level four and level five agreementsf1 which stated that the investor understood the high risks involved in selling uncovered put options and that he could be exposed to unlimited loss; second, the agreements contained an arbitration clause which stated: We [Larsen] specifically agree and recognize that all controversies which may arise between Piper, Jaffray & Hopwood Incorporated, its agents, representatives or employees and me, concerning any transaction, account, or the construction, performance or breach of this or any other agreement between us, whether en- tered into prior, on, or subsequent to the date hereof, shall be determined by arbitra- tion to the fullest extent provided by law. Because of appellant's contention that he never read the agreements, he claims he was unaware of either of these clauses at the time of signing. Appellant subsequently lost money on the margin and option agreements when the stock market crashed drama- tically on October 19, 1987. His stock was sold to cover losses and respondents claim that he still owes $15,000, debited to his account. Piper, Jaffray & Hopwood sought to arbitrate the matter, but Larsen filed a suit in District Court alleging breach of duty of good faith and fair dealing, fraud, constructive fraud, and that the contracts were void. Appellant argues that if a contract is void from its inception, the arbitration clause contained therein cannot compel arbitration to decide the validity of the contract itself. Respondents claim that the issue of fraud is for the arbitrator's review, compelled by the Uniform Arbitration Act, 9 U.S.C. sections 1-14 (1947). The first issue is whether the decision of the District Court is an appealable order. The Montana Rules of Appellate Procedure, Title 25, Chapter 21, provide that: (a) Upon appeal from a judgment in a civil case, the court may review the verdict or decision, and any intermediate order or deci- sion excepted or objected to within the mean- ing of Rule 46 of the Montana Rules of Civil Procedure, which involved the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken. Rule 2 (a), M.R.App.P. Respondent argues that the appeal by Larsen is an inter- locutory appeal and is .subject to the Judicial Improvements and Access to Justice Act, P.L. 100-702, Section 1019, which states that an appeal may not be taken from an interlocutory order compelling arbitration. However, the appeal to this Court is from a final determination of the District Court. In finding that Larsenls claims were subject to arbitration, the District Court made a final determination regarding the claims by plaintiff at the state court level. Any arguments by either party were thereafter subject to arbitration as prescribed by the Arbitration Committee of the New York Stock Exchange or the National Association of Securities Dealers, Inc. The order was final and is appealable. The second issue is whether the issue of fraud in the induce- ment regarding the margin agreements and customer option agreement is to be decided by the District Court or by arbitration. The Uniform Arbitration Act, 9 U. S. C., applies to any contract involving commerce. section 2 of the Act states: . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. In Southland Corp. v. Keating (1984), 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 12, the Court stated: In enacting [section] 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration. Appellant alleges that the arbitration clauses here are invalid. He claims that because respondents did not specifically discuss the arbitration clauses with appellant, these clauses were not bargained for and were misrepresentations. Appellant also alleges that the contract as a whole is rendered void because he was fraudulently induced into entering into the margin agreement and customer option agreement. He contends that he told Piper, Jaffray & Hopwood that he did not want to invest in any agreements which could subject him to unlimited liability and he was reassured that these agreements would not result in unlimited liability. Because appellant claims he was induced fraudulently into signing the agreements through Piper, Jaffray & Hopwood's mis- representations, he contends the contracts are void from their inception and consequently the arbitration clauses are also void. Therefore, when the question of contract validity arises, it should be the task of the courts and not arbitration, to decide the issue. Section 4 of the Act provides one of the few times when a contract containing an arbitration clause can be addressed by a court : A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court. . . . The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement . . . If the makins of the arbitration asreement or the failure, neslect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. [Emphasis added.] The United States Supreme Court has discussed the issue of who is to determine issues involving arbitration and the uniform Arbitration Act in Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270. The Supreme Court looked tothe Uniform Arbitration Act for guidance, recalling that section 4 allows for judicial intervention in cases where the validity of the arbitration clause is at issue. Under section 4, . . . the federal court is instructed to order arbitration to proceed once it is satisfied that Itthe making of the agreement for arbitration or the failure to comply [with the arbitration agreement] is not in issue. Accordingly, if the claim is fraud in the inducement of the arbitration clause itself--an issue which goes to the tfmakingn of the agreement to arbitrate--the federal court may proceed to adjudicate it. But the statu- tory language does not permit the federal court to consider claims of fraud in the inducement of the contract generally. Prima Paint, 388 U.S. at 403-404, 87 S.Ct. at 1806, 18 L.Ed.2d at 1277. The issue is the same here. There is a question of whether the agreements between Larsen and Piper, Jaffray & Hopwood are void for fraud in the inducement. Prima Paint has specifically held that issues which address fraud in the inducement are issues to be decided in arbitration. Appellant here does dispute the validity of the arbitration clause, but only in connection with the contract as a whole. We have addressed the application of the Uniform Arbitration Act in state courts in Passage v. Prudential-Bache Securities, Inc. (Mont. 1986), 727 P.2d 1298, 43 St.Rep. 1532, cert. denied, 480 U.S. 905 (1987). We were faced with the same issue in Passaqe of whether the clause requiring arbitration where a dispute of the contract arises is valid if the investor did not specifically consent to arbitration. We held that the arbitration clause was valid and the investors were subject to its contents. The same is true in the instant case. Larsen cannot claim that he was unaware of the financial risks involved in investing in uncovered put agreements. The I1level four and level five agreements" which explain the risks involved were set out separately fromthe margin and option agreements themselves and required a separate signing by the investor. We hold that the District Court properly determined that the issue of fraud in the inducement to the execution of the contract generally is to be decided by arbitration. Appellant cannot look for the court to determine the validity of the contract generally for the issue of fraud in the inducement, but only if the validity of the arbitration clause is at issue. Affirmed. f/c7&L Chief Justice We concur:	April 19, 1989
51316499-aee2-41a0-893f-100c0abec13e	BESTWINA v VILLAGE BANK	N/A	88-112	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA BETTY RESTIhTINA, Individually, and as Guardian ad Litem for LAWRENCE RESTWINA, an incapacitated person, Plaintiffs and Appellants, -vs- THE VILLAGE BANK and RICHARD OTJSON, Defendants and Respondents. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascad.e, The Honorable Thomas McKittrick, Judge presid-inq. COUNSEL OF RECORD: For Appellant: Cotter & Cotter; Patricia O'Rrien Cotter arqued, Great Falls, Montana For Respondent: Emmons & Coder; Robert Emmons argued, Great Falls, Montana F- c3 :Y J. David Slovak argued; Ugrin, Alexander, Zadick & N - - Slovak, Great Falls, Montana c - l 4 r Filed: , ; ? , . i J l.3 -- - Submitted: October 13, 1988 Decided: January 10, 1989 . . ED SMITH Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. Plaintiff appeals from the dismissal of her complaint for wrongful discharge. The District Court for the Eighth Judicial District, Cascade County, ruled that the claim was barred by the statute of limitations. We reverse j . n part, affirm in part, and remand to the District Court.. The issues are: 1. Was summary judgment improper because of a factual question as to whether Lawrence Bestwina was seriouslv men- tally ill so as to toll the statute of limitations? 2. Does the question of whether the defendants fraud-u- lently concealed the facts surrounding Mr. Restwinals dis- charge preclude summary judgment? Defendant Village Rank has raised as a third issue whether the District Court's summary judgment is an appeal- able order. Apparently Village Rank is concerned. because the summary judgment is entitled as an "order." We conclude that the title of the document does not render the appeal invalid. It is clear from the body of the summary judgment order that it disposes of plaintiff Is cl-aims. We will consider the appeal. Lawrence Bestwina was employed as vice president of the Village Rank in Great Falls, Montana. In March of 1977, he began treatment with a psychiatrist for depression. In November 1977, he was discharged from his emplovment. In January 1978, Mr. Bestwina was hospitalized for depression. He has since been diagnosed as suffering from chronic bipolar disorder with manic and depressive episodes. His condition has deteriorated over the years and has not been controlled. with medication or electric shock treatments. The original complaint alleging wrongful discharge was filed on October 4, 1985, with Mr. Bestwinals wife acting as his guardian ad litem. The complaint included a consortium claim on Mrs. Bestwina's behalf. The District Court granted dismissal of the consortium claim, ruling that the statute of limitations had passed. Plaintiff then filed an amended complaint, omitting the consortium claim. After some discov- ery, defendants Village Bank and Richard Olson, who have retained separate counsel, both moved for summary judgment on grounds that the complaint was untimely filed and that the statute of limitations had run. Plaintiff argued that the complaint was timely filed because the applicable three-year statute of limitations was tolled as a result of Mr. Bestwina's mental illness. Section 27-2-401, MCA, is the statute which allows tolling: (1) If a person entitled to bring an action . . . is, at the time the cause of action accrues, . . . seriously mentally ill . . . the time of such disability is not a part of the time limited for commencing the action. However, the time so limit- ed cannot he extended more than 5 years by any such disability except minority. Plaintiff also claimed that the defendants fraudulently concealed the real reason for the termination of Mr. Bestwina's employment until 1983, and that. the statute of limitations did not begin to run until then. The District Court concluded that the fraudulent con- cealment claim was filed too late because the statute of limitations for that claim began to run on the date Mr. Bestwina's employment was terminated. It also concluded that plaintiff had failed to prove continuous and complete dis- ability so as to toll the statute of limitations. I Was summary judgment improper because of a factual question as to whether Lawrence Restwina was seriously men- tally ill so as to toll the statute of limitations? Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is enti- tled to a judgment as a matter of law. Rule 56 (c), M.R.Civ.P. The District Court concluded that the burden of proving facts sufficient to toll the statute of limitations fell on plaintiff. At paragraph 6 of its conclusions of law, the court stated: Plaintiff has failed to meet the burden of @stab-- lishing a complete and continuous disability as required by 5 27-2-401, MCA, to toll the statute oF 1.imitations. . . . The disability must be suffi- cient to preclude the Plaintiff from comprehending his 1-egal rights, and such a disability has not been established. Rather, the record reflects not only a comprehension of legal rights related to the alleged termination, but successful pursuit of the same through various leqal remedies then a~railable. The defendants contend, as they did in the District Court, that Mr. Bestwina's pursuit of claims for social securit~ benefits and workers' compensation demonstrate an ahsence of serious mental illness. While we recognize that Mr. Restwina's pursuit of these claims is certainly proper for consideration on the issue of mental illness, we conclude that the pursuit of the claims does not conclusively establish an ahsence of serious mental illness. Our conclusion agrees with those of courts in several other states. Retention of counsel is evidence, although not conclusive, of a person's legal capacity for purposes of tolling the statute of limitations. Harrington v. County of Ramsey (Minn. 1979), 279 N.W.2d 791. In a case involving facts similar to those of the present case, the Supreme Court of Alaska stated that, The fact that [the plaintiff] could actively work for sometime after the accident, travel, obtain workmen's compensation benefits and retain an attorney might support an inference that [the plaintiff] was not "insane," but this is an issue to be decided at trial, not on a motion for summary judgment. Adkins v. Nabors Alaska Drilling, Inc. (Ak. 1980), 609 P.2d 15, 24. See also Hill v. Clark Equipment Company (Mich.Ct.App. 1972), 202 N.W.2d 530. In the present case, Donald Engstrom, M.D., submitted his affidavit stating that Mr. Bestwina has been under his psychiatric treatment since March of 1977, about 8 months prior to his discharge. He stated that in 1978 and during the next four years, Mr. Bestwina was hospitalized at least six times for severe depression. He stated that drug therapy and electroconvulsive treatments had not yielded improvement in Mr. Restwina's condition and that Mr. Restwina's condition had deteriorated from 1977 to the date of the affidavit. He also stated that, "In my opinion, since 19?7 when he com- menced treatment, Restwina has never returned to his 'pre-1977' self." The lower court's four pages of findings of fact, along with the foregoing summary of the positions of the parties, demonstrate to us the presence of issues of material fact as to the serious mental illness of Mr. Restwina. This is not a question which is susceptible to resolution based on written affidavits, without the benefit of cross-examination in court. We therefore conclude that there is a material issue of Fact precluding summary judqment. For the assistance of the District Court on remand, it is necessary that we review the pro~risions of S 27-2-40!-, PICA, as applied to this case. In substance, that statute provides that if a person is seriouslv mentally il-1 at the time the cause of action accrues, the time of such d i s a b i ' i t u is not counted. We therefore conclude that the District Court must determine whether or not Mr. Bestwina was serious- ly mentally ill at the time the cause of action accrued in November 1 9 7 7 . If the court determines that he was seriously mentally ill on that date, then the court must consider the following portion of the statute, which in substance states that the time of Mr. Bestwina's disability shall not he considered as a part of the time limit under the statute but that the time cannot be extended more than 5 years. We conclude that the District Court then must determine the period or periods during which the disability continued, and the total of such time of disability shall not be counted against Mr. Restwina. While the statute does not specifical- ly contemplate a separate proceeding prior to trial on the merits, we conclude that such a separate proceeding is appro- priate in this case and we therefore direct the District Court to proceed to make a determination as above set forth prior to the trial of the cause of action on the merits. We reverse and remand to the District Court for the determination of whether Mr. Bestwina has met the require- ments for the tolling of the statute of limitations because of his claim of serious mental illness, and for such further proceedings as are appropriate. I1 Does the question of whether the defendants fraudulently concealed the facts surrounding Mr. Bestwina's discharge preclude summary judgment? Plaintiff argues that it was not until Richard Olson was deposed in October 1983 that Mr. Bestwina's counsel was aware that Mr. Restwina had heen fired in 1 9 7 7 and that the Firinq was because OF an unrelated personal matter between him and Mr. Olson. Mr. Restwi-na's counsel submitted his affida~rit that until October 1983, he believed that Mr. Bestwina had been placed on a medical leave of absence in 1977. Plaintiff asserts that under the discovery doctrine, the statute of Limitations should be tolled until October 1983. In ruling on this issue, the District Court did not elaborate beyond stating that it deemed controlling its ruling in the claim Mrs. Bestwina brought in her own behalf. Plaintiff points out that dismissal of an action as to a person in her individual capacity is not res judicata as to a later action in which that person appears in a representatt~e capacitv. S-W Co. v. John Wight, Inc. (1978), 179 Mont. 392, 405-06, 587 P.2d 348, 355. Law of the case does not applv hecause a sl-ightly different issue is presented here. Previ- ously the court ruled that the discoverv doctrine did not apply as to Mrs. Bestwina. Here, the question is whether the discovery doctrine applies as to Mr. Bestwina. In any event, no authority has been cited which states that the discovery doctrine, which has been recognized in other kinds of cases, should be extended to apply in this case. Nor has plaintiff made a persuasive argument that the doctrine should be so extended. We decline to expand the discovery doctrine to cover this situation. We therefore affirm the District Court's ruling that the plaintiff's fraudulent concealment claim does not toll the statute of limitations. Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion. We Concur: Chief Justice Mr. Justice John Conway Harrison, dissenting. I dissent. Facts, like figures, can be either distorted or described in a certain way to achieve a specific outcome. The District Court spent considerable time in this case observing all parties involved and I feel the District Court arrived at the correct decision in granting summary judgment to the defendants. Viewing the facts as the District Court did and as I see them from the record, appellant's husband, Lawrence Restwina, former vice president of the Village Bank in Great Falls, did not file his action for wrongful discharge until eight years after he was separated from his emplovment on November 6, 1977. During that eight year period, he personally pursued a number of legal remedies directly connected with and based upon his alleged unlawful discharge. Three years after his discharge, on May 30, 1980, he personally retained counsel, C.L. Overfelt, to pursue a Workers' Compensation claim against the defendant Village Rank. He personally executed a retainer fee and agreement on that date and signed a claim for compensation on June 10, 1980. That Workers' Compensatj-on claim was brought by Lawrence Restwina, in his individual capacity, without the necessity of appointing a guardian ad litem or a conservator. It is emphasized that this Workers' Compensation litigation focused on the same discharge from employment as this action. That claim based upon his discharge, was initially denied, and a petition for hearing was filed before the Workers' Compensation Court in Auqust, 1983. That petition for a hearing and the Litigation involved before the Workers' Compensation Court, was brought solely in the name of Lawrence Restwina in his individual capacity, again without the need of a quardian or a conservator. Through a pretrial deposition he testified at that court proceeding, and was listed as a trial witness. At that time no contention of incompetency was made during the proceedings. While that Workers' Compensation Court action was subsequentl~v resolved through a full and final settlement prior to trial, it was Lawrence Restwina who signed the petition for a full and final compromise settlement in his individual capacity, which settlement was approved by the court. Of the eight year period which Lawrence Restwina now claims should be tolled, he obviouslv was competent for four of those vears. Additionally, during the time in question, specifically on July 20, 1979, Lawrence Bestwina personally applied for social security disability benefits by executing a document with the Social Security Administration. While that first application for benefits was denied, he requested a reconsideration which also was denied. Following that he requested a hearing with the Social Security Administration. That hearing was held October 29, 1979. During the hearing he testified under oath and as a result, disability benefits were granted in March, 1980. The entire record reflects, and it is as obvious to me as it was to the District Court Judge who heard the matter, that Lawrence Bestwina's actions in obtaining various benefits, indicates he fully understood his legal rights and how to exercise them. In my opinion there was not one instance during the time he used the legal system that he showed the necessity of having a guardian or conservator appointed for him. I feel the record shows uncontroverted facts which illustrate Bestwina failed to prove a continuous and uninterrupted mental disability. L would affirm the District Court's holding in finding that Restwina failed as a matter of law to establish any entitlement to any exception to the three year statute of limitations. Mr. Justice L. C. Gulbrandson joins in the foregoi-nq dissent of Mr. Justice Harrison. t Mr. Chief Justice J. A. Turnage: I concur in the foregoing dissent of Mr. Justice Harrison. hief Justice / /	January 10, 1989
fbb4a2b5-c757-42da-b510-3ad2c53b2b54	Conservatorship of J.J.W.	2016 MT 339N	DA 16-0284	Montana	Montana Supreme Court	DA 16-0284 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 339N IN THE MATTER OF THE CONSERVATORSHIP OF J.J.W., An Incapacitated Person. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DG 15-0027 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: John R. Christensen, Timothy A. Filz, Joseph L. Breitenbach, Christensen Fulton & Filz, PLLC, Billings, Montana For Appellee: John M. Van Atta, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana (Attorney for Carol Daniel) Jon Doak, Doak & Associates, P.C., Billings, Montana (Attorney for Roger Daniel) Jack E. Sands, Sands Law Office, Billings, Montana (Attorney for J.J.W.) Submitted on Briefs: November 16, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 16-0284 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Kim Wallinder Moffet appeals an order of the Thirteenth Judicial District Court, Yellowstone County, dismissing her petition for conservatorship of her mother, J.J.W. We address whether the District Court erred by denying Moffet’s petition. We affirm. ¶3 In March 2015, Moffet filed a petition for conservatorship in the District Court, seeking to appoint a third-party conservator for J.J.W. J.J.W. and her other daughter, Carol Daniel, opposed the petition. In September 2015, Moffet moved for partial summary judgment that J.J.W. met the first prong of the test for appointing a conservator, set forth in § 72-5-409(2), MCA. Section 72-5-409(2), MCA, provides: Appointment of a conservator . . . may be made in relation to the estate and affairs of a person if the court determines that: (a) The person is unable to manage the person’s property and affairs effectively for reasons such as mental illness, mental deficiency, physical illness or disability, advanced age . . . ; and (b) the person has property that will be wasted or dissipated unless proper management is provided . . . . In December 2015, the District Court granted Moffet’s motion, finding that J.J.W. “is afflicted with a mental condition due to her advanced age that requires she be assisted with decisions that are of significant consequence.” The District Court then held a hearing on the second prong of § 72-5-409(2), MCA: whether J.J.W. “has property that 3 will be wasted or dissipated unless proper management is provided.” At the conclusion of Moffet’s case-in-chief, Daniel moved for summary judgment on the basis that Moffet did not produce sufficient evidence to show J.J.W.’s assets will be wasted or dissipated. J.J.W. joined Daniel’s motion, which the District Court reframed as a motion for a directed verdict. The District Court granted Daniel’s motion and dismissed Moffet’s petition. Moffet appeals. ¶4 On appeal, the parties dispute the standard of review because they dispute the effect of the District Court’s ruling. Moffet refers to the District Court’s decision as a judgment as a matter of law, whereas Daniel refers to it as a judgment on partial findings. M. R. Civ. P. 50(a)(1) provides that a district court may grant judgment as a matter of law against a party if the party “has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” (Emphasis added.) This was not a jury trial. Therefore, M. R. Civ. P. 50(a)(1) does not apply. M. R. Civ. P. 52(c) provides: If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. . . . A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). Because this was a nonjury trial, and Moffet presented all of her evidence before the District Court ruled on Daniel’s motion, M. R. Civ. P. 52(c) applies. We therefore treat the District Court’s decision as a judgment on partial findings. 4 ¶5 A district court’s findings of fact, “whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” M. R. Civ. P. 52(a)(6). A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the district court made a mistake. In re Guardianship & Conservatorship of Gali, 2000 MT 83, ¶ 10, 299 Mont. 178, 998 P.2d 541. We review a district court’s conclusions of law for correctness. Gali, ¶ 10. ¶6 Although the District Court did not issue written findings of fact, “[w]e have . . . long adhered ‘to the doctrine of implied findings[,] which states that where a court’s findings are general in terms, any findings not specifically made, but necessary to the judgment, are deemed to have been implied, if supported by the evidence.’” Brunette v. State, 2016 MT 128, ¶ 36, 383 Mont. 458, 372 P.3d 476 (quoting Interstate Brands Corp. v. Cannon, 218 Mont. 380, 384, 708 P.2d 573, 576 (1985)). Under this doctrine, we often consult hearing transcripts. See Brunnette, ¶ 36. Throughout the hearing, the District Court repeatedly doubted Moffet’s assertions. For example, when Moffet argued that a lack of transparency regarding J.J.W.’s finances was in and of itself mismanagement of her assets, the District Court responded: “that may be a leap.” When Moffet argued that J.J.W.’s accountant “is being paid 450 bucks a month to do nothing,” the District Court stated: “Well, I think that’s—might be a little stretch. He’s obviously doing something . . . .” The District Court warned Moffet that she would need to present more than mere suspicions, stating: “just because you say it doesn’t mean it’s so.” 5 Ultimately, the District Court found that Moffet relied almost entirely on her suspicions, summarizing her argument as: “where there’s smoke, there’s fire.” Although the District Court’s stated findings at the conclusion of the hearing were general in terms, the District Court implicitly weighed the evidence Moffet presented and found that she did not back her assertions up with concrete evidence. This was well within the District Court’s province as the trier of fact. See Swain v. Battershell, 1999 MT 101, ¶ 39, 294 Mont. 282, 983 P.2d 873 (“The credibility of witnesses and the weight to be afforded their testimony is a matter left to the sound discretion of the District Court.”). ¶7 Although Moffet alleges that she presented “indisputable evidence” showing that § 72-5-409(2)(b), MCA, was met, the evidence she points to does not clearly contradict the District Court’s findings. Moffet contends the following facts are sufficient to meet § 72-5-409(2)(b), MCA: that Daniel assisted J.J.W. in selling her insurance business to Daniel’s son and “did everything in her power” to prevent Moffet from learning the details of that transaction; that J.J.W.’s accountant, despite being paid $450 per month, was behind in filing J.J.W.’s taxes and made mistakes when he did file them; and that “[u]pon receiving demands for transparency from counsel for [Moffet], J.J.W.’s attorney communicated those demands directly” to Daniel and her son without discussing them with J.J.W. Much of Moffet’s argument relies on an alleged absence of transparency; at the hearing, the District Court rejected Moffet’s argument that a lack of transparency shows mismanagement. Moffet has not shown that the District Court clearly erred in making this finding. Nor has she shown that any of her other alleged facts will result in waste or dissipation of J.J.W.’s assets. 6 ¶8 In In re Conservatorship of Kovatch, 271 Mont. 323, 896 P.2d 444 (1995), we affirmed a district court’s finding that one sibling produced insufficient evidence to show that another sibling’s management of an incapacitated person’s estate was resulting in waste or dissipation of assets. As in Kovatch, there is no dispute that J.J.W. lacks the capacity to manage her property and affairs. Also as in Kovatch, Moffet has not shown that the District Court clearly erred in finding she did not meet her burden of proof under § 72-5-409(2)(b), MCA. Therefore, the District Court did not err in issuing a judgment on partial facts pursuant to M. R. Civ. P. 52(c), and did not err in dismissing Moffet’s petition for conservatorship of J.J.W. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court’s interpretation and application of the law were correct, and its findings of fact are not clearly erroneous. We affirm. /S/ JAMES JEREMIAH SHEA We Concur: /S/ JIM RICE /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER	December 27, 2016
36f7306e-2319-41eb-8e35-342fd426016e	State v. Lafield	2016 MT 338N	DA 15-0212	Montana	Montana Supreme Court	DA 15-0212 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 338N STATE OF MONTANA, Plaintiff and Appellee, v. JEFFORY A. LAFIELD, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 13-55 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellant: Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana William E. Fulbright, Ravalli County Attorney, Hamilton, Montana Submitted on Briefs: November 30, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 15-0212 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In October 2013, Jeffory LaField entered into a plea agreement in which he pled no contest to felony driving under the influence of alcohol (DUI), fourth or subsequent offense, and felony assault on a peace officer. The Montana Twenty-First Judicial District Court, Ravalli County, accepted the plea agreement and entered a Judgment and Commitment in December 2013. An Amended Judgment and Commitment was entered on January 24, 2014. ¶3 For LaField’s felony DUI conviction, the District Court committed LaField to the Montana Department of Corrections (DOC) for a period of thirteen months, for placement into an appropriate correctional facility, followed by a five-year suspended commitment to the DOC. The judgment provided that if LaField completed the WATCh program or other residential alcohol treatment program operated or approved by the DOC, the court would allow him to serve the remainder of his thirteen-month commitment on probation. For LaField’s felony assault conviction, the court committed him to the custody of the DOC for a period of five years, all suspended on conditions, and set to run concurrently to the felony DUI sentence. 3 ¶4 In July 2014, the State filed a petition to revoke LaField’s suspended sentence on the grounds that LaField violated conditions of his sentence, including failing to comply with the rules and regulations of the WATCh program in January 2014, and disobeying the law by assaulting a fellow inmate in June 2014. At the October 6, 2014 scheduling hearing, the court released LaField on his own recognizance subject to specific conditions of release. The District Court set a revocation hearing for November 24, 2014. ¶5 On November 19, 2014, the State filed an amended petition to revoke LaField’s suspended sentence. In the amended petition, the State alleged that, in addition to the violated conditions set forth in the original Petition, on November 15, 2014, LaField violated numerous other conditions including driving a vehicle while under the influence of alcohol and assaulting another peace officer. ¶6 We note that from April 2013, when the State filed its Information, through the revocation proceeding in March 2015, LaField was represented by six attorneys, most of whom withdrew. At the revocation hearing, LaField represented himself, with appointed stand-by counsel. Just before the hearing commenced, LaField became angry and spit on stand-by counsel. The District Court allowed the hearing to commence with warnings to LaField. However, shortly into LaField’s cross-examination of the State’s first witness, LaField became combative and threatened and cursed the judge. The judge had him removed from the courtroom and put into a room with “sight and sound” technology to allow him to follow the proceeding. LaField refused to watch or listen. ¶7 The District Court conducted the hearing, instructing stand-by counsel to cross-examine the State’s multiple witnesses. At the close of the hearing, the District 4 Court revoked both suspended sentences and committed LaField to the DOC for five years with a strong recommendation for prison placement. The District Court issued its written Order of Commitment on March 5, 2015. It is from this Order that LaField appeals. ¶8 We review a district court’s revocation of a suspended sentence for an abuse of discretion. State v. Baird, 2006 MT 266, ¶ 15, 334 Mont. 185, 145 P.3d 995. ¶9 LaField, through counsel, argues on appeal that he is entitled to a written statement of the evidence upon which the court relied in revoking his suspended sentences. He claims that because he was absent from the courtroom during the proceeding, the District Court’s obligation to provide such a written statement was critical. He proffers that the court’s failure to do so entitled him to reversal of his judgment and a remand for further proceedings. ¶10 The State counters that the court’s lack of written findings does not entitle LaField to a new revocation hearing. Rather, the State is required to prove, by a preponderance of the evidence, that LaField violated the terms and conditions of his suspended sentence and the record of the case can provide sufficient support for the court’s revocation. Section 46-18-203(6), MCA; Baird, ¶¶ 17, 30. ¶11 In Baird, this Court reviewed the district court’s revocation of a deferred sentence imposed on Baird following a felony stalking conviction. Baird was present at the revocation hearing and testified on his own behalf. He did not deny that he violated the order of protection on numerous occasions. Baird, ¶¶ 10, 12. The district court addressed Baird directly when it pronounced judgment, asking if Baird understood why 5 the court was revoking his deferred sentence. Baird answered in the affirmative. Baird, ¶ 13. ¶12 On appeal, Baird argued that he was denied due process because the court had not set forth, in a written statement, the evidence relied upon for the revocation of his deferred sentence as required by Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973). “[D]ue process requires that upon revocation of a probation the defendant receive a written statement of the evidence relied upon by the arbiter and the reason for revoking probation.” Baird, ¶ 24. While acknowledging the rule of Gagnon, and a subsequent similar ruling in Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254 (1985), we noted that the U.S. Supreme Court, in deference to state court systems, recognized and sought to preserve flexibility in revocation proceedings, “which does not require the full panoply of procedural safeguards associated with a criminal trial.” Baird, ¶ 28 (citing Black, 471 U.S. at 613, 105 S. Ct. at 2258). Consequently, we concluded “that the due process requirements of a written statement by the district court may be satisfied by a record that provides adequate factfinding and an adequate basis for appellate review.” Baird, ¶ 30. We continued: Read as a whole, the oral and written records from the District Court provide an adequate basis for this Court’s review, as required by Black and Richardson.[1] This Court has no difficulty identifying and evaluating the information used by the District Court to revoke Baird’s deferred sentence. The record is adequate to determine that the District Court’s revocation of Baird’s probation was based on “permissible grounds supported by the evidence.” We conclude that the District Court’s written order and hearing transcript meet the minimal due process requirements required by Gagnon and its progeny. 1 State v. Richardson, 2000 MT 72, 299 Mont. 102, 997 P.2d 786. 6 Baird, ¶ 32. ¶13 Applying Baird to the case before us, the written transcript reveals that the District Court heard credible testimony from the security coordinator of the WATCh facility, an Anaconda detention officer, a probation and parole district supervisor, and a Missoula County sheriff’s deputy. LaField’s stand-by counsel cross-examined these witnesses on LaField’s behalf. These witnesses provided evidence and testimony that LaField: (1) violated the rules and regulations of the WATCh facility, (2) assaulted a fellow inmate, (3) drove a vehicle, consumed alcohol, and drove while under the influence of alcohol, (4) assaulted a Missoula County sheriff’s deputy while resisting arrest, (5) gave a false name to the Missoula County sheriff’s deputy, and (6) was driving without a valid license or proof of insurance. Each of these claims represented a violation of a specific term or condition of LaField’s suspended sentences. While the District Court found that the State had not established that LaField drove a vehicle that was not equipped with an ignition interlock system as required by his suspended sentence conditions and as alleged by the State, the court expressly found that the State had proven by a preponderance of the evidence that LaField had violated the remaining probation conditions as alleged. It is apparent from the hearing transcript the evidence the District Court relied upon to issue its order of revocation. While factually distinguishable in that Baird was present in the courtroom, Baird nonetheless supports our conclusion that the District Court did not abuse its discretion in revoking LaField’s suspended sentences. 7 ¶14 Lastly, LaField’s absence from the proceeding and his failure to watch or listen to the hearing after his removal for disruptive and abusive behavior does not place a higher burden on the District Court in administering the proceeding. It is undisputed that the District Court provided LaField with the opportunity to be present and be heard and LaField did not avail himself of the opportunity. ¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the District Court did not abuse its discretion in revoking LaField’s suspended sentences. ¶16 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ LAURIE McKINNON	December 27, 2016
9f8b2d56-63bf-4f27-96ef-e98b3761961c	IN RE THE RULES OF PROFESSIONAL CON	N/A	AF 09-0688	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA AF 09-0688 _________________ IN RE THE RULES OF PROFESSIONAL CONDUCT O R D E R _________________ After soliciting and considering comments on the proposal, the Court hereby adopts a proposed revision to Rule 1.18(e)(1) of the Montana Rules of Professional Conduct. The Montana Justice Foundation Board and the State Bar of Montana Board of Trustees jointly petitioned for the revision, regarding noncompliance with annual trust account and IOLTA reporting requirements. Similar to the rules regarding failure to pay state bar dues and other assessments, the revision gives the State Bar of Montana authority to suspend Montana attorneys from the practice of law if they fail to file annual IOLTA certification. A non-complying lawyer would receive written notice allowing the lawyer thirty days from the date of the notice to comply before the lawyer’s license would be suspended. The revision is reflected in the text of the Montana Rules of Professional Conduct appended to this Order. The revision is effective immediately. This Order shall be published on the Montana Supreme Court website and notice of this Order shall be posted on the website of the State Bar of Montana and in the next available issue of the Montana Lawyer. The Clerk is directed to provide copies of this Order to the Montana State Law Library; the State Bar of Montana; Todd Everts, Connie Dixon, and Derek Gallagher at Montana Legislative Services Division; Helene Haapala and Colena Webb at Thomson Reuters; and Robert Roy and Patti Glueckert at LexisNexis. Dated this 16th day of December, 2016. /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON 12/16/2016 Case Number: AF 09-0688 2 /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE 1 MONTANA RULES OF PROFESSIONAL CONDUCT PREAMBLE: A LAWYER’S RESPONSIBILITIES (1) A lawyer shall always pursue the truth. (2) A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. (3) As a representative of clients, a lawyer performs various functions. In performance of any functions a lawyer shall behave consistently with the requirements of honest dealings with others. As advisor, a lawyer endeavors to provide a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements under these Rules of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them. (4) In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. (5) In all professional functions a lawyer should be competent, prompt and diligent. Competence implies an obligation to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. (6) A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. (7) As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to 2 maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. (8) Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service. (9) A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are harmonious. A lawyer can be a dedicated advocate on behalf of a client, even an unpopular one, but in doing so must comply with these Rules of Professional Conduct. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. (10) In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (11) The legal profession is self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the courts. (12) Self-regulation helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. (13) The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other 3 lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (14) Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. All lawyers understand that, as officers of the court, they have a duty to be truthful, which engenders trust in both the profession and the rule of law. The Rules of Professional Conduct, when properly applied, serve to define that relationship. Trust in the integrity of the system and those who operate it is a basic necessity of the rule of law; accordingly truthfulness must be the hallmark of the legal profession, and the stock-in-trade of all lawyers. (15) The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role. Many of the Comments use the term “should.” Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. (16) The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. (17) Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. (18) Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.20. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. (19) Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For 4 example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. (20) Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. (21) Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule provides just basis for self-assessment by a lawyer of his/her conduct or a basis for sanctioning a lawyer under the disciplinary process does not imply that an opposing party or lawyer has standing to seek enforcement of the Rules in a collateral proceeding or transaction outside of the disciplinary process. RULE 1.0: TERMINOLOGY (a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances. (b) “Bona fide” denotes in or with good faith; honestly, openly, and sincerely; without deceit or fraud. (c) “Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question. (d) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (g) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. 5 (e) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. (f) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. (g) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (h) “Knowingly,” “known” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. (i) “Partner” denotes a member of a law partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (j) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (k) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (l) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. (m) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. (n) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance. (o) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter. (p) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, Photostatting, photography, audio or video recording, and electronic communications. A “signed” writing includes the electronic equivalent of a signature, such as an electronic sound, symbol or process, which is attached to a writing and executed or adopted by a person with the intent to sign the writing. 6 CLIENT-LAWYER RELATIONSHIP RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. (1) The client’s informed consent must be confirmed in writing unless: (i) the representation of the client consists solely of telephone consultation; (ii) the representation is provided by a lawyer employed by a nonprofit legal services program or participating in a nonprofit court-annexed legal services program and the lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms; or (iii) the court appoints the attorney for a limited purpose that is set forth in the appointment order. (2) If the client gives informed consent in writing signed by the client, there shall be a presumption that: (i) the representation is limited to the attorney and the services described in the writing; and (ii) the attorney does not represent the client generally or in matters other than those identified in the writing. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. 7 RULE 1.3: DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. RULE 1.4: COMMUNICATION (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(g), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. RULE 1.5: FEES (a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing. This paragraph does not apply in any matter in which it is reasonably foreseeable that total cost to a client, including attorney fees, will be $500 or less. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall 8 state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of maintenance or support or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. RULE 1.6: CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (4) to comply with other law or a court order. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 9 RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) in matters in which a lawyer wishes to assert a retaining lien against client property, papers or materials in the lawyer’s possession to secure payment for the lawyer’s services and costs advanced relating to such property, papers or materials, a written agreement for such a lien shall expressly set forth the limitations contained in paragraph (i)(3); (3) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (4) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to 10 the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; (3) a lawyer may, for the sole purpose of providing basic living expenses, guarantee a loan from a regulated financial institution whose usual business involves making loans if such loan is reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided that neither the lawyer nor anyone on his/her behalf offers, promises or advertises such financial assistance before being retained by the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives written informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer: 11 (1) may acquire and assert a charging lien only against causes of action or counterclaims in litigation pursuant to and only to the extent specified in MCA 37- 61-420(2); such a charging lien does not extend to other client property, papers or materials in the lawyer’s possession, to any matter not in litigation, or to any matter otherwise not covered by the specific language of MCA 37-61-420(2); (2) may contract with a client for a reasonable contingent fee in a civil case; and (3) may not acquire or assert a retaining lien to secure payment due for the lawyer’s services against any client property, papers or materials other than those related to the matter for which payment has not been made and, upon termination of representation, shall deliver to the client any client property, papers or materials reasonably necessary to protect the client’s interest in the matter to which the property, papers or materials relate as provided in Rule 1.16(d). (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. RULE 1.9: DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. 12 (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless: (1) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule. (d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7. (e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law 13 from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). (e) As used in this Rule, the term “matter” includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. RULE 1.12: FORMER JUDGE, ARBITRATOR, SETTLEMENT MASTER, MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, settlement master, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, settlement master, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: 14 (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule. (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party. RULE 1.13: ORGANIZATION AS CLIENT (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking for reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law. (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16. (d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. (e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. 15 RULE 1.14: CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. RULE 1.15: SAFEKEEPING PROPERTY (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in accordance with Rule 1.18 and this Rule. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. RULE 1.16: DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. 16 (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. A lawyer is entitled to retain and is not obliged to deliver to a client or former client papers or materials personal to the lawyer or created or intended for internal use by the lawyer except as required by the limitations on the retaining lien in Rule 1.8(i). Except for those client papers which a lawyer may properly retain under the preceding sentence, a lawyer shall deliver either the originals or copies of papers or materials requested or required by a client or former client and bear the copying costs involved. RULE 1.17: GOVERNMENT EMPLOYMENT An attorney employed full time by the State of Montana or a political subdivision shall not accept other employment during the course of which it would be possible to use or otherwise rely on information obtained by reason of government employment that is injurious, confidential or privileged and not otherwise discoverable. RULE 1.18: INTEREST ON LAWYER TRUST ACCOUNTS (IOLTA) PROGRAM (a) Purpose. The purpose of the Interest on Lawyer Trust Accounts (IOLTA) program is to provide funds for the Montana Justice Foundation to pay the reasonable costs of administering the program and to make grants to entities with missions within the following general categories: 17 (1) Providing legal services, through both paid staff program(s) and pro bono program(s), to Montana’s low income citizens who would otherwise be unable to obtain legal assistance; (2) promoting a knowledge and awareness of the law; and (3) improving the administration of justice. (b) Required participation. IOLTA program participation is mandatory, except as provided in subsection (d), below. Every non-exempt lawyer admitted to practice in Montana, and/or every law firm composed of any such lawyers, which receives client funds, shall establish and maintain an interest-bearing trust account for pooled client funds, termed an “IOLTA Trust Account.” Each lawyer/firm shall also establish separate interest-bearing trust accounts for individual clients, termed “Client Trust Accounts,” when appropriate pursuant to this Rule. (c) Administration. (1) Deposits of clients’ funds. (A) All client funds paid to a lawyer/firm, including advances for costs and expenses, shall be deposited and maintained in one or more identifiable interest-bearing trust accounts (Trust Accounts) in the State of Montana. No funds belonging to the lawyer/firm shall be deposited into a Trust Account except: (i) funds reasonably sufficient to pay account charges not offset by interest; (ii) an amount to meet a minimum balance requirement for the waiver of service charges; and/or (iii) funds belonging in part to a client and in part presently or potentially to the lawyer/firm, but the portion belonging to the lawyer/firm shall be withdrawn when due unless the right of the lawyer/firm to such funds is disputed by the client, in which event the disputed portion shall remain in the account until the dispute is resolved. (B) The lawyer/firm shall comply with all Rules relating to preserving the identity of clients’ funds and property. (C) Every Trust Account shall be established with a federally-insured and state or federally regulated financial institution authorized by federal or state law to do business in Montana. Funds in each Trust Account shall be subject to immediate withdrawal. (D) The interest rate payable on a Trust Account shall not be less than the rate paid to non-lawyer depositors. Higher rates offered for deposits meeting certain criteria, such as certificates of deposit, may be obtained on Trust Account funds if immediate withdrawal is available. (E) Every Trust Account shall bear the name of the lawyer/firm and be clearly designated as either an IOLTA Trust Account or a Client Trust Account established under this Rule. 18 (2) IOLTA Trust Accounts. Every IOLTA Trust Account shall comply with the following provisions: (A) The lawyer/firm shall maintain all client funds that are either nominal in amount or to be held for a short period of time in an IOLTA Trust Account. (B) No client may elect whether his/her funds should be deposited in an IOLTA Trust Account, receive interest or dividends earned on funds in an IOLTA Trust Account, or compel a lawyer/firm to invest funds that are nominal in amount or to be held for a short period of time in a Client Trust Account. (C) The determination of whether a client’s funds are nominal in amount or to be held for a short period of time rests solely in the sound judgment of each lawyer/firm. No charge of professional misconduct or ethical impropriety shall result from a lawyer’s exercise of good faith judgment in that regard. (D) To determine if a client’s funds should be deposited in an IOLTA Trust Account, a lawyer/firm may be guided by considering: (i) the amount of interest the funds would earn during the period they are expected to be deposited; (ii) the costs of establishing and administering the account, including the lawyer’s/firm’s fees, accounting fees and tax reporting requirements; (iii) the amount of funds involved, the period of time they are expected to be held and the financial institution’s minimum balance requirements and service charges; (iv) the financial institution’s ability to calculate and pay interest to individual clients; and (v) the likelihood of delay in the relevant transaction or proceeding. (E) The lawyer/firm shall require the financial institution in which the IOLTA Trust Account is established to: (i) remit to the Montana Justice Foundation, at least quarterly, all interest or dividends on the average monthly balance in the IOLTA Trust Account, or as otherwise computed according to the institution’s standard accounting practices, less reasonable service fees, if any; (ii) with each remittance, provide the Montana Justice Foundation and the lawyer/firm with a statement showing for which lawyer/firm the remittance is sent, the period covered, the rate of interest applied, the total amount of interest earned, any service fees assessed against the account and the net amount of interest remitted; (iii) charge no fees against an IOLTA Trust Account greater than fees charged to non-lawyer depositors for similar accounts, or which are otherwise unreasonable; and 19 (iv) collect no fees from the principal deposited in the IOLTA Trust Account. (F) Annually the Montana Justice Foundation shall make available a list of all financial institutions offering IOLTA accounts and meeting this Rule’s IOLTA depository qualifying requirements. Lawyers/firms shall be entitled to rely on the most recently published list for purposes of IOLTA Rule compliance. The Montana Justice Foundation shall pay all service charges incurred in operating an IOLTA Trust Account from IOLTA funds, to the extent the charges exceed those incurred in operating non-interest-bearing checking accounts at the same financial institution. (G) Confidentiality. The Montana Justice Foundation shall protect the confidentiality of information regarding Trust Accounts pursuant to this Rule. (3) Non-IOLTA client Trust Accounts. All client funds shall be deposited in an IOLTA Trust Account, unless they are deposited in a separate interest-bearing account for a particular client’s matter with the net interest paid to the client. Such interest must be held in trust as the property of the client as provided in this Rule for the principal funds of the client. (d) A lawyer/firm is exempt from this Rule’s requirements if: (1) the nature of their practice is such that no client funds are ever received requiring a Trust Account; (2) the lawyer practices law in another jurisdiction and not in Montana; (3) the lawyer is a full-time judge, or government, military or inactive lawyer; or (4) the Montana Justice Foundation’s Board of Directors, on its own motion, exempts the lawyer/firm from participation in the program for a period of no more than two years when: (A) service charges on the lawyer’s/firm’s Trust Account equal or exceed any interest generated; or (B) no financial institution in the county where the lawyer/firm does business will accept IOLTA accounts. (e) Lawyer filings and records. (1) Filings. Each lawyer/firm shall file an annual certificate of compliance with or exemption from this Rule with the Montana Justice Foundation. The certification must include the name of the lawyer/firm listed on the account, the account number, and the financial institution name and address. The certification may be made in conjunction with the annual dues billing process. Failure to provide the certification may result in suspension from the practice of law in this state until the lawyer complies with the requirements of this Rule. Such suspension will be effected pursuant to the Rules of the State Bar of Montana governing a lawyer’s failure to pay dues and assessments. (2) Records. Lawyer trust accounts shall be maintained as prescribed by the Montana Supreme Court in the “Trust Account Maintenance and Audit Requirements” (adopted February 27, 1989). 20 (f) Implementation. Implementation will be effected through this Rule and the Rules of the State Bar of Montana, all as amended and approved by the Montana Supreme Court. RULE 1.19: SALE OF LAW PRACTICE A lawyer or a law firm may sell or purchase a law practice, including good will, if the following conditions are satisfied: (a) The seller ceases to engage in the private practice of law in the geographic area in which the practice has been conducted. (b) The entire practice is sold to one or more lawyers or law firms. (c) Actual written notice is given to each of the seller’s clients regarding: (1) the proposed sale; (2) the client’s right to retain other counsel or to take possession of the file; and (3) the fact that the client’s consent to the sale will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice. If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file. (d) The fees charged clients shall not be increased by reason of the sale. RULE 1.20: DUTIES TO PROSPECTIVE CLIENTS (a) A person who consults with or has had consultations with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had consultations with a prospective client shall not use or reveal information learned in the consultation(s), except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) Representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing, or: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the prospective client. 21 COUNSELOR RULE 2.1: ADVISOR In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation. RULE 2.2: EVALUATION FOR USE BY THIRD PERSONS (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6. RULE 2.3: LAWYERS SERVING AS THIRD-PARTY NEUTRAL (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, settlement master, mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) A lawyer serving as a third-party neutral shall inform all parties that the lawyer is not representing them. The lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client. ADVOCATE RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS (a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein: (1) without having first determined through diligent investigation that there is a bona fide basis in law and fact for the position to be advocated; (2) for the purpose of harassment, delay, advancement of a nonmeritorious claim or solely to gain leverage; or (3) to extend, modify or reverse existing law unless a bona fide basis in law and fact exists for advocating doing so. (b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 22 RULE 3.2: EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. RULE 3.3: CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence, unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of 23 a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person except as permitted by law; or (c) engage in conduct intended to disrupt a tribunal. RULE 3.6: TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. 24 (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). RULE 3.7: LAWYER AS WITNESS (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule consistent with the Confidential Criminal Justice Information Act. 25 RULE 3.9: ADVOCATE IN NONADJUDICATIVE PROCEEDINGS A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. OTHER THAN CLIENTS RULE 4.1: TRUTHFULNESS IN STATEMENT TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL (a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. RULE 4.3: DEALING WITH UNREPRESENTED PERSON (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. 26 RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. LAW FIRMS AND ASSOCIATIONS RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer within a firm shall be responsible for another lawyer in the firm’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if the lawyer acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable question of professional duty. RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; 27 (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RULE 5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 1.19, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit- sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. 28 RULE 5.5: UNAUTHORIZED PRACTICE OF LAW (a) A lawyer shall not: (1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. (b) A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this state to the lawyer’s employer or its organizational affiliates provided that those legal services are not services for which Montana requires pro hac vice admission and, when provided by a foreign lawyer and requiring advice on the law of this or another jurisdiction of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice. For purposes of this subsection, the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority. RULE 5.6: RESTRICTIONS ON RIGHT TO PRACTICE A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy. PUBLIC SERVICE RULE 6.1: PRO BONO PUBLICO SERVICE Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least fifty (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the fifty (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means; or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational 29 purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. RULE 6.2: ACCEPTING APPOINTMENTS A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client- lawyer relationship or the lawyer’s ability to represent the client. RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or (b) where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer. RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client. RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: 30 (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule. INFORMATION ABOUT LEGAL SERVICES RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false if it contains a material misrepresentation of fact or law. A misleading communication includes, but is not limited to those that: (a) omits a fact as a result of which the statement considered as a whole is materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve; (c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits; (d) states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (e) compares the quality of a lawyer’s or a law firm’s services with other lawyers’ services, unless the comparison can be factually substantiated; (f) advertises for a specific type of case concerning which the lawyer has neither experience nor competence; (g) indicates an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuous identification of such fact; (h) contains any paid testimonial about, or endorsement of, the lawyer without conspicuous identification of the fact that payments have been made for the testimonial or endorsement; (i) contains any simulated portrayal of a lawyer, client, victim, scene, or event without conspicuous identification of the fact that it is a simulation; (j) provides an office address for an office staffed only part time or by appointment only, without conspicuous identification of such fact; (k) states that legal services are available on a contingent or no-recovery, no-fee basis without stating conspicuously that the client may be responsible for costs or expenses, if that is the case; or (l) advertises for legal services without identifying the jurisdictions in which the lawyer is licensed to practice. 31 RULE 7.2: ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; and (3) pay for a law practice in accordance with Rule 1.19. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; (2) the solicitation involves coercion, duress or harassment; (3) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person cannot exercise reasonable judgment in employing a lawyer; or (4) the lawyer reasonably should know that the person is already represented by another lawyer. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a) (2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Lawyers who participate in a legal services plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See Rule 8.4(a). 32 RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his/her practice is limited to or concentrated in a particular field of law, if such communication does not imply an unwarranted expertise in the field so as to be false or misleading under Rule 7.1. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. RULE 7.5: FIRM NAMES AND LETTERHEADS (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional (e.g., website) designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. MAINTAINING THE INTEGRITY OF THE PROFESSION RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for 33 information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. RULE 8.2: JUDICIAL AND LEGAL OFFICIALS (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct. RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable code of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. RULE 8.4: MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable code of judicial conduct or other law. RULE 8.5: JURISDICTION AND CERTIFICATION A lawyer who is not an active member in good standing of the State Bar of Montana and who seeks to practice in any state or federal court located in this State pro hac vice, by motion, or before being otherwise admitted to the practice of law in this State, shall, prior to engaging in the practice of law in this State, certify in writing and under oath to this Court that, except as to Rules 6.1 through 6.4, he or she will be bound by these Rules of Professional Conduct in his or her practice of law in this State and will be subject to the 34 disciplinary authority of this State. A copy of said certification shall be mailed, contemporaneously, to the business offices of the State Bar of Montana in Helena, Montana. A lawyer not admitted to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that: (1) involves the practice of law in this State by that lawyer; (2) involves that lawyer holding himself or herself out as practicing law in this State; (3) advertises, solicits, or offers legal services in this State; or (4) involves the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.	December 16, 2016
02402c0c-8e78-4d97-8915-22a2dace9575	WINCHELL v FALLS SHEET METAL	N/A	88-301	Montana	Montana Supreme Court	No. 88-301 LN T H E SUPREME C O U R T O F THE STATE O F M O N T A N A 1989 LINDA J. WINCHELL , (Richard M. Winchell, f a t a l ) , Claimant ad Respondent, -vs- F A L T J S SHEET METAL, Employer, and STATE COMPENSATION INSURANCE FUND, Defendant and Appellant. APPEAL F R O M : The Workers' Compensation Court, The Honorable Timothv Reardon, Zudge p r e s i d i n g . COUNSEL O F RECORD: For Appellant: C h a r l e s R. Johnson; Marra, Wenz, Johnson & Hopkins, Great F a l l s , Montana For Respondent: J. David Slovak; Ugrin, Alexander, Zadick & Slovak, Great F a l l s , Montana C- Submitted on B r i e f s : Nov. 1 7 , 1 9 8 8 Decided: January 5 , 1 9 8 9 F i r e d : 2 < A - J ! I " -- C 3 G e3 C; - ED SMITH LI - Clerk Mr. Justice Fred J. Weber delivered the Opinion of the Court. Linda Winchell filed a claim for compensation following the death of her husband, Richard Winchell. The Workers' Compensation Court determined that Richard's death due to a ruptured congenital aneurysm was the result of a compensable injury within the meaning of the Workers' Compensation Act of 1985. The State Insurance Fund (State Fund) appeals from that determination. We affirm. We consolidate the issues set forth by the State Fund into a single inquiry for purposes of our review: Did the Workers' Compensation Court err in determininq that Richard Winchell's death was the result of a compensahle injury? On December 6, 1985, Richard Winchell suffered a rup- tured congenital brain aneurysm while performing his duties at Falls Sheet Metal, a family owned business in Great Falls, Montana. Richard was the president of Falls Sheet Metal, which was engaged in the sale, installation, and repair of heating and air-conditioning systems. He had been involved in the business for 31 years and his primary responsibilities were to perform warranty and service work on systems which Falls Sheet Metal installed. The morning of December 6, 1985, Richard was preparing to convert a natural gas furnace to propane when he collapsed to the floor of the shop soon after arriving at work. He was discovered by his brother, Gary Winchell, and was transported to a local hospital where he died 5 days later without re- gaining consciousness. He was 44 years old and was survived by his wife Linda and their two minor children. The cause of Richard's death is undisputed. He died of a "subarachnoid hemorrhage resulting from a ruptured congenital saccular aneurysm of the intracranial arteries at the base of the brain." Through deposition testimony, a neurosurgeon described an aneurysm as "an out-pouching or bulging in the wall of a blood vessel due to a weakness in the wall. This outpouching is a thin inelastic wall, which may either turn to fibrous tissue, or it may become thinner and thinner and then eventually burst." The neurosurgeon testified that while Richard's aneurysm was not present from birth, as might be implied from the term "congenital," the predisposition or weakness was, and the aneurysm developed over the ensuing years. All four of the medical experts deposed, including the neurosurgeon, agreed that hypertension is a major contribut- ing factor to the growth of an aneurysm. One of the medical experts stressed the importance of treating high blood pres- sure in persons with a predisposition for an aneurysm, in order to deter the aggravation of a preexisting aneurysm. There was no evidence that Richard Winchell or his doctors were aware of any high blood pressure in the decedent prior to his death. A physician who examined Richard on two occa-- sions during the year preceding his death testified that his blood pressure was normal on both dates. However, the autop- sy revealed that Richard had suffered hypertension for sever- al months prior to his death. The pathologist who performed the autopsy testified that the left ventricle of Richard's heart was enlarged, which is consistent with high blood pressure, and that the thickness of the left ventricular wall- indicated hypertension had been present for at least months. The medical experts agreed that hypertension can be sustained over a long period of time or it can be a temporary increase in blood pressure. The experts varied in their opinions about the causes of hypertension or what degree of hypertension would cause an aneurysm to rupture. Three of the experts testified that mental stress or perceived mental stress could sufficiently raise a person's blood pressure. The fourth physician stated that mental stress was not known to play an active role in the rupture of an aneurysm, but he testified that mental stress can cause the release of adrenal hormones which has been linked to hypertension. Vigorous physical activity and extreme emotional reac- tions were identified as other factors leading to a temporarv increase in blood pressure. Finally, there was testimony to the effect that, regardless of conjecture, it is impossible for medical science to determine what actually caused Richard Winchell's aneurysm to rupture. On appeal, the State Fund contends that the claimant has failed to show, either through medical testimony or by other evidence, that the decedent's work had anything to do with his ruptured aneurysm. Did the Workers' Compensation Court err in determining that Richard Winchell's death was the result of a compensahle injury? The standard of review to be applied is whether substan- tial credible evidence was presented to support the Workers' Compensation Court's determination that Richard Winchell died as a result of a compensable injury. Snyder v. San Francisco Feed and Grain (Mont. 1987), 748 P.2d 924, 929, 44 St.Rep. 2216, 2224. For Linda Winchell to be successful in her claim, she was required to prove that her husband's death resulted from an injury which arose out of and was in the course of his employment. Section 39-71-407, MCA (1985). In Snyder, this Court found a compensable injury under the 1985 Workers' Compensation Act where the claimant suffered a ruptured aneurysm which was shown to be aggravated to the point of rupture by mental strain due to the claimant's stressful work environment. Snyder, 748 P. 2d at 930. Under that theory it was necessary for Linda Winchell to bring forth evidence of a stressful work environment and to estab- lish causation. We note that the legislature has amended the definition of "in jury" under the 1987 Workers ' Compensation Act to preclude recovery for injuries caused by physical or mental conditions which arise from emotional or mental stress, which is not applicable here. Section 39-71-119, MCA . The Workers' Compensation Court correctly noted that because medical science is presently unable to determine exactly what caused Richard's aneurysm to rupture, it is necessary to look to indirect evidence to establish causa- tion. Conway v. Blackfeet Indian Developers, Inc. (1983) , 205 P4ont. 459, 468, 6 6 9 P.2d 225, 229. The court referred to the testimony of the four medical experts and Richard's wife and brothers to determine whether his rupture could have been caused by hypertension due to a stressful work environment. We will review the court's findings of fact in this regard to see if they are supported by the evidence in the record. The Workers' Compensation Court found that the period of September through the end of November is generally the most hectic time of year at Falls Sheet Pletal. Customers who have problems with their heating systems usually wait until the cold sets in to have a n ! 7 repairs done. Recently installed systems, of which there were many during that period, often require warranty service to work out minor problems. It was Richard's responsibility to respond to those service and warranty calls. According to business records, Falls Sheet Metal performed I? service calls during the month of November and 20 service calls during December of 1985. There was no documentation on how many warranty calls were made during that time. The court also found that November and December of 1985 were unusually cold months even for Montana, which resulted in Richard's service calls often being of an emer- gency nature and requiring immediate attention. These find- ings are substantiated by the testimony of Gary Winchell, Richards' brother and co-owner of the family business, who handled many of the incoming service request calls during that period. Detailed findings were made by the court regarding Richard Winchell's easygoing nature and uncomplaining atti- tude, which began to change during the weeks prior to his death. The court found Richard to be a taciturn man who liked to work at his own pace, was not accustomed to doing a lot of emergency type work, and would not express himself regarding any stresses or emotional or physical problems he might be experiencing. Although Gary Winchell testified that his brother did not appear any more hurried or busy during November, he did notice that Richard looked "kind of peaked." The court made similar findings based on the testimony of Richard's wife Linda. During the weeks prior to his death, Richard appeared to be very fatigued and he complained of the terrible cold. He had become "crabbier and he barked at the children." He complained of chest pains and intermit- tent headaches, and told Linda that he was tired because they were "running their butts off" at the shop. One Friday night approximately 2 weeks prior to his collapse, Richard respond- ed to two night-time service calls. That evening he came home from work complaining of fatigue and chills, and went to bed early. At 10:30 p.m. he was awakened by a telephone service call to which he responded and returned home an hour later. At 2:30 a.m. Richard was required to respond to another service call. He returned very tired and chilled, as it was 30 degrees below zero that night. Four days prior to his collapse, the court found that Richard suffered a debili- tating headache which he described as feeling "like he had a tumor in his head," and which caused him difficulty in sleep- ing for several days. Having reviewed the record, we con- clude that the court ' s explicit findings regarding Richard' s characteristic temperament and his apparent change in demean- or closely parallel the testimony of the brother and the wife, and that this is substantial evidence to support the court's findings. Based on those findings, the court concluded that Rich- ard's sudden change in demeanor was inconsistent with his easygoing nature, illustrating that he was undergoing a period of unusual stress. Given his tendency to keep his feelings and emotions to himself, we do not consider it unusual that Richard did not relate any stresses he might have felt to his family, much less discuss the source or implications of that stress. The medical experts agreed that hypertension is a major contributory factor to the rupture of an aneurysm, and the pathologist's findings conclusively establish that Richard suffered hypertension for at least several months prior to his death. We note that there was no evidence indicating that any other facet of Richard's life outside of his work produced any stress or emotional strain. We conclude that the medical evidence together with the other evidence is sufficient to support the court's conclusion that Richard's death was the result of a compensable injury within the meaning of the Workers' Compensation Act of 1985. Affirmed.	January 5, 1989
1ba6c5a7-a63a-4bdf-b76d-ce3b54292f47	MAHAN v FARMERS UNION CENTRAL EXC	N/A	87-005	Montana	Montana Supreme Court	NO. 87-05 IN THE SUPREME COURT OF THE STATE OF MONTANA 1988 WAYNE E. MAHAN, Plaintiff and Appellant, -vs- FARMERS UNION CENTRAL EXCHANGE, INC., doing business as CENEX, a foreign corporation, Defendant and Respondent. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding. COUNSEL OF RECORD: For Appellant: Whalen & Whalen; Timothy J. Whalen argued, Billings, Montana Boschert & Roschert; Rosemary C. Roschert, Billings, Montana For Respondent : Veeder, Broeder & Michelotti; David A. Veeder argued, and Robert J. Waller argued, Billings, Montana For Amicus Curiae: James Zion, Montana Human Rights, Helena, Montana :-3 < - 3 5.: c , I - ir. 11) - 1 7 " 1 Submitted: October 27, 1988 , - - .- . - ! - 3 . . .- ' f Decided: January 24, 1989 Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Wayne E. Mahan appeals from a judgment based on a jury verdict denying him damages against the Farmers Union Central Exchange, Inc. (Cenex) , in an action brought by Mahan in the District Court, Thirteenth Judicial District, Yellowstone County. We reverse and remand for a new trial. On February 16, 1983, Wayne E. Mahan was the head devel- opment engineer at the Laurel Refinery operated by Cenex. His employment was terminated on that date, effective March 1, 1983. Mahan was sixty years old at the time, and had worked for more than 30 years for Cenex. The jury verdict decided against Mahan on two issues, finding: (1) that Cenex was not guilty of age discrimination in terminating Wayne Mahan's employment, and ( 2 ) that Cenex had not breached an implied covenant of good faith and fair dealing in terminating Mahan's employment. We will state other facts as they become pertinent. SHOULD MAHAN'S CHALLENGES TO JURORS FOR CAUSE HAVE REEN GRANTED ? Mahan urges as a principal issue on appeal that the District Court erred in failing to grant challenges for cause made by Mahan against jurors McCann and Anderson in the voir dire selection of the jury. With respect to juror McCann, the followinq col.loquy occurred: MR. MICHAET, J. WHALEN: Thank you. Mr. McCann, you I believe have sat on a case that T tried during March of this vear; isn't that correct? MR. McCANN: That's correct. MR. MICHAEL J. WHALEN: First, my memory is that on the special verdict that was returned in that case, that you answered differently than the remainder of the jurors on the issue of punitive damages. I'll ask you whether or not there is something about punitive damages that is offensive to you in nature? MR. McCANN: Yes, there is. MR. MICHAEL J. WHALEN: Is it your position that you would not award punitivie damages in any case, v no matter what instructj-ons the Court might give you? MR. McCANN: Yes, that's correct. MR. MICHAEL J. WHALEN: Your Honor, I respectfully challenge this juror for cause. THE COURT: Mr. Veeder, do you wish to inquire of the juror? MR. VEEDER: Just briefly, your Honor. Mr. McCann, if you were given a jury instruction by the Court that indicated to you that punitive damages were a proper award or could be found to be a proper award by the jury in this case, and after hearing all of the evidence set forth during the trial and knowing what that instruction was, do you believe you could not award punitive damages? MR. McCANN: I don't think I would. THE COURT: Mr. McCann, the Court will make an inquiry. It isn't a question of one asking whether you will or wouldn't, depending on because you haven't heard the evidence; we all recognize that. The question is if the Court were to instruct you that punitive damages were recoverable, if you found certain facts to be true, and if you found those facts, would you then follow the Court's instructions? MR. McCANN: Yes, I would. THE COIJRT: All right. The challenge is denied. MR. MICHAEL J. WHALEN: Do you know of any other reason, Mr. McCann, why you couldn't be fair and impartial if you're selected in this case with the information you have at this point as to the nature of the case? MR. McCANN: No, I don't. In the voir dire questioning of juror Anderson, the following discussion took place. MR. MICHAEL J. WHALEN: Mr. Anderson, have you sat on any of the juries since you've been on this panel? MR. ANDERSON: (No oral response.) MR. MICHAEL J. WHALEN: I believe you've been on the panel since last July. Have you sat on any juries during the last year? MR. ANDERSON: No. MR. MICHAEL J. WHALEN: Your answer is no? MR. ANDERSON: No. The answer is yes. MR. MICHAEL J. WHALEN: Are you still workinq as an insurance broker at the present time? MR. ANDERSON: I'm retired. MR. MICHAEL J. WHALEN: You're retired? MR. ANDERSON: I do have some -- MR. MICHAEL J. WHALEN: I can't hear you. MR. ANDERSON: I said I've been retired. MR. MICHAEL J. WHALEN: During the years that you were working as an insurance broker, did you do any business with the Cenex refinery in Laurel or St. Paul, Minnesota? MR. ANDERSON: No. MR. MICHAEL J. WHALEN: Have you had any direct business relationships with Cenex? MR. ANDERSON: No, sir. MR. MICHAEL J. FJHALEN: You have worked in the insurance industry for a number of years, as I understand. If the Court should instruct you on the subject of punitive damages in this case, would you be willing to consider the law on that subject and award punitive damages if you felt that the facts justified it? MR. ANDERSON: I was in Helton Life Insurance. MR. MICHAEL J. WHALEN: But is there anything -- Strike that. Punitive damages can be allowed by a jury for the sake of example, if the Court tells you it's a matter that you can consider. If the Court should tell you that it is a matter that you can consider in this case, would you be willing to consider it fairly and openly? MR. ANDERSON: Yes, sir. MR. MICHAEL J. WHAI,EN: You'd be able to follow t . h e law as given to you by the Court? MR. ANDERSON: Yes, sir. MR. MICHAEL ANDERSON: Do you know of any reason why you couldn't be fair and impartial if you are selected as a trial juror in this cause? MR. ANDERSON: Would you state that again, sir? MR. MICHAEL J. WHALEN: Do you have difficulty hearing? MR. ANDERSON: Somewhat, yes. And I ' have a little speech -- MR. MICHAEL J. WHALEN: Excuse me? MR. ANDERSON: (No oral response.) MR. MICHAEL, J. WHALEN: Do you have difficulty hearing me? MR. ANDERSON: NO, not now. MR. MICHAEL J. WHALEN: Do you feel you would. have difficulty hearing the evidence in this case? MR. ANDERSON: I could hear the evidence. MR. MICHAEL J. WHALEN: Well, do you think you could hear it all as we're going along? MR. ANDERSON: Yes, I do. MR. MICHAEL J. WHALEN: Do you know of any reason why you couldn't be fair and impartial if you are selected as a juror in this case? MR. ANDERSON: No reason. MR. MICHAEL J. WHALEN: Do you use a hearing aid at all? MR. ANDERSON: Not at all. MR. MICHAEL J. WHALEN: When you were in the insur- ance business, did you manage or oversee other employees? MR. ANDERSON: That's right, I do -- I have. MR. MICHAEL J. WHALEN: How many employees did you have? MR. ANDERSON: It would vary for the insurance agents. MR. MICHAEL J. WHALEN: What would be, generally, the number that you would have? MR. ANDERSON: Well, usually it would be about 25. MR. MICHAEL J. WHALEN: Having been in business yourself and managed 25 people on some occasions, do you feel that you would be inclined to favor management as distinguished from the plaintiff, an employee in this case? MR. ANDERSON: Could YOU -- MR. MICHAEL J. WHALEN: Do you feel that you would be inclined to favor management in this case be- cause of --- MR. ANDERSON: Oh, Yes. MR. MICHAEL J. WHALEN: -- because of your history? MR. ANDERSON: Yes. MR. MICHAEL J. WHALEN: You would favor management. That would he over the plaintiff, who is an employee? MR. ANDERSON: (NO oral response.) MR. MICHAEL J. WHALEN: Whatever the evidence is, as I understand your answer, you would favor man- agement; is that correct? MR. ANDERSON: I would favor management because I was hiring and -- agents, and it wouldn't be 25 that would seek -- and sometimes it -- they'd quite [sic] -- you know -- and go to -- they'd quit, yo11 know, and go to other -- MR. MICHAEL J. WHALEN: When you tell me that you would favor management in this case, is that a fixed and abiding feeling that you have that you should do? MR. ANDERSON: I prefer the management part, yes. MR. MICHAEL J. WHAL,EN: You wou3.d favor management in this case? MR. ANDERSON: Yes. MR. MICHAEL J. WHALEN: Your Honor, T respectfully challenge the juror for cause. THE COURT: Mr. Veeder? MR. VEEDER: Could you tell me what you mean when you say favor management? MR. ANDERSON: I prefer to -- instead of being strictly agent, I like to manage, and I would recruit, too, and -- MR. VEEDER: That was your job before? MR. ANDERSON: Yes, sir. MR. VEEDER: But -- MR. ANDERSON: I was in the business 27 years, and I retired the end of '79. MR. VEEDER: Okay. But the question, sir, is whether you could hear the evidence in this case and wait until you fully heard the evidence before making up your mind, and when you did so, could you reach a verdict in a fair and impartial basis, being fair to both the plaintiff and to the defen- dant in this case? MR. ANDERSON: Yes, sir. MR. VEEDER: Could you do that? MR. ANDERSON: Yes, sir. MR. VEEDER: So any favoritism that you might feel for or towards management you could set aside and hear the evidence fairly? MR. ANDERSON: Yes, sir. MR. VEEDER: We have no further questions. THE COURT: Mr. Anderson, when you said you favored management, did you mean that while you were work- ing, you preferred to be in management rather than out selling? MR. ANDERSON: That's right. THE COURT: All right. The challenge is denied. MR. MICHAEL J. WHALEN: I renew the challenge, your Honor, for the reason that it is apparent from what has taken place that the prospective juror will not be adequately able to follow the proceedings in this case. He has repeated on more than one occa- sion that he would favor management in making a decision in the case. THE COURT: The challenge is denied. MR. MICHAEL J. WHALEN: Do you know of any other reasons that might make it difficult for you to be fair and impartial in this case, Mr. Anderson? MR. ANDERSON: Would you repeat that, please? MR. MICHAEL J. WHALEN: Do you know of any other reason why it would be difficult for you to be fair and impartial in this case? MR. ANDERSON: Mot at all. I wouldn't be partial. MR. MICHAEL J. WHALEN: Sitting where you are at the present time, are you inclined to decide this case in favor of the defendant at this point? MR. VEEDER: I object, your Honor. THE COURT: Sustained. When a prospective juror has an unqualified opinion or belief as to the merits of the action, that juror is subject to a challenge for cause. Section 25-7-223, MCA. Generally, the determination as to whether a prospective juror is quali- fied or unqualified is left to the sound discretion of the trial court. This, because the trial court has the advantage of observing the witness and accordingly the court's decision to allow a juror to sit should not be set aside unless the error is manifest, or there is shown a clear abuse of discre- tion. State v. Williams (1979), 185 Mont. 140, 150, 604 ~ . 2 d 1224, 1229; State v. Russell (1925), 73 Mont. 240, 249-250, In this case plaintiff's counsel was forced to use two of his peremptory challenges to excuse prospective jurors McCann and Anderson from the case. He utilized all of his peremptory challenges, and points out in brief that there were other selected jurors against whom he would have used such challenges. In Abernathy v. Eline Oil Fields Services, Inc. (1982), 200 Mont. 205, 650 P.2d 772, we had a case where the District Court intervened during voir dire examination of a juror to rehabilitate the qualifications of the juror. In Abernathy, the trial court's discussion with the prospective juror was more extended. Generally we apply the rule that the trial court is in a better position to judge the prejusice of jurors, and that its decision will not be set aside unless the error is manifest or there is a clear abuse of discre- tion, Anderson v. Burlington Northern Inc. (Mont. 1985) , 709 P.2d 641, 42 St.Rep. 1738, even where there has been a forced use of a peremptory challenge. Abernathy, supra. In this case, however, the error is manifest. McCann obviously had a fixed scruple against punitive damages and had followed his scruple in a previous jury trial. Anderson not only stated he preferred the management side but appeared to have diffi- culty in speaking and hearing. The District Court, of course, may supplement the voir dire examination by his further inquiry, as permitted by Rule 47 (a) , M. R.Civ. P. However, in each case here the inquiry by the District Court was of a general nature, and not pointedly directed to the manifest "existence of a state of mind in the juror evincing enmity against or bias in favor of either party.'' Section 25-7-223(7), MCA. Mahan's counsel was thus forced to waste peremptory challenges he might have used elsewhere on the panel. In Montana the right to a jury trial is secure to all- and remains inviolate. Art. 11, Section 26, 1972 Mont. Const. Concomitant with that right is the right to a faj-r and impartial jury. Because we reverse and remand for a new trial, there are other matters raised in the briefs in this appeal which may be subject to controversy in any retrial. Accordingly, we will examine those issues for that purpose, pursuant to 5 3-2-204 (3) , MCA. DID THE COURT COMMIT ERROR IN LIMITING THE TESTIMONY OF PLAINTIFF'S STATISTICIAN WITH REGARD TO AGE DISCRIMINATION? In Montana, an employee has the right to obtain and hold employment without discrimination as to age. Section 49-1-102(1), MCA. Courts have recognized that statistics are commonly used in discrimination cases. As the United States Supreme Court has observed: . . . Our cases make it unmistakably clear that " [sl tatistical analyses have served and will con- tinue to serve an important role" in cases in which the existence of discrimination is a disputed issue. Teamsters v. United States (1977) 431 U.S. 324, 339, 97 S.Ct. 1843, 1856, 52 L.Ed.2d 396, 417. In this case the court limited the plaintiff's statisti- cal expert to testimony of statistical tests performed on the Laurel nonunion employees. The District Court refused to allow the expert to testify to results from a statistical analysis of company-wide terminations of employment including union members. Obviously, the inclusion of union employees in the statistical population, whose employment contracts contained seniority rights, would skew the figures affecting older terminated nonunion employees as to the probability that older nonunion employees were discriminated against on the basis of age. The court was correct in so limiting the testimony. The result of the limitation was that the entire popula- tion of terminated employees considered by defendant's sta- tistical expert was forty-nine persons. On cross-examination of defendant's statistical expert, the plaintiff's counsel used an elementary statistics textbook which indicated such a number was insufficient for a chi-squared test. The plain- tiff is not now barred from reinforcing the textbook with live testimony on retrial relating to the statistical effect of low-numbered samples. DID THE COURT COMMIT ERROR IN LIMITING AND EXCLUDING TESTIMO- NY OF PLAINTIFF'S LABOR RELATIONS EXPERT? The District Court denied plaintiff's offer of proof through the witness Allan D. Brown that the policies of the defendant were d-eficient in good personnel practices; that the defendant failed to act in good faith, based upon the information made available to Brown from the case; that the policies of the defendant in connection with the termination of personnel in a reduction of force proceedings were not adequate; that the manner of which Mahan was terminated was not conducted fairly through a good personnel policy; and that the actual termination of the plaintiff was unfair under all the circumstances of the case. In denying the offer of proof, the District Court indi- cated that it would limit the testimony of the expert to the personnel manual then in existence, and that it would not permit the witness to testify as to his opinion that the company may have breached the implied covenant of good faith and fair dealing. The District Court indicated that it was basing its decision upon the cases of Crenshaw v. Bozeman Deaconess Hospital (1984), 213 Mont. 488, 693 P.2d 487, and Flanigan v. Prudential Federal Savings & Loan (Mont. 1986), 720 P.2d 257, 43 St.Rep. 941. In Crenshaw, relying on Rule 702, M.R.Evid., that the testimony of an expert is admissible if it will "assist the trier of fact to understand the evidence or to determine a fact in issue," this Court said: The trier of fact's experience does not extend to Hospital disciplinary guidelines, much less the ability to evaluate the propriety of such guide- lines. We find Dr. Vinton's perspective assisted the jury to understand the evidence and ultimately the breach of implied covenant of good faith and fair dealing question at issue. Further, the Hospital's counsel moved in limine to exclude Dr. Vinton's testimony. The argument was presented to the trial judge. The trial court in its broad discretion admitted the expert testimony. The trial court's order will not be disturbed on appeal in the absence of a clear showing of a manifest abuse of discretion. [Citing cases.] Crenshaw, 213 Mont. at 405, 693 P.2d at 495. In Crenshaw, this Court also noted: The instant case is not a scenario of simple facts. Fault arising from breach of implied covenant of good faith and fair dealing is not easily compre- hensible to the average person. Dr. Vinton's testimony was based on professional expertise and experience which the individual jury members were unlikely to possess. Her testimony assisted the trier of fact by providing the jury with informa- tion and a prospective [sic] beyond the common experience of a lay juror. [Citing authority.] Crenshaw, 213 Mont. at 502, 693 P.2d at 494. In Flanigan, this Court approved the foregoing state- ments from Crenshaw, and went on to state that the District Court in Flanigan had acted properly in allowing expert testimony interpreting written employment policies of the employer. It appears that the order of the District Court during trial correctly interpreted our holdings in both Crenshaw and Flanigan. In the case at bar, the court did permit experts for both parties to testify as to whether the company com- plied with or violated its own policies. That ruling, of course, followed Crenshaw and Flanigan. As to whether the District Court erred in disallowing opinion testimony from the expert about the covenant of good faith and fair dealing, we are unable to say. The offer of proof did not include t.he specifics on which the proper testimony of the expert witness would be based. We only restate that under Flanigan, based on Crenshaw, opinion testimony from expert witnesses considering the covenant of good faith and fair dealing is admissible, provided that foundation testimony is in the record, and the conditions of Rule 702, M.R.Evid., that the specialized knowledge of the expert will assist the trier of fact to understand the evi- dence or to determine the fact of issue are met. Though not explicitly stated in the record, it appears that part of the reason for the District Court's refusal of the offer of proof in this case was based upon the expert's background and experience, since he had made no study of nationwide policies and practices relating to terminations in reductions in force. DID THE DISTRICT COURT ERR IN ALLOWING DEFENDANT'S STATISTI- CIAN TO TESTIFY AS TO WHAT WAS SIGNIFICANT STATISTICALLY IN SHOWING AGE DISCRIMINATION, RATHER THAN LIMITING HIS TESTIMO- NY TO EXPLAINING WHAT THE TESTS SHOWED IN THE SAME MANNER THAT PLAINTIFF'S STATISTICIAN WAS LIMITED? Defendant's statistician, Ira Chorusa, testified as to three statistical tests that he applied to finish exhibit 13A, an exhibit through which plaintiff's expert had earlier testified which showed age discrimination. In response to a question from defendant's counsel as to whether he had found any statistical significance in the outcome of his tests, he responded: A. Well, there is no statistical significance as an outcome of any of these tests. Q. What does that mean? A. What that means is that there is no evidence, based on these tests, that age was used as a factor. The defendant's counsel objected on the grounds that the testimony went beyond what he was allowed when his expert was testifying. In chambers, the District Court examined the previous testimony of plaintiff's expert: THE COURT: I have before me the series of ques- tions that you posed to your expert that you had and the answers which you had typed in advance, Mr. Whalen, and the last question was, "What does that mean?" The answer which is typed, and as I recall, the answer was very close to this, if not almost verbatim, "It means that this result would occur b~7 chance only 13% of the time, or conversely, the results are consistent with the pattern of discrim- ination as to age in terminating employees 8 7 % of the time. I ' The District Court made it clear in the discussion in chambers that it would not permit either expert witness to testify that there was or was not actual age discrimination in this case. It appears that the answer of the defendant's expert came very close to stating that there was no evidence of age discrimination, although he may have been referring merely to plaintiff ' s exhibit 13A. In any event, we affirm the position of the District Court that on retrial the stat- isticians may testify that their statistical tests show or do not show patterns of discrimination based on age, but may not testify to the ultimate conclusion that age discrimination in his termination was or was not exercised against Wayne Mahan in this case. The jury should be the final arbiter of that issue. Rule 704, M.R.Evid. SHOULD THE COURT HAVE INSTRUCTED THE JTJRY ON THE ISSUE OF RETALIATION? It is an unlawful discriminatory practice for any em- ployer to discriminate against an individual because he has filed a complaint, testified, or participated in any manner in an investigation or proceedings before the Human Riqhts Commission. Section 49-2-301, MCA. Plaintiff testified that he was retaliated against by his employer in that the employer refused to give him a letter of reference because he had sued the company, and that he was not included in the company and employee functions after he had sued the company. Under the statutes, acts of retaliation for participat- ing in proceedings before the Human Rights Commission are discrimination actions separate and apart from the claim of d-iscrimination in the original proceedings. It might possi- bly be considered evidence of bad faith in the original termination of employment as well as in the retaliation. Plaintiff was therefore entitled to instructions to the jury based on his claim of retaliation, as it was for the jury to determine whether such retaliation actually existed. He was further entitled to comment on such retaliation in oral argument. DID THE DISTRICT COURT ERR IN REFUSING TO ADMIT TESTIMONY OF THE COMMISSIONER'S COMPLIANCE OFFICER, JERRY KECK? In hearing the dispute between Mahan and Cenex, Keck found that there was "probable cause" to believe that Cenex discriminated against Mahan on the basis of age. Mahan of- fered the determination testimony at the District Court. Mahan directs our attention to Rule 8 0 3 ( 8 ) (C) of the Federal Pules of Evidence which allows public records and reports. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ( 8 ) Public records and reports. Records, reports, statements or data compila- tions, in any form, of public officers or agencies, setting forth . . . (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to an authority granted by law, unless the sources of information or other circum- stances indicate lack of trustworthi- ness. However, the rule as adopted in Montana, Rule 803 (8) (iv) M.R.Evid., states: [Not excluded by the hearsay rule are3 . . . records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: . . . (iv) factual findings re- sulting from special investigation of a particular complaint, case, or incident. The Commissioner's comments to the Montana Code provides that it adopted the uniform rule ( 1 9 7 4 ) , rather than the federal rule "because it was clearer than the Federal Rule and because it expressed better policy with certain reports in requiring the official to testify rather than admitting his report as a hearsay except.ion." The Commission carefully considered the exceptions to Rule 803(8), before adopting the uniform rule. The very investigation information that the federal rule allows is specifically excluded in the Montana rule. The District Court did not err in excluding the testimony offered by Mahan. Another consideration concerning v~hether the testimony of the compliance officer is allowable is whether as an expert witness he can testify as to the determination he ma.de for the Human Rights Commission. Rule 704, M.R.Evid., states: Opinions on ultimate issue. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. The Advisory Committee's Note to Federal Rule 704 (the rule being identical to the Montana rule) , 56 F.R.D. 183, 284-85 (1972) indicates: . . . that the "basic approach to opin- ions, lay and expert, in these rules is to admit them when helpful to the trier of fact." . . . the rule is not intended to allow all opinions and would exclude those "which would merely tell the jury what result to reach. . ." It was Keck's intention to testify that he determined that Mahan had been discriminated against because of his age. This is a determination for the jury to make. The issue here is not so complex that the jury is not able to determine whether there was age discrimination. Moreover, there was other sufficient evidence offered by both parties from which the jury could make a reasonable determination of whether there was age discrimination. OTHER SPECIFICATIONS OF ERROR We determine that the court properly instructed the jury with respect to the issues of bad faith and implied covenant of good faith and fair dealing in this cause. We find no error in the offered instructions on these subjects which were refused by the court. We conclude it was within the discretion of the District Court to exclude refinery yield statements; evidence respect- ing new construction at. the refinery; whether the reduction of force was caused by the mismanagement of the company; the relationship of the cost of labor to the cost of producing a refined product at the Laurel refinery; the benefits of Mahan's job to the company and his ability to fill the job; and the exclusion of exhibit 30 which does not particularly relate to age discrimination. Moreover, it was not error to allow defendant to offer evidence showing the necessity of the cost containment program which the defendant contends led to the reduction in force. Accordingly, the judgment of the District Court is reversed, and the cause remanded to the District Court for further proceedings. Costs to plaintiff. C h i > f Justice We concur: Justices - 19 - Justice John C. Sheehy, concurring and dissenting. I concur with the majority opinion but dissent from its holding that the "reasonable cause" finding of the state Human Rights Commission and the testimony of its compliance officer are not admissible. After his discharge, Mahan filed a complaint of age discrimination in employment with the Federal Equal Employment Opportunity Commission (EEOC). That agency deferred investigation of Mahan's complaint to the Montana Human Rights Commission. Mahan filed a perfected state complaint with the Montana Human Rights Commission on August 19, 1983, based on § 49-2-303, MCA. After the Commission's staff investigated the complaint, it made a written finding of reasonable cause to believe Mahan had been subjected to age discrimination in his employment with Cenex. The written finding was made on August 16, 1984. On October 5, 1984, because the complaint had been pending for more than one year at that point ( S 49-2-509(1)(b), MCA), at the request of Cenex, the Commission issued a "right to sue letter." This procedure compelled Mahan to file a de novo action in District Court ( 5 - - 49-2-509 (7) , MCA. ) . Mahan filed his complaint in the District Court on December 6, 1984, including his age discrimination claim with other theories of recovery against Cenex. In a special interrogatory, the jury found that Cenex was not guilty of age discrimination in terminating Wayne Mahan. During the course of the trial the District Court ruled that Jerry Keck, the compliance officer of the Human Rights Commission, could not give testimony as to the regular procedures of the Human Riqhts Commission in investigating a complaint of age discrimination or his testimony as to where he obtained the information used in making a findinq. The court further ruled that the written reasonable cause findinq issued by the Commission was not admissible. The Human Rights Commission found that 5 younger engineers were hired and that 4 older engineers were discharged. One engineer was hired just 6 months before notice was given to Mahan of his discharge. Mahan also offered testimony through Keck that by the action of Cenex in refusing severance pay to Mahan after he filed an age discrimination complaint, Cenex may have been in violation of the retaliatory provision of the Human Rights Act. (Section 43-2-301, MCA.) The Fluman Rights Commission filed in this appeal an amicus curiae brief. The purpose of the amicus brief was to inform the court of the development of law on the admissibility of Commission findings, the testimony of its staff members, and the use of statistics gathered durinq investigation as "probative evidence." The District Court refused the written finding of reasonable cause based on Rule 803 (8) (iv) , M. R. ~vid. The court denied the oral testimony of Jerry Keck also. Thus, there are two subissues which should be determined by us; one, whether the report of reasonable cause was admissible; and two, whether the oral testimony of Jerry Keck should have been allowed. In Chandler v. Roudebush (1976), 425 U.S. 840, 48 L.Ed.2d 416, 96 S.Ct. 1949, the United States Supreme Court determined that such a report was admissible, relying on S 803 (8) (c) of the Federal Rules of Evidence. Cenex contended before the District Court (and the District Court agreed) and now contends that the Rule 803(8) as adopted in Montana is different from the federal rule and therefore Chandler i . s not authority. The pertinent part of Rule 803, M.R.Evid., is as follows: Rule 803. Heresay exceptions; availability - of declarant immaterial. The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (8) Public Records and Reports. To the extent not otherwise provided in this paragraph, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed bv law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to an authority granted by law. The following are not within this exception to the hearsay rule: . . . (iv) factual findings resulting from special investigation of a particular complaint, case, or incident; and (v) any matter as to which the sources of information or other circumstances indicate lack of trustworthiness. The Montana Supreme Court Commission on Rules of Evidence, in adopting what is now Rule 803 (8) purposely departed from the federal rule. It explained why in its comment contained in its report to this Court on November 3, 1976: Exception (8). Public records and reports. This exception is not the same as Federal Rule 803(8), but is identical- to IJniform Rule (1974) 803 (8) . The Commission chose to adopt the Uniform provision because it was clearer than the Federal Rule and because it expressed better policy with certain reports in requiring the official to testify, rather than admitting his report as a hearsay exception. The guarantee of trustworthiness of this exception can be found partly under Exception ( 6 ) , records of regularly conducted activity, partly under the assumption that official duty is regularly performed [R.C.M. 1947, Section 93-1301-7 (14) ] and "the unlikelihood that he will remember details independently of the record." Adviscry Committee's Note, Supra 56 F.R.D. at 311. This exception Is consistent with existing Montana law except that it clarifies several areas where official reports are to be excluded. R.C.M. 1947, Section 93-1001-32, provides the entries in official books or records, made in the performance of official duty are prima facie evidence of the facts stated therein. R.C.M. 1947, Section 93-901-1, et. seq., the Uniform Official Reports as Evidence Act, modernizes this exception to the hearsay rule. Section 93-901-1, MCA, provides: "Written reports or findings of fact made by the officers of this state, on a matter within the scope of their duty as defined by statute, shall, insofar as relevant, be admitted as evidence of the matter stated therein." The adoption of the exception is intended to remove the restriction of admitting only reports from state officials, found in the statute and applied in Richardson v. Farmers' Union Oil Co., 131 Mont. 535, 553, 312 P.2d 134 (1957). Note that a police report was excluded in a civil case, but on grounds that it stated the cause of an injury, in Gagnier v. Zook, 141 Mont. 214, 377 P.2d 101 (1962). This exception is inconsistent with State v. Snider, 168 Mont. 220, 541 P.2d 1204, 32 St.Rep. 1056, 1062 (1975), which held a state chemist's report admissible under Section 93-901-1, RCM (1947), and so this case is overruled by this exception. The comment of the Commission made it clear that in those cases where reports of agency action are refused, it is "better policy with certain reports in requiring the official to testifv." The refusal therefore of the District Court to allow the testimony of Jerry Xeck flies in the face of the reason adopted by the Commission in refusing the report in the first place. There is an internal conflict within the present form of Rule 803(8). In the first sentence it makes admissible "factual findings resulting from an investigation made pursuant to authority granted by law." The authority of the Human Rights Commission to investigate age discrimination cases is found j . n Chapter 2, of Title 49, MCA. Therefore under the first sentence of 803(8) its report of reasonable cause should have been admitted. However, subparagraph (iv) "factual findings resulting from special investigation of a particular claim, case or incident," seems to take away what is granted in the first sentence. In the face of the ambiguity contained in Montana's S 803 (8) , the better practice is to fol low the examples of the federal courts in construing the reports of the EEOC. The court of appeals for the Ninth Circuit strongly favors the admission of such reports as these in federal cases. Bradshaw v. Zoological Society of San Diego (1978), 569 F.2d 1066; Plummer v. Western International Motels Inc. (1978), 656 F.2d 502. In that Court of Appeals, whose jurisdiction includes Montana, under the federal system (it is also true in our system) the report to the Court of the Commission requires a de novo proceeding. - - The trier of fact therefore must determine from the beginning and on its own whether or not an infraction of the discrimination statutes occurred. The court said in Plummer: A civil rights plaintiff has a difficult burden of proof and should not be deprived of persuasive evidence. We therefore hold that the plaintiff has a right to introduce an EEOC probable cause determination in a Title VII lawsuit, regardless of what other claims are asserted, or whether a case is tried to a judge or jury . . . 656 F.2d at 505. The weight, of course, of this evidence is for the j u r y 7 to decide. Amicus brief points to a jury instruction in Gilchrist v. Jim Slemons Imports, Inc. (9th Cir. 19861, 803 F.2d 1488, 1500-1501, wherein the Court approved: The District Judge instructed the jury that "the letter need be given no greater weight than any other evidence in deciding the age discrimination claim" and "that you, the jury, and not the EEOC are the sole judges of whether or not there was a violation of the Age Discrimination Employment Act." The reason for admitting such reports was expressed by Smith v. Universal Services, Inc. (5th Cir. 1972), 454 F.2d 1 5 4 : . . . The action of the EEOC is not agency action of a quasi-judicial nature which determines the rights of the parties subject only to the possibility that the reviewing courts might conclude that the EEOC's actions are arbitrary, capricious or an abuse of discretion. Instead, the civil litigation at the district court level clearly takes on the character of a trial de novo completely separate from the actions of the EEOC. (Citation omitted. ) It is thus clear that the report is in no sense binding on the district court and is to be gj-ven no more weiqht than any other testimony given at trial. This is not to say, however, that the report is inadmissible. A trial de novo is not to be considered a trial in a vacuum. To the contrary, the district court is obligated to hear evidence of whatever nature which tends to throw factual light on the controversy and ease its fact-finding burden. 4 5 4 F.2d at 157. Though the Court of Appeals for the Ninth Circuit holds such reports admissible as a matter of right, its view of admissibility is by no means the minority view. Courts considering admissibility generally determine that the question is discretionarv with the courts, and as the brief of amicus points out, without burdening this opinion with extraneous citations, reports are admissible as "significant evidence , " as "discret.ionary, " "absent preiudice, " in the exercise of "sound discretion," "admissible unless shown not trustworthy," and similar holdings. We are also concerned about the impact that a ruling of inadmissibility for Commission reports would have on other areas of illegal discrimination. The Human Rights Commission concerns itself with not only age discrimination, but other discrimination in employment, in public accommodations, in housing, in financing and credit transactions, in education, in insurance and retirement plans, in maternity leave, and in discrimination by the state. Part 3, Chap. 2, Title 49, MCA. The better view, to be consistent with the Ninth Circuit, is to hold such reports admissible, and for the trial court to instruct the jury to give such reports only the weight they should be accorded. In like manner, the oral testimony of Jerry Keck should have been admitted by the District Court. As an agent of this State, making an investigation which is authorized by law, his findings of fact were admissible, and constituted probative evidence which would be an aid to the jury. Justice I?. C. Mcnonough dissents and concurs as follows: I dissent. The trial court's ruling on Mahan's challenges to jurors for cause was not clearlv erroneous, and I would affirm the jury's verdict. I concur, however, with the balance of the majority opinion. If Mahan's objection for cause to the two jurors was for a legal cause, this Court would be in as good a position as the trial court to decide the question. Instead, Mahan's objection goes to the grounds of unqualified opinion, belief as to the merits, or existence of the state of mind evincinq enmity against or biase in favor of a party. The majority has also alluded to Anderson's possible physical incompetency. Disqualification of a juror on any of these grounds is a question of fact to be decided by the trial judge. Rule 47 (a) , M.R.Civ.P. ; Simons v. Jennings (1935) , 100 Mont. 55, 46 P.2d 704. By the very nature of a jury selection proceeding, the challenging party bears the burden of proof that the proposed juror should be dismissed for cause. Sirotiak v. H.C. Price Co. (Alaska 1988), 758 P.2d 1271; City of Kotzebue v. Ipalook (Alaska 1969), 462 P.2d 75, 77; Borman v. State (Mich.App. 1967), 229 A.2d 440; State I T . Davis (Ariz.App. 1983), 672 P.2d 480. For this Court to reverse a trial court's ruling on a question of fact, we must find that the ruling is clearly erroneous. Rule 52 (a!, M.R.Civ.P. As with any trier of fact, the District Court has the advantage of observing a prospective juror's demeanor and the tenor of his answers. Nonverbal communication skills are important on voir dire in the selection of a jury. See, V. Starr & M. McCormick, Jury Selection (1985), Chapters 11, 12, 13 and 14. The look on a prospective juror's face sometimes indicates whether he correctly understands the question and how his answer is to be taken. This Court discussed the nature of jury selection proceedings in Watson v. City of Bozeman (1945), 117 Mont. 5, 10-11, 1 - 5 6 P-2d 1781 lB1: While we feel that under the circumstances of this case, on proper motion, the trial court should call in other jurors, we cannot say that its failure to do so constituted an abuse of judicial discretion. As is said in State v. Russell, supra [73 Mont. 240, 235 P. 7151 : "The examination of a juror on his voir dire is no more nor less than the taking of testimony on the issues raised as to his qualifications to serve in the case before the court. . . . The determination must be left largely to the sound discretion of the trial court (Scrihner v. State, 3 0kla.Cr. 601, 108 Pac. 422, 35 L.R.A., N.S., 985; Commonwealth v. Minney, 216 Pa. 149, 65 A. 31, 116 Arn.St.Rep. 763) and, in determining the question, the trial court, as in passing upon any other question of fact established by oral testimony, has the advantage of observing the witness on the stand, his demeanor and candor, or lack of candor, and a review of the court's rulings and findings should be governed by the same rules as in reviewing any other findings and judgment based thereon. They should not be set aside unless error is manifest, or there is shown a clear abuse of discretion." It is clear from the colloquy among McCann, Anderson and the attorneys in this case that the jurors expressed an opinion, belief or preference. It is also clear, however, that the jurors said they would put these aside and follow the instructions of the court. When jurors on voir dire make conflicting statements, it is a question of fact for the trial -judge to decide whether they can act impartially. People v. Duncan (~al. 19601, 350 P.2d 103; Rule 47(a), M.R.Civ.P. The statements made by these prospective jurors in response to questions by the court (and counsel for Cenex in Anderson's case) conflicted with their prior responses to questioning hy counsel. The court committed no manifest, clearly apparent, or obvious error, even in the "cold" record. The majority mischaracterizes the court's questions as too general. In reality, counsel's questions were as general or more general than those asked by the court. The proper approach for deciding whether a juror is impartial is found in State v. White (1968), 151 Mont. 151, 155-56, 440 P.2d 269, 272. In White, this Court quoted State v. Allison (1948), 122 Mont. 120, 199 P.2d 279, and said: "It is a difficult matter at best to ascertain the real state of mind of a prospective juror with respect to detecting the existence of bias or prejudice against one accused of crime. For that reason this court has said (State v. Russell, 73 Mont. 240, 249, 235 P. 712, 715) that the determination of the qualification of a juror to serve in a case before the court 'must be left largely to the sound discretion of the trial court. ' Again in State v. Huffman, 89 Mont. 194, 296 P. 789, 790, this court said: ' . . . the trial court is the judge of the weight to be given to the testimony adduced on a voir dire examination.' True, there are cases holding that when a witness has once admitted bias his subsequent statements that he can consider the evidence impartially should be viewed with caution. But granting the need for careful scrutiny of the testimony of a witness who has first said 'no' and then said 'yes, ' it still remains the province of the trial court to decide where the truth lies and with that determination the appellate court will not interfere unless a clear abuse of discretion is shown. State v. Russell, supra." Although this Court said in Watson and White that appellate courts would not interfere unless a clear abuse of discretion is shown, with the adoption of Rule 5? (a) , M.R.Civ.P., the test should be whether the court's decision is clearlv erroneous. The ma jority' s reference to the constitutional right of a iurv trial is inappropriate. Althouah Mahan's counsel was forced to use two peremptory challenges on McCann and Anderson, he did not challenge the jurors who replaced them for cause. None of the members of the jury that eventually sat in this case were challenged for cause by Mahan's counsel. The right to four peremptory challenges is only statutory. See, 5 25-7-224 (1) , MCA. The Legislature could raise or lower the numher of challenges if it so desired. Lt is merely a means of obtaining a fair and impartial jury. There is no constitutional right to exercise peremptory challenges and the loss of such a challenge is not of constitutional dimension. Ross v. Oklahoma ( 1 9 8 8 3 , U.S. , 108 S.Ct. 2273. Y P & ~ ustice Mr. Justice L . C. Gulbrandson: I concur with Mr. Justice McDonough. IN THE SUPREME COURT OF THE STATE OF MONTANA No. 87-005 WAYNE E. MAHAN, 1 Plaintiff and Appellant, 1 v. FARMERS UNION CENTRAL EXCHANGE, 1 INCS., doing business as CENEX, a foreign corporation, 1 Defendant and Respondent. 1 ORDER DENYING PETITION-OR $ ; PEHEARIN~ co -U m ZD The Court having considered the petition for rekeasng m n of Farmers Union Central Exchange, Inc., and the reep$nspof - u C TV Wayne E. Mahan, thereto, w CX, -i IT IS ORDERED: 1. The Court strikes from its original opinion (P. 9, opinion) any reference that plaintiff's counsel used a preemptory challenge against juror Anderson. 3 In all else, the petition for rehearing is DENIED. L . 3. Copies hereof to counsel of record. DATED this day of March Justices - 1 - "here is stricken from the dissent the two sentences commencing at the bottom of page 29 with the words "Although Mahan's" and ending on page 30 with the words ahan an's Counsel. " Justices R.C. McDonough and L.C. Gulbrandson would grant the petition for rehearing.	January 24, 1989
ebca03e6-5c51-4729-a598-87fad693811e	Bird v. Cascade County	2016 MT 345	DA 16-0162	Montana	Montana Supreme Court	DA 16-0162 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 345 STACEY BIRD, an individual, Plaintiff and Appellant, v. CASCADE COUNTY, a political subdivision of the State of Montana; and CASCADE COUNTY BOARD OF COMMISSIONERS, the governing body of Cascade County, Defendants and Appellees. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV 13-888 Honorable Greg Pinski, Presiding Judge COUNSEL OF RECORD: For Appellant: Hollie Del Vecchio, Ph D, Adaptive Law Firm PS, Mount Vernon, Washington For Appellees: Mark F. Higgins, Jordan Y. Crosby, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana Submitted on Briefs: October 19, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 16-0162 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 The Cascade County Board of Commissioners terminated Stacey Bird from her position as the County’s Human Resources Director. Bird filed a wrongful discharge claim against the County and the Board of Commissioners. The Eighth Judicial District Court held that the County had good cause to terminate Bird. It granted the County summary judgment. Bird appeals on the ground that a jury must determine the issue of good cause. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 The County hired Bird as Human Resources Director in October 2008. Bird directly supervised four employees and managed a $350,000 budget. Bird oversaw typical human resource functions, including: supervising payroll for all County employees; administering and enforcing collective bargaining agreements; ensuring compliance with state and federal employment laws; drafting and implementing human resource policies; and administering the County’s benefits programs. Bird also was responsible for redrafting the County’s Policy and Procedures Manual, which she never completed. ¶4 As a department head, Bird reported to the Board of County Commissioners. In December 2010, the Board sent Bird a letter expressing several elected officials’ concerns regarding their working relationship with the Human Resources Department. The letter identified four issues the elected officials wanted Bird to address: 3  Improving the transparency of the hiring process;  Ensuring that engagement in preferential hiring practices is not occurring;  Aligning personnel policies with established procedures; and  Seeking a more collaborative approach to problem-solving. Board members also met with Bird individually to discuss how they could improve their working relationship with her. ¶5 In October 2012, a group of department heads—which Bird helped to organize— wrote a letter to the Board requesting to meet and discuss various issues they had regarding the “appearance of unfair, disparate, and unequal treatment regarding merit and market adjustments” to compensation. The Board declined to meet with the department heads as a group given that the department heads “represent[ed] six different departments, each having a diverse range of responsibilities, job descriptions, budgets, number of subordinates, educational backgrounds, training, experience, and longevity with the County.” The Board instead offered to meet with them individually to evaluate their compensation. In response, these department heads took “a unanimous vote of ‘no confidence’” regarding two of the three Board members. Shortly after the “no confidence” vote, two other department heads informed the County Attorney of their concern that the group had leaked confidential employee information to the media. The County Attorney recommended that the Board conduct an investigation into the allegations. 4 ¶6 On October 26, 2012, the County placed Bird on administrative leave while it investigated allegations that she used public time and resources to organize support for one of the Commissioner’s election opponents, disclosed confidential employment information, and disclosed or used confidential information to further her personal economic interests. Upon conclusion of the investigation, the County sent Bird a “due process” letter that provided detailed information regarding the results of the investigation, notified her of additional allegations that were investigated, and advised her of potential disciplinary actions. Bird responded in writing, denying the allegations. ¶7 On November 27, 2012, the County sent Bird a termination letter signed by two of the three Board members. The six-page termination letter addressed Bird’s response to the “due process” letter and further detailed the reasons for her discharge. The reasons included: use of public time and resources for political purposes, disclosure of confidential employee information, use and disclosure of confidential information to further her own economic interests, improper management of staff, implementation of policies without the Board’s formal approval, inconsistent implementation of informal policies, failure to update the Policy and Procedures Manual, and failure to understand key aspects of her position. ¶8 A year later, Bird filed a complaint against the County pursuant to the Wrongful Discharge from Employment Act. The County moved for summary judgment. The District Court concluded that, as Human Resources Director, Bird held a sensitive 5 managerial position. It held that the County had good cause to terminate her. The court therefore granted the County’s motion and entered judgment in its favor. Bird appeals. STANDARDS OF REVIEW ¶9 We review summary judgment rulings de novo, applying the standards set forth in M. R. Civ. P. 56(c)(3). Moe v. Butte-Silver Bow Cnty., 2016 MT 103, ¶ 14, 383 Mont. 297, 371 P.3d 415. Summary judgment is appropriate when the moving party demonstrates both the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. M. R. Civ. P. 56(c)(3); Moe, ¶ 14. Once the moving party has met its burden, the opposing party must present material and substantial evidence to raise a genuine issue of material fact. McConkey v. Flathead Elec. Coop., 2005 MT 334, ¶ 19, 330 Mont. 48, 125 P.3d 1121. We will draw all reasonable inferences from the offered evidence in favor of the party opposing summary judgment; but conclusory statements, speculative assertions, and mere denials are insufficient to defeat a motion for summary judgment. Moe, ¶ 14. We review a district court’s conclusions of law to determine whether they are correct. Moe, ¶ 14. DISCUSSION ¶10 Whether the District Court erred in ruling on summary judgment that the County had good cause to terminate Bird’s employment. ¶11 The Wrongful Discharge from Employment Act provides, in pertinent part, that “[a] discharge is wrongful . . . if . . . the discharge was not for good cause.” Section 39-2-904(1), MCA. The Act defines “good cause” as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the 6 employer’s operation, or other legitimate business reason.” Section 39-2-903(5), MCA. A legitimate business reason is a reason “that is not false, whimsical, arbitrary, or capricious, and one that must have some logical relationship to the needs of the business.” Davis v. State, 2015 MT 264, ¶ 10, 381 Mont. 59, 357 P.3d 320. After an employer presents evidence showing good cause for the discharge, the employee must present evidence establishing either that “the given reason for the discharge is not good cause in and of itself, or that the given reason is a pretext and not the honest reason for the discharge.” Becker v. Rosebud Operating Servs., 2008 MT 285, ¶ 24, 345 Mont. 368, 191 P.3d 435 (citation and internal quotes omitted). Summary judgment is appropriate in wrongful discharge actions when “the undisputed facts show good cause for discharge from employment.” Moe, ¶ 50 (citing Davis, ¶ 14; Becker, ¶ 30). ¶12 An employer has the right “to exercise discretion over whom it will employ and keep in employment.” Sullivan v. Cont’l Constr. of Mont., LLC, 2013 MT 106, ¶ 18, 370 Mont. 8, 299 P.3d 832 (citation and internal quotations omitted). To give effect to this right, we have warned against the courts becoming “involved in the day-to-day employment decisions of a business regarding its management.” Sullivan, ¶ 18. Thus, we have held repeatedly that “[e]mployers have the broadest discretion when dealing with managerial employees.” Moe, ¶ 54; accord Baumgart v. State, 2014 MT 194, ¶ 39, 376 Mont. 1, 332 P.3d 225; Sullivan, ¶ 18; McConkey, ¶ 26; Buck v. Billings Mont. Chevrolet, 248 Mont. 276, 283, 811 P.2d 537, 541 (1991). In determining whether an employee occupies a managerial position, we consider factors such as the employee’s 7 responsibilities in running the organization’s day-to-day operations, the employee’s discretion in undertaking those responsibilities, the level of trust placed in the employee, and the nature of the relationship between the employee and her superiors. Baumgart, ¶ 39; Sullivan, ¶¶ 24-25; McConkey, ¶¶ 30-31; Buck, 248 Mont. at 282-83, 811 P.2d at 540-41. ¶13 The District Court noted that “[m]ost of Bird’s summary judgment response focuses on whether she is a managerial employee under Sullivan.” The court ruled that Bird held a managerial position, stating that “Bird directed and administered human resource management services for one of Montana’s largest county governments.” The court found that Bird handled such duties as hiring, discipline and termination of employees; compliance with state and federal employment laws; collective bargaining; labor relations; employee orientation; training and development; compensation; employee benefits; job analysis and evaluation; payroll procedures, operations, and requirements; workers compensation; personnel investigations; and safety and risk management. Based on these duties, the court concluded, “It is clear that Bird occupied a ‘sensitive managerial or confidential position . . . requir[ing] the exercise of broad discretion.’” (Quoting Sullivan, ¶ 21.) The court thus held that “the County is entitled to greater deference in its decision to terminate Bird.” ¶14 On appeal, Bird argues that the District Court’s analysis regarding whether she held a managerial position “appears to be based on . . . Bird’s title, rather than her actual function within [the] County and her level of discretion in relation to the Board.” She asserts that “[s]he supervised only four employees and did not manage a large budget,” 8 and that “[s]he was also closely supervised by the Board . . . and the County Attorney.” But Bird does not challenge any of the court’s specific findings describing her duties as Human Resources Director. The number of people she directly supervised and the amount of money allocated to her department are not the only defining features of her position. As the person in charge of human services, Bird was a key player in the management team, entrusted with confidential employee information and counted on to keep the workplace running smoothly. The head of human services plays an integral role in overseeing and addressing the needs of an organization. Bird’s conclusory statements are insufficient to overcome the District Court’s conclusion on summary judgment that she was a managerial employee. See Moe, ¶ 14. Accordingly, we conclude that the District Court correctly determined that the County was entitled to greater discretion in its decision to terminate Bird. ¶15 Of course, the County’s “broad discretion in handling managerial employees is not absolute.” Moe, ¶ 57. The District Court found that the County had good cause because it “terminated Bird for failing to perform her job duties, insubordination, use of public property for private purposes, and disrespect to other employees.” These reasons, the court determined, qualified as legitimate business reasons. The court thus concluded that Bird bore the burden to show that the County’s stated reasons were pretextual in order to defeat summary judgment. ¶16 The court found “no evidence that [the] County’s reasons for [Bird’s] termination are pretextual or dishonest.” The court recognized Bird’s assertions that the need for 9 operations manual revisions existed before her employment and that no other department head who signed the “no confidence” letter was disciplined. The court concluded, however, that neither of these assertions, “if true, establish pretext.” The District Court held that Bird failed to establish that the County lacked good cause to terminate her and accordingly granted the County summary judgment. ¶17 Bird cites the following evidence to support her contention that the District Court ignored material facts on the issue of good cause: that in her four-year tenure as Human Resources Director, she never had a performance-based warning, write-up, or reprimand; that another employee took responsibility for disclosing some of the confidential employee information she was accused of disclosing; and that one of the Board members did not sign her termination letter and testified during his deposition that he believed that she should not have been fired. Bird then asserts, “Whether there was any truth to each of the proffered reasons for firing [her], as set forth in the Termination Letter, is also disputed,” and whether the County’s reasons for terminating her were true, “and not merely pretext, is also disputed.” She asserts that a jury reasonably could conclude that the County did not have good cause for firing her based, in part, on “the parties’ different characterizations of the evidence.” Finally, she relies on Moe to assert that she “raised sufficient factual disputes that would support a conclusion that the reason for her discharge was not for good cause in and of itself.” ¶18 We held in Moe that the employee presented sufficient evidence to raise a triable issue of fact regarding good cause because she “submitted a detailed written response to 10 the [employer’s fact-finding investigative] report in which she took issue with nearly all of the allegations against her.” Moe, ¶ 59. After analyzing the evidence, we concluded that the employee “presented exhaustive responses to the allegations against her.” Moe, ¶ 62. Because of the substantial evidence refuting the employer’s assertions, we were “unable to conclude that the facts that are undisputed are sufficient to establish good cause.” Moe, ¶ 63. ¶19 We are unpersuaded by Bird’s reliance on Moe. For starters, the employee in Moe had only a short time to rectify the problems her superiors identified in her performance before she was terminated. Moe, ¶ 61. Here, the Board brought to Bird’s attention the need to improve her working relationships nearly two years before she was terminated. True, like the employee in Moe, Bird submitted a written response to the County’s due process letter taking issue with the allegations against her. Unlike the employee’s response in Moe, however, the majority of Bird’s responses amount to “conclusory statements, speculative assertions, and mere denials.” Moe, ¶ 63 (citation and internal quotes omitted). For example, in response to the County’s allegation that she disclosed confidential information regarding an employee’s pay, Bird responded that she had “not breached any confidential information.” She explained that because the employee had discussed the information, it was no longer confidential. But Bird did not deny publicly disclosing that the employee was considered for a sizeable reduction in pay. Her response demonstrated a failure to appreciate that, as Human Resources Director, she had a responsibility to maintain trust in her ability to handle sensitive personnel matters. In 11 response to the allegation that she failed to update the Policy and Procedures Manual, she simply asserted that she was not directed to do so, that a “complete re-write was not provided to me,” and that the groups that provided updates to the manual did not do so in the correct format. Bird similarly minimized the County’s allegation that all of her Human Resources employees expressed fear that she would retaliate against them by responding that the allegation was “absurd” and that “she truly [didn’t] believe it.” ¶20 Significantly, her responses corroborated other allegations against her. She admitted to calling her own employees “bitch” and “dumb-ass.” She also demonstrated a lack of understanding of general employment and labor law concepts. For example, she stood by her “half-hour rule,” under which she and other managers claimed that if they worked at least one-half hour from home on a day where they were initially planning to use sick or vacation leave, they could instead be credited for having worked a full eight- hour day. ¶21 Bird’s briefing on the County’s summary judgment motion and on appeal is similarly unpersuasive. Her assertion that she never had a performance-based warning, write-up, or reprimand does not, without more, raise an issue of fact as to whether she was discharged for good cause. See Baumgart, ¶¶ 29, 39 (concluding that an employer had good cause to discharge an employee even though the employee had “exemplary performance evaluations”). She also fails to address the December 2010 letter the Board sent her and the meetings individual Board members had with her to express concerns regarding their working relationship with her. The fact that one Board member did not 12 agree with the decision to terminate Bird does not mean that the County lacked good cause for its decision. See Sullivan, ¶ 27 (concluding that the “fact that not every [company] employee complained about [the employee] failed to undermine the validity of” the employer’s reasons for discharging the employee). The Dissent’s emphasis on one Board member’s disagreement with the decision to terminate Bird fails to recognize that county commissions make decisions every day on two-to-one votes. Dissent, ¶¶ 28-29. Bird’s Complaint, naming the Board as the County’s governing body, properly acknowledges that the County acts through its Board, not through individual commissioners. The Board member who disagreed with terminating Bird recognized that the other two Board members had the authority to terminate Bird. Such a disagreement does not create an issue of material fact. See, e.g., Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 27, 361 Mont. 129, 257 P.3d 352 (concluding that “mere disagreement about the interpretation of a fact or facts does not amount to genuine issues of material fact”). Finally, the fact that the Policy and Procedures Manual needed to be updated prior to her employment does not refute that it was ultimately Bird’s responsibility as Human Resources Director to update it. And Bird does not deny that her replacement updated the manual within a relatively short time of being on the job. ¶22 Outside of these assertions, Bird simply proclaims that she disputes the County’s “proffered reasons for firing [her],” that she disputes whether they “were the true reasons for firing” her, and that the parties characterize the evidence differently. The County, however, presented specific evidence to show the reasons the Board decided to terminate 13 her. The County submitted the depositions of two Board members and another County employee, the affidavit of one of the deputy County attorneys who investigated the allegations against Bird, and the various letters sent by the parties. As part of the investigation into the allegations, the County Attorney’s office interviewed the five other department heads who co-signed the October 2012 letters to the Board and Bird’s four subordinates in the human resources department. These interviews substantiated the initial allegations against Bird and raised new concerns that led to additional fact-finding. ¶23 Bird, on the other hand, did not present material and substantial evidence that raises a genuine issue of material fact regarding many of the County’s reasons for terminating her. For instance, Bird does not point to evidence that refutes the County’s claims that she improperly managed staff, implemented policies without the Board’s formal approval, and failed to understand key aspects of her position. Nor has she presented evidence that these reasons for terminating her were “false, whimsical, arbitrary or capricious.” Davis, ¶ 10. These are all reasons that have “some logical relationship” to the human services needs of the County and thus are legitimate business reasons for terminating Bird. See Sullivan, ¶¶ 17, 46; Becker, ¶¶ 24-30. The Commission’s loss of trust in its Human Resources Director’s ability to handle sensitive personnel matters, to work collaboratively to resolve workplace concerns, and to handle key aspects of her position in accordance with applicable law and policy is good cause for her termination. Bird’s proffered evidence regarding the other reasons for her termination, and her characterization of that evidence, does “not render summary 14 judgment inappropriate where there are facts not in dispute that provide ‘good cause’ for discharge from employment.” Davis, ¶ 14 (emphasis in original). ¶24 The County presented evidence sufficient to show good cause for terminating Bird. It then became Bird’s burden to present evidence sufficient to defeat the County’s motion for summary judgment. An employer has a “right to exercise [its] considerable discretion in determining whether [a managerial employee] possessed the required proficiencies to perform her job” when the “evidence that supports a non-pretextual reason for [the employee’s] discharge is not disputed.” Baumgart, ¶ 39. As demonstrated above, the summary judgment evidence that Bird does not dispute supports a non-pretextual reason for her termination. Finally, even if Bird was singled out from the group of department heads who submitted letters to the Board, this does not demonstrate pretext. Rather, the letters support the County’s assertion that Bird was unsuited to manage the Human Resources Department. Bird organized a group of department heads to collectively bargain for market pay adjustments. But the County noted in its termination letter that, as Human Resources Director, Bird was “presumably the one person in the group who is knowledgeable about pay and compensation,” and she “fail[ed] to understand the basic principle that management officials have no legal authority to bargain collectively.” Further, the “no confidence” letter that Bird signed regarding only two of the three Board members also demonstrates a lack of professionalism and an unwillingness to engage in a “more collaborative approach to problem-solving”—an area of improvement identified in the Board’s 2010 letter to Bird. 15 CONCLUSION ¶25 Bird occupied a sensitive managerial position with the County administration, and the Board was entitled to expect her to perform with the trust and sensitivity commensurate with her responsibilities. The County’s determination that Bird was not fulfilling her obligations is entitled to appropriate deference. Sullivan, ¶ 18. It submitted evidence sufficient to meet its initial burden of showing good cause for her termination. Bird failed to respond with material and substantial evidence to raise genuine issues of material fact as to whether the County had legitimate business reasons for discharging her. Accordingly, we conclude that the District Court did not err in granting the County summary judgment on Bird’s claim that the County terminated her employment without good cause. ¶26 The District Court’s judgment is affirmed. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE Justice James Jeremiah Shea, dissenting. ¶27 The Cascade County Board of Commissioners terminated Stacey Bird from her position as the County’s Human Resources Director on a two-to-one vote. The dissenting 16 Commissioner testified that he did not believe termination was warranted because, after reviewing the charges against Bird, and her responses to those charges, he found her responses to be “logical” and characterized the situation as “kind of a he said / she said on some of these things, [that] wasn’t really definitive.” It seems incongruous to say the least, therefore, that after drawing all reasonable inferences in Bird’s favor, those same “he said / she said” allegations that were not “really definitive,” such that one of the three individuals responsible for deciding Bird’s fate concluded she should not be terminated, have in this Court’s view constituted a complete absence of material fact justifying Bird’s termination without even a jury trial. ¶28 The Court dismisses the fact that one of the three individuals who were responsible for making the decision to terminate Bird did not think she should be terminated by comparing this case to Sullivan. Opinion, ¶ 21. This is not exactly an apples–to–apples comparison. In Sullivan, the plaintiff argued that he raised a genuine issue of material fact regarding whether his employer had good cause to terminate his employment because not every employee complained about his performance. Sullivan, ¶ 27. Arguing issues of material fact because of a lack of unanimity among all of your subordinates and co-workers that you were bad at your job is hardly the equivalent of a two-to-one vote among the superiors responsible for terminating your employment. ¶29 The Court contends that this Dissent fails to recognize that county commissions make decisions every day on two-to-one votes, and then illustrates its point with yet another inapt citation to the general proposition that “mere disagreement about the 17 interpretation of a fact or facts does not amount to genuine issues of material fact.” Opinion, ¶ 21 (citing Ternes, ¶ 27). Yet what the Court apparently fails to recognize is the obvious and fundamental difference between a mere disagreement between opposing parties about the interpretation of a fact or facts, and a disagreement among those responsible for making the decision to discharge an employee regarding the ultimate decision to discharge. One expects opposing parties to disagree—that is, after all, what makes them opposing. However, the dissenting Commissioner’s opinion that Bird should not have been discharged was not a “mere disagreement about the interpretation of a fact or facts” between opposing parties; it was effectively an admission by a party opponent. Is this alone sufficient to guarantee Bird’s success at trial? Of course not. It is, however, sufficient—when considered with the other circumstances of Bird’s discharge—to survive summary judgment. ¶30 Aside from the affirmative declaration of one of the three Commissioners that Bird should not have been discharged, equally problematic for me is reconciling the Court’s resolution of this case with our recent decision in Moe. In Moe, we affirmed the District Court’s denial of summary judgment because we concluded there were factual issues that precluded summary judgment in favor of the County. To begin with the facts that distinguish Moe from this case: (1) the plaintiff’s name was Moe, not Bird; (2) the county’s name was Silver Bow, not Cascade. Beyond those two distinguishing facts, the cases become startlingly similar. 18 ¶31 At the time that Moe was placed on administrative leave pending an investigation, she had been the human resources director for Silver Bow County for approximately four years. Moe, ¶¶ 4-5. At the time that Bird was placed on administrative leave pending an investigation, she had been the human resources director for Cascade County for approximately four years. Opinion, ¶¶ 3, 6. The District Court in this case found that the County “terminated Bird for failing to perform her job duties, insubordination, use of public property for private purposes, and disrespect to other employees.” Opinion, ¶ 15. In Moe, the County “terminated Moe’s employment based on her failure to perform her job duties, disruption of County operations, and ‘other legitimate business reasons.’” Moe, ¶ 51. The “other legitimate business reasons” Silver Bow County alleged for Moe’s discharge included: employee complaints regarding Moe’s job performance and behavior, Moe’s unresponsiveness to [Silver Bow County Chief Executive] Vincent’s requests for further communication, Moe’s failure to inform Vincent of potential wage claims—including one in which Moe stood to gain the most significant financial benefit—and Moe’s participation in a conference call in her County office during working hours with an attorney who was representing the employees pursuing potential wage claims against the County. Moe, ¶ 51. ¶32 The Court distinguishes this case from Moe by stating that the employee in Moe “presented exhaustive responses to the allegations against her,” Opinion, ¶ 18 (quoting Moe, ¶ 62), whereas, in the Court’s view, “the majority of Bird’s responses amount to conclusory statements, speculative assertions, and mere denials.” Opinion, ¶ 19 (quoting 19 Moe, ¶ 63) (internal quotation marks omitted). The Court then provides a handful of examples it contends demonstrate the inadequacy of Bird’s response. Opinion, ¶ 19. ¶33 The Court’s first example is Bird’s response to the County’s charge that she disclosed confidential information regarding an employee’s pay. Opinion, ¶ 19. In its due process letter, the County alleged that Bird had access to this private information in her capacity as human resources director and then “disclosed [this] constitutionally protected information.” As the Court notes, Bird responded to this charge by stating that she had not breached any confidential information, because the employee had publicly discussed the information, so it was no longer confidential. Opinion, ¶ 19. This is a curious example of one of Bird’s inadequate responses because, although this Court finds the response inadequate, in its termination letter the County “confirmed [Bird’s] assertion.” Having confirmed Bird’s assertion, the County then moved the goalpost from a charge of “disclos[ing] constitutionally protected information,” to a conviction of being “discourteous and disrespectful, in violation of Personnel Policy Manual paragraph 40.3.” So having successfully refuted the charge of disclosing constitutionally protected information, Bird was found guilty of a different charge, in violation of a Personnel Policy Manual provision that was not cited as a basis for discharge in the now ironically named “due process” letter. Yet this specific violation—that Bird was never afforded the opportunity to respond to—provided part of the basis for her termination. ¶34 Bird prefaced her response to the County’s due process letter with the statement: “I am at a distinct disadvantage by not having access to my manuals and files to provide a 20 comprehensive and thorough response with dates and full and accurate information. I will be providing information to the best of my ability to recall the facts.” With that disadvantage being noted, Bird then proceeded to respond to the County’s allegations, literally paragraph–by–paragraph, over the course of her six-page, single-spaced response. Although this Court found Bird’s response to be inadequate, as noted above the dissenting Commissioner found her responses “logical” and sufficient for him to vote against terminating Bird’s employment. ¶35 Finally, I disagree with the District Court’s conclusion of “no evidence that [the] County’s reasons for [Bird’s] termination are pretextual or dishonest.” Bird was placed on administrative leave and noticed up for an investigation exactly one week after she and the other department heads declined to meet with the Commissioners individually regarding their requested market pay adjustments. Both the due process letter and the termination letter leave little doubt that it was this activity that precipitated the initial action taken against Bird. The three principal allegations against Bird—(1) using public time, facilities, equipment, and personnel in an attempt to influence the outcome of the November 6, 2012 election; (2) disclosing confidential information to the public; and (3) disclosing confidential information acquired in the course of official duties to further her personal economic interests—all are based on the drafting of, and information contained in, the October 12, 2012 and October 19, 2012 letters requesting market pay adjustments. Bird asserted that she was being singled out for discipline to make an example of her, and pointed out that none of the other department heads who signed the letters were subject to 21 discipline. While the fact that none of the other department heads were subject to discipline is not dispositive that Bird was singled out, it does give rise to a reasonable inference that the letters, in and of themselves, did not provide a basis for discharge; otherwise, all the signatories would have been subject to the same disciplinary action as Bird, unless the basis for the action against her was “false, whimsical, arbitrary, or capricious.” See Davis, ¶ 10. This then requires scrutiny of the three stated bases that are ostensibly unique to Bird’s conduct relative to the creation and distribution of the two letters. ¶36 As to the first alleged basis—using public time, facilities, equipment, and personnel in an attempt to influence the outcome of the November 6, 2012 election—the two commissioners who voted for Bird’s termination acknowledged that the October 12 and October 19 letters were created during off-duty hours. They further acknowledged Bird’s response that she “and the other Department Heads worked to ensure that the use of e-mail was a ‘personal limited use,’ which is allowed by policy.” While conceding that “County policy allows the limited use of e-mail for personal use,” the Commissioners pointed out that County policy does not allow the use of computer systems for campaign purposes, and they asserted this was the real motivation for drafting the letters, based on their subjective credibility findings of Bird and other witnesses interviewed on the subject, from which they concluded, “that [Bird’s] response is not credible.” While it is possible that Bird and the other County department heads who signed the October 12 and October 19 letters were motivated by a grand design to 22 influence the November 6, 2012 election, as the two Commissioners subjectively concluded, is there not at least an equal possibility that Bird’s request for a pay raise was just that—a request for a pay raise? Sure, I guess Bird’s actions could have all been part of some grand “October Surprise” conspiracy, but is there not at least a reasonable inference that Bird is one of those wacky employees who just wanted to make more money? Far more troubling than the Court’s inclination to hear hoofbeats and think of zebras, though, is the acceptance of one party’s subjective finding that the opposing party is not credible as being sufficient to establish an absence of material fact. ¶37 Regarding the second and third principal allegations—disclosing confidential information to the public and disclosing confidential information acquired in the course of official duties to further Bird’s personal economic interests—as noted above, Dissent, ¶ 33, the County morphed those allegations into a conclusion that Bird was “discourteous and disrespectful, in violation of Personnel Policy Manual paragraph 40.3.” Aside from the obvious due process implications of basing a discharge on an alleged violation to which an employee was never afforded the opportunity to respond, such a malleable basis for discipline should at least give rise to an inference that the originally stated basis for discharge was pretextual. ¶38 The County levels several other allegations against Bird that it contends arose “[i]n the course of” reviewing the three principal allegations. These are: improper management of staff; implementing policies without formal approval or, if approved, not implementing them consistently; and failure to understand key aspects of her position as 23 human resources director. In sustaining these allegations against Bird, the County again largely relied on the subjective credibility determinations of the two Commissioners who voted for Bird’s discharge. For example, regarding the allegation that Bird mismanaged her staff, she responded: “I find this [allegation] absurd and truly don’t believe it.” Bird then provided examples of her staff’s statements and conduct that she contended belied the allegation. In the termination letter, the two Commissioners sustained the allegation by stating at the outset: “[Y]ou ‘truly don’t believe it.’ However, we do.” The two Commissioners then noted that they “find credible” an unidentified employee’s report concerning a statement Bird allegedly made about a third employee. This again is what caused the dissenting Commissioner to find that the situation was a “he said / she said” but what this Court concludes to be an absence of material fact. ¶39 Finally, the Court concludes that “even if Bird was singled out from the group of department heads who submitted letters to the Board, this does not demonstrate pretext.” Opinion, ¶ 24. The Court arrives at this conclusion because it characterizes the two letters, signed by the six department heads, as organizing a collective bargaining unit, which supported the County’s assertion that Bird was unsuited for her job because she should have understood this was not allowed. Opinion, ¶ 24. To be clear, this “collective bargaining” process commenced with a letter that begins: “This is being respectfully submitted in accordance with Cascade County Policy Section 40.6 Problem Solving Process, bringing our problems and concerns to management.” The letter then concludes by requesting a meeting with the Commissioners to discuss why two department heads 24 received pay raises while six others did not. In other words, these six department heads requested a sit-down, pursuant to Cascade County policy, to discuss what they perceived as disparate treatment in their ranks. This was not Bird standing on a table in the commission chambers, holding up a piece of cardboard with “UNION” scrawled across it.1 Did Bird’s activities demonstrate a “fail[ure] to understand the basic principle that management officials have no legal authority to bargain collectively,” justifying Bird’s termination, as this Court concludes? Opinion, ¶ 24. Or has the County mischaracterized Bird’s activity as a pretext for her termination? That might have been an interesting question for a jury. ¶40 Finally, the Court concludes that the “no confidence” letter that Bird signed regarding only two of the three Board members also demonstrates a lack of professionalism and an unwillingness to engage in a “more collaborative approach to problem-solving.” Opinion, ¶ 24. This is a troubling conclusion, because it appears to endorse the idea that a public employee who criticizes an elected official could be subject to discipline, and even termination, based on the premise that the employee was unprofessional and lacked a “more collaborative approach to problem-solving.” I trust the Court is not suggesting that a public employee, even a department head, forfeits her right to engage in public discourse by virtue of her employment. Equally troubling is the Court’s failure to recognize that the two Board members who were the subject of the “no confidence” vote were the same two Board members who voted to terminate Bird’s 1 Norma Rae (20th Century Fox 1979). 25 employment. This is not to suggest that these two Board members were, in fact, motivated by the no confidence vote to terminate Bird’s employment, merely that a reasonable inference can be drawn from this fact that the termination was pretextual. ¶41 There is little question that the County’s initial action against Bird was precipitated by the letters, signed by her and the other department heads, seeking an increase in pay. Regardless of what precipitated the County’s action against Bird, I agree that there is a case to be made that Bird’s performance as human resources director was deficient in some respects. Regardless of these performance issues, however, there is at least a reasonable inference that if Bird had never attempted to get a raise, she would still be working as Cascade County’s human resources director, and that her termination was pretextual. Irrespective of the pretext issue, there also is a legitimate question as to whether Bird’s performance warranted termination or, as the dissenting Commissioner testified, some lower level of discipline. The ultimate question of whether Bird’s discharge was motivated by, or merely precipitated by, her attempts to get a pay raise is a question for a jury to decide. It is not a question that is susceptible to summary disposition. Therefore I dissent. /S/ JAMES JEREMIAH SHEA	December 27, 2016
a72e7e03-0865-4149-ba24-cc3d01f36b29	Associated Dermatology & Skin Cancer Clinic of Helena, P.C. Profit Sharing & Trust Benefit of Stephen D. Behlmer, M.D. v. Fitte	2016 MT 349	DA 16-0103	Montana	Montana Supreme Court	DA 16-0103 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 349 ASSOCIATED DERMATOLOGY AND SKIN CANCER CLINIC OF HELENA, P.C. PROFIT SHARING PLAN AND TRUST FOR THE BENEFIT OF STEPHEN D. BEHLMER, M.D., Plaintiff and Appellant, v. ROBERT S. FITTE, Defendant and Appellee. ______________________________ KEVIN DETIENNE AS PERSONAL REPRESENTATIVE OF THE ESTATE OF VIBEKE B. DETIENNE, KEVIN DETIENNE AS TRUSTEE OF THE VIBEKE DETIENNE LIVING TRUST, AND KEVIN DETIENNE, INDIVIDUALLY, Plaintiffs and Appellants, v. ROBERT S. FITTE, Defendant. _______________________________ MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, Joined Party. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDV-2013-690 Honorable Mike Menahan, Presiding Judge 12/28/2016 Case Number: DA 16-0103 2 COUNSEL OF RECORD: For Appellants: Erik B. Thueson, Thueson Law Office, Helena, Montana Scott L. Peterson, Morrison, Sherwood, Wilson & Deola, PLLP, Helena, Montana (Attorneys for Associated Dermatology) Thomas A. Budewitz, Attorney at Law, Townsend, Montana (Attorney for Kevin DeTienne) For Appellee: Curt Drake, Patricia H. Klanke, Drake Law Firm, P.C., Helena, Montana (Attorneys for Robert S. Fitte) Randall G. Nelson, Jared S. Dahle, Nelson & Dahle, P.C., Billings, Montana Martha Sheehy, Sheehy Law Firm, Billings, Montana (Attorneys for Joined Party Mountain West Farm Bureau) Submitted on Briefs: October 12, 2016 Decided: December 28, 2016 Filed: __________________________________________ Clerk 3 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 This is an appeal from an order granting summary judgment in favor of Appellee Robert S. Fitte (Fitte) and Joined Party Mountain West Farm Bureau Mutual Insurance Company (Mountain West). Appellants Associated Dermatology and Skin Cancer Clinic of Helena, P.C. Profit Sharing and Trust Benefit of Stephen D. Behlmer, M.D. (Behlmer) and Kevin DeTienne as Personal Representative of the Estate of Vibeke B. DeTienne, Kevin DeTienne as Trustee of Vibeke B. DeTienne Living Trust, and Kevin DeTienne, Individually (DeTienne) attempted to execute judgments obtained against Fitte in their respective underlying lawsuits by attaching the proceeds of a commercial liability policy issued to Fitte by Mountain West. Mountain West moved to deposit the proceeds of the commercial policy into an existing interpleader action following a determination in a separate declaratory proceeding in federal court that the commercial policy covered Fitte’s actions. The underlying proceedings filed by Behlmer and DeTienne against Fitte were consolidated and the District Court considered the question of whether Behlmer and DeTienne were entitled to execute judgments secured outside the pending interpleader action and attach the proceeds of the commercial policy. The District Court granted summary judgment in favor of Fitte and Mountain West, discharged the writs of execution against Fitte and Mountain West, and stayed their execution until the interpleader court could apportion the funds. We affirm. ¶2 We restate the dispositive issues as follows: 1. Whether the District Court correctly concluded that the proceeds from the commercial policy must be distributed through the interpleader. 4 2. Whether deposit of funds is required to establish the interpleader court’s jurisdiction under M. R. Civ. P. 22. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Fitte, an insured of Mountain West, was burning trees damaged by beetle kill near his driveway on June 23, 2012. Fitte was concerned the trees would fall and damage his vehicles, including the truck Fitte used for his residential remodeling business operated from his home. The fire got out of control and burned a substantial area of the Scratch Gravel Hills near Helena, Montana, affecting approximately thirty-five of Fitte’s neighbors. Many properties and vehicles were damaged or destroyed by what has become known as the Corral Fire. ¶4 On January 2, 2013, Behlmer filed a complaint against Fitte for damages to its property. On January 31, 2013, DeTienne filed its complaint against Fitte.1 Fitte had three insurance policies with Mountain West: a personal liability policy with a limit of $300,000; a commercial general liability policy covering Fitte’s business with a limit of $1,000,000; and an automobile liability policy with a limit of $500,000.2 Mountain West accepted coverage under the personal policy, but disputed coverage under the commercial policy and maintained that Fitte was not engaged in the business of siding or contracting at the time of the fire. On February 25, 2013, Mountain West filed a declaratory action in federal court to resolve the coverage issue. ¶5 Realizing the extent of damage and the potential number of claimants affected, on March 25, 2013, Mountain West filed an interpleader action in the First Judicial District 1 The cases were subsequently consolidated on January 6, 2014. 2 The automobile policy is not at issue in this case. 5 Court. Not wishing to require each claimant to pay an appearance fee or retain counsel, particularly since informal resolution of claims remained a possibility, Mountain West named Fitte as the nominal defendant. On May 31, 2013, Mountain West moved to deposit the $300,000 personal liability limit with the interpleader court. However, Mountain West explained in its motion that depositing the commercial policy proceeds of $1,000,000 with the interpleader court would require it to give up its right to litigate the coverage issue in federal court. Mountain West maintained that depositing the policy limits in the state interpleader court would deprive the federal court of jurisdiction over the res as the funds were the subject matter and substance of the dispute in federal court. Nonetheless, Mountain West represented that “[c]ertainly, if a court of last resort adjudicated the business policy as applicable to the Fitte loss, then Mountain West would deposit the funds in [the interpleader] action (if the parties were unable to reach agreement as to apportionment of the funds), but it cannot be asked or expected to do so until an adverse final judgment were entered in the federal court.” DeTienne intervened in the interpleader action and argued that Mountain West named the wrong party and should have named each of the claimants. DeTienne consented, however, to deposit of the $300,000 in the interpleader on condition that the deposit would not be construed as a release of Mountain West from its potential liability under all the policies. The court ordered that the $300,000 be deposited in the interpleader action; that Mountain West “shall not dispense the funds without further notice to all landowners, who shall be given an opportunity to be heard and/or appear;” and that all parties’ rights and claims “shall be fully preserved, unaffected, and not prejudiced by the deposit of the funds.” 6 ¶6 Meanwhile, Behlmer, DeTienne and Fitte had been negotiating regarding the underlying lawsuits. Fitte admitted liability in both proceedings and, with respect to Behlmer, stipulated to a judgment which was entered on July 12, 2013. Behlmer and Fitte agreed to arbitrate damages and, in accordance with the arbitration results, the court issued a judgment in favor of Behlmer against Fitte for $500,000. As part of the arbitration, Behlmer agreed it would satisfy its judgment only through Fitte’s insurance and not against Fitte personally. In the DeTienne lawsuit, a confessed judgment against Fitte was entered for $1.9 million on October 16, 2013. DeTienne also agreed not to execute against Fitte personally. ¶7 On August 19, 2013, the federal court resolved the coverage dispute and held that the commercial policy covered the fire damage. Thereafter, Behlmer filed a notice of levy and attachment against the proceeds of the commercial policy on September 30, 2013; DeTienne filed a writ of execution against the proceeds of the commercial policy on November 14, 2013. Mountain West moved to deposit the $1,000,000 commercial policy limits in the interpleader court and to discharge both attachments filed by Behlmer and DeTienne. ¶8 In a consolidation order stipulated to by the parties, the writs of execution were withdrawn and Mountain West’s motions to discharge the writs were deemed moot. At the request of the District Court, the parties filed cross-motions for summary judgment on the issue of whether the $1,000,000 commercial policy should be apportioned through the interpleader action or should be applied to satisfy the Behlmer and DeTienne judgments apart from the interpleader proceedings. In its order granting summary judgment to Fitte 7 and Mountain West, the District Court reasoned that Mountain West filed its complaint in interpleader prior to Behlmer and DeTienne having secured judgments against Fitte. At the time Behlmer and DeTienne secured their judgments, the interpleader action had been initiated even though the disputed funds of $1,000,000 had not been deposited. The District Court recognized that an action for interpleader under Montana’s law did not have a deposit requirement and concluded that the date upon which the interpleader action is deemed initiated “can be only the date the action was filed.” The District Court determined that the complaint in interpleader, having been filed on March 25, 2013, preceded entry of the Behlmer and DeTienne judgments and that, accordingly, the proceeds belonged to the interpleader court and were neither Fitte’s property nor a debt owed to him. The District Court ruled that the insurance funds were not subject to attachment and execution by Behlmer or DeTienne outside of the interpleader action. STANDARD OF REVIEW ¶9 This Court reviews an order granting summary judgment de novo, applying the same M. R. Civ. P. 56(c) criteria as the district court. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. This Court reviews a district court’s conclusions of law de novo. Newbury v. State Farm Fire & Cas. Ins. Co., 2008 MT 156, ¶¶ 14-15, 343 Mont. 283, 184 P.3d 1021. 8 DISCUSSION ¶10 1. Whether the District Court correctly concluded that the proceeds from the commercial policy must be distributed through the interpleader. ¶11 Behlmer and DeTienne argue that each of their judgments obtained in the underlying proceedings became a lien against the commercial policy limits which was enforceable pursuant to § 25-9-301(2), MCA, from the time the judgment was docketed. Behlmer and DeTienne maintain that because their judgments were obtained prior to the deposit of the commercial proceeds into the interpleader court, their judgments should have priority over other competing claims to the insurance proceeds. Behlmer and DeTienne ask that this Court hold they have secured interests in the $1,000,000 that was deposited with the interpleader court and that we direct the interpleader court to recognize their priorities in apportioning the interpleaded fund. Alternatively, Behlmer and DeTienne argue that Mountain West, having failed to honor the writs, be held “personally” liable for the lien amounts pursuant to § 27-18-407, MCA. ¶12 Fitte and Mountain West maintain that the purpose of interpleader is to determine the priority of claims to the insurance proceeds available to cover the Corral Fire. They contend that two claimants having obtained judgments is not a bar to interpleader as claims that have been reduced to judgment are a common subject of interpleader. Fitte and Mountain West argue that the subject of the interpleader was “all available insurance proceeds,” regardless of whether those proceeds had been deposited. Finally, Mountain West argues that insurance policy proceeds are not personal property subject to execution pursuant to § 25-13-501, MCA. 9 ¶13 Interpleader is an action “‘[r]ooted in equity, [and] a handy tool to protect a stakeholder from multiple liability and the vexation of defending multiple claims to the same fund.’” 6247 Atlas Corp. v. Marine Ins. Co., 155 F.R.D. 454, 460-61 (1994) (quoting Washington Elec. Coop., Inc. v. Paterson, Walker & Pratt, P.C., 985 F.2d 677, 679 (2d Cir. 1993)). See generally, 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1702, 533-37 (3d ed. 2001); Maryland Casualty Company v. Glassell-Taylor & Robinson, 156 F.2d 519, 523-24 (5th Cir. 1946). To this end, the interpleader rule must be liberally construed to protect the stakeholder from the expense of defending twice and to protect against double liability. New York Life Insurance Company v. Welch, 297 F.2d 787, 790 (D.C. Cir. 1961). The fact that an interpleaded claimant has a judgment against the stake does not defeat the right to interplead. See Matter of Bohart, 743 F.2d 313, 325 (5th Cir. 1984), citing 3A Moore’s Federal Practice ¶ 22.08[1] n.4 (1984). Accordingly, claims that have been reduced to judgment are common subjects of interpleader. See, e.g., Treinies v. Sunshine Mining Co., 308 U.S. 66, 68, 60 S. Ct. 44, 46 (1939) (“The occasion for the interpleader was the existence of inconsistent judgments as to the ownership of the Sunshine stock.”). The right to maintain interpleader exists even after judgment has been obtained by one of the adverse claimants. Montgomery Ward & Co. v. Fidelity & Deposit Co. of Md., 162 F.2d 264, 268 (7th Cir. 1947). ¶14 In its definitive opinion on the subject of interpleader, State Farm Fire & Cas. Co. v. Tashire, 386 U.S. 523, 87 S. Ct. 1199 (1967), the Supreme Court addressed the question of whether interpleader was available when competing claimants had not had 10 their claims reduced to judgment, concluding that an insurance company was not required to wait until at least two claimants reduced their claims to judgment. The Supreme Court reasoned that “considerations of judicial administration” demonstrate that were an insurance company required to await reduction of claims to judgment, “the first claimant to obtain such a judgment or to negotiate a settlement might appropriate all or a disproportionate slice of the fund before his fellow claimants were able to establish their claims.” Tashire, 386 U.S. at 533. The Court observed that the “difficulties such a rush to judgment may pose for the insurer, and the unfairness which may result to some claimants, were among the principal evils the interpleader device was intended to remedy.” Tashire, 386 U.S. at 533. ¶15 The aforementioned authority construes Fed. R. Civ. P. 22 and, at times, the federal interpleader statute, 28 U.S.C. § 1335. However, there are differences between the two. “[S]tatutory interpleader relaxes the [federal] diversity jurisdictional requirements in exchange for the somewhat onerous requirement of depositing the stake with the Court.” 6247 Atlas Corp., 155 F.R.D. at 461. Montana’s interpleader rule as set forth in M. R. Civ. P. 22(a) is identical to Fed. R. Civ. P. 22. It is therefore appropriate to look to federal jurisprudence interpreting the counterpart to Montana’s rule. Farmers Union Mut. Ins. Co. v. Bodell, 2008 MT 363, ¶ 21, 346 Mont. 414, 197 P.3d 913. Further, Montana provides clear statutory authority for a court to order any proceeds to be deposited in the interpleader action. Section 25-8-101, MCA, provides: When it is admitted by the pleading or shown upon examination of a party that the party has in the party’s possession or under the party’s control any money or other thing capable of delivery that, being the subject of the 11 litigation, is held by the party as trustee for another party or that belongs or is due to another party, the court may order the money or thing, upon motion, to be deposited in court or delivered to the party upon conditions that may be just, subject to the further direction of the court. ¶16 We agree that Montana’s rule interpleader is an equitable remedial device that exists in order to avoid the unfairness that may result to some claimants who have competing claims to the interpleader res, but who lose the “race to judgment.” We agree, as well, that rule interpleader is an equitable procedure designed to protect against double liability and the expense of defending twice. As part of the continuing inherent authority of the court over its own judgments, the statutory provisions of § 25-8-101, MCA, and pursuant to the equitable power granted by Montana’s rule interpleader, the court has authority to stay any execution of judgment before deciding how to distribute the insurance monies equitably. See Doggett v. Johnson, 82 Mont 21, 29, 265 P. 673, 674 (1928) (Although the funds were already subject to a writ of execution at the time the stakeholder attempted a deposit with the clerk, this Court determined that the stakeholder was entitled to the protection of an interpleader action). Furthermore, the equitable nature of an interpleader action is not inconsistent with Montana’s statutory scheme regarding judgment creditor liens and employment of the rule that first in time is first in right when lien priority is determined. Boris v. Flaherty, 672 N.Y.S.2d 177, 180 (NY 1998). Our decision does not alter Montana’s general rule that, “[o]ther things being equal, different liens upon the same property have priority according to the time of their creation . . .” § 71-3-113, MCA (emphasis added); however, the court has the authority 12 and discretion to utilize the equitable remedial device of interpleader to determine the scope and nature of the interpleader action. ¶17 We also recognize that Mountain West, as an insurer, has a duty pursuant to § 33-18-201(6), MCA, to “attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear.” Mountain West’s complaint for interpleader ensures that all claimants will be treated fairly and that the rights of Fitte, its insured, are fully protected. In seeking to determine whether the commercial policy applied to the fire loss, Mountain West was properly availing itself of the procedure this Court has determined an insurer should utilize. See State Farm Mut. Auto. Ins. Co. v. Freyer, 2013 MT 301, 372 Mont. 191, 312 P.3d 403; Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 28, 321 Mont. 99, 90 P.3d 381 (an insurer who disputes coverage must seek a judicial determination through a declaratory judgment action). Mountain West, as both a stakeholder facing multiple claims and an insurer disputing coverage under its policy, is not required to choose between pursuing a state interpleader action or a declaratory action in federal court regarding coverage.3 ¶18 The status of the claims at the time the interpleader action was established remains the determinative factor. Avant Petroleum, Inc. v. Banque Paribs, 853 F.2d 140, 144, (2 Cir. 1988) (“We conclude that where an interpleader action is brought to have the court determine which of two parties has priority with respect to the interpleader fund, the court should normally determine priority as of the time the fund was created.”); Texaco 3 Mountain West had a right to pursue a judicial determination of coverage in federal court, based upon diversity of citizenship: Mountain West is a resident of Wyoming and the other parties are residents of Montana. 13 Inc. v. Ponsoldt, 118 F.3d 1367, 1370 (9th Cir. 1997) (The purpose of rule interpleader is to resolve competing rights and claims and to determine the priority of the claims at the time the interpleader became viable). Here, the District Court concluded that in the absence of a deposit requirement under Rule 22, the date upon which the interpleader action became viable “can only be the date the action was filed.” Further, as the District Court aptly determined, the subject of the interpleader was always contemplated to be “all available insurance proceeds.” Indeed, DeTienne’s response to Mountain West’s motion to interplead the $300,000 personal policy specifically noted that “[s]trictly applied, [Rule 22(b)(3)] could result in the discharge of the insurer’s liability under all policies, even those whose limits have not been deposited.” DeTienne advised it had “no objection to the deposit of the $300,000 from the homeowner’s policy as long as it is conditioned as the insurer suggests, that the deposit of that $300,000 does not discharge the insurer from liability under any other policy.” As interpleader is an equitable device, it is appropriate for a court to determine the intentions of the parties and the court at the time the interpleader was commenced. Furthermore, Mountain West committed to deposit the commercial policy funds should coverage be established. Mountain West followed through with its representation by moving to deposit the commercial policy funds into the interpleader. ¶19 We conclude the District Court correctly determined that the interpleader action was intended to distribute all available insurance proceeds and that the res, which was the object of the interpleader, was “all available insurance proceeds.” The conclusion reached by the District Court was consistent with its equitable role of determining the 14 intent of the court and parties when the interpleader proceeding was initially filed. The existence of judgments against the insured and issuance of writs of execution against the policy proceeds did not preclude the insurer from interpleading all insurance proceeds for the purpose of apportioning funds equitably and fairly amongst the competing claimants. ¶20 2. Whether deposit of funds is required to establish the interpleader court’s jurisdiction under M. R. Civ. P. 22. ¶21 Behlmer maintains his judgment lien deserves priority because Mountain West did not take steps to interplead the commercial policy limit until after Behlmer secured his judgment and served a notice of levy and attachment. Along similar lines, DeTienne argues that the filing of the interpleader does not create a lien on funds not yet deposited. He maintains, and the Dissent agrees, that it is the date of deposit that identifies the “fund” that makes up the interpleader. Because the writs were served prior to deposit of the policy proceeds, the resulting lien created a legal obligation that Mountain West was required to pay. These positions, however, ignore the significance of Montana’s rule interpleader not having a deposit requirement as a prerequisite for establishing and defining the res. As a result, the date the interpleader became viable must be deemed as the date the interpleader action was actually filed—not the date the commercial policy limits were deposited. ¶22 Although the District Court correctly concluded that the commercial policy proceeds must be distributed through the interpleader, we nevertheless deem it appropriate to address the absence in Montana’s rule interpleader of a deposit requirement. As the District Court noted, this is not a situation where a subsequent 15 interpleader action displaces a perfected security interest, as Behlmer and DeTienne maintain, because the interpleader action was filed before either Behlmer or DeTienne obtained a judgment. ¶23 Since deposit of the funds is not a jurisdictional prerequisite pursuant to M. R. Civ. P. 22, the interpleader funds or res—all insurance proceeds—were subject to the interpleader action when the complaint for interpleader was filed. In contrast to federal statutory interpleader, federal rule interpleader set forth at Fed. R. Civ. P. 22 does not require formal deposit of the interpleader stake or fund, though deposit may be required in the discretion of the court. Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1159 (5th Cir. 1976); Percival Constr. Co. v. Miller & Miller Auctioneers, Inc., 532 F.2d 166, 171 (10 Cir. 1976) (“the entire sum requirement is not present when interpleading under the Rule.”). The District Court correctly observed that “[t]he subsequent deposit of policy proceeds was a procedural step, not a new action.” ¶24 We conclude the res of the interpleader is “all insurance proceeds,” which the interpleader court must equitably and fairly apportion amongst the competing claimants suffering damages from the Corral Fire. The proceeds of the commercial policy limit belonged to the interpleader court once the federal court determined there was coverage. Accordingly, the commercial policy proceeds were bound for the interpleader; they did not belong to Fitte; and they were not subject to attachment and execution by Behlmer or DeTienne. The deposit of the commercial policy proceeds was not required at the time the interpleader proceeding was commenced and commercial policy proceeds 16 subsequently deposited were properly determined to be part of the res of the interpleader action. ¶25 Based on our resolution of issues one and two, it is unnecessary to address the argument of Behlmer and DeTienne that Mountain West be held responsible for the lien amounts pursuant to § 27-18-407, MCA. We similarly find it unnecessary to address Mountain West’s contention that insurance policy proceeds are not personal property subject to execution pursuant to § 25-13-501, MCA. CONCLUSION ¶26 The order of the District Court granting summary judgment in favor of Fitte and Mountain West, discharging the writs of execution filed by Behlmer and DeTienne, and staying further execution of the Behlmer and DeTienne judgments pending apportionment of the interpleader fund is affirmed. The interpleader must perform its function of determining the priority and apportionment of competing claims. The commercial policy limit of $1,000,000 is in possession of the interpleader court pending its determination. /S/ LAURIE McKINNON We Concur: /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE 17 Justice Michael E Wheat, dissenting. ¶27 I respectfully dissent from the majority. I would hold that Mountain West’s untimely attempt to interplead the CGL funds failed because Behlmer and DeTienne had legally established their right and priority to the funds. The following sets out the full timeline of events relevant to this case: ● June 22, 2012—Fitte started a fire on his property that damaged Behlmer and DeTienne’s property. Fitte had two insurance policies with Mountain West: a personal liability/homeowners policy with a limit of $300,000, and a commercial policy with a CGL limit of $1 million, and an automotive limit of $500,000.1 ● January 2, 2013—Behlmer filed a complaint against Fitte in State District Court. ● January 31, 2013—DeTienne filed a complaint against Fitte in State District Court. ● February 25, 2013—Mountain West filed a declaratory judgment action against Fitte in federal district court challenging the CGL coverage under the commercial policy. ● March 25, 2013—While the federal action was pending, Mountain West filed a complaint against Fitte in State District Court to interplead only the homeowners’ policy limits. ● May 31, 2013—Mountain West moved to deposit the $300,000 policy limit with the District Court. DeTienne intervened, arguing that Mountain West should be required to name all interested claimants and that both the personal and commercial CGL policy limits should be interpleaded. Mountain West resisted DeTienne’s efforts. ● July 10, 2013—The District Court granted Mountains West’s motion, and Mountain West deposited $300,000 with the interpleader court. In its order, the court specifically stated that all parties’ rights and claims “shall be fully preserved, unaffected, and not prejudiced by the deposit of the funds.” ● July 12, 2013—Fitte admitted liability with regard to Behlmer’s complaint and agreed to arbitrate Behlmer’s damages. Mountain West elected not to participate. 1 The automotive limit is not at issue in this case. 18 ● August 19, 2013—The federal court ruled that the commercial CGL policy covered the fire. ● September 13, 2013—Behlmer obtained a $500,000 judgment against Fitte based on the arbitration award. ● September 30, 2013—Behlmer obtained a writ of execution and served a notice of levy and attachment of the CGL funds on Mountain West. ● October 16, 2013—DeTienne obtained a $1.9 million judgment against Fitte. ● November 6, 2013—Mountain West moved to deposit the $1 million CGL proceeds in the interpleader court. ● November 14, 2013—DeTienne obtained a writ of execution and, on November 25, 2013, served a notice of levy and attachment of the CGL proceeds on Mountain West. ● January 2, 2014—The State District Court granted Mountain West’s motion to deposit the $1 million in the interpleader court. ● January 6, 2014—Upon the unopposed motion of the plaintiffs, the Behlmer and DeTienne cases were consolidated and Mountain West was joined as a party to the consolidated action.2 ¶28 Based on the undisputed facts outlined above, Behlmer and DeTienne established priority over the CGL funds prior to the deposit of the funds in the interpleader court. As the District Court noted, “insurance proceeds, generally, may be subject to attachment and execution in a garnishment proceeding where a party obtains a judgement against an insured.” See §§ 25-13-402(3), and -501, MCA. Behlmer and DeTienne have judgments 2 Despite the majority’s statement to the contrary, the consolidation order did not result in the withdrawal of the writs of execution. Rather, the District Court determined that it would “not file Mountain West’s motion to discharge the attachment in either action” because the briefing concerning attachment was “premature and thus, improperly filed.” As such, the court ordered the parties to “file cross-motions for summary judgement within 30 days of this order regarding whether the plaintiffs may attach the Mountain West policies and if so, whether this gives their claims priority over all other Corral Fire claimants.” 19 and have served writs of execution on Mountain West. Both parties also served a notice of levy and attachment of the CGL funds. Accordingly, under § 27-18-307, MCA,3 Behlmer and DeTienne’s judgment lien accrued on September 30, 2013, and November 25, 2013, respectively, when the officer charged with executing the writs attached the CGL policy. The judgment lien, in turn, gave Behlmer and DeTienne priority over all other junior claims pursuant to § 71-3-113, MCA.4 ¶29 Moreover, the subsequent interpleading of the CGL funds did not disturb the priority of the claims. It is well established that “[t]he interpleader procedure is not intended to alter substantive rights.” Reliance Nat’l Ins. Co. v. Great Lakes Aviation, Ltd., 430 F.3d 412, 415 (7th Cir. 2005) (citing Sanders v. Armour Fertilizer Works, 292 U.S. 190, 200, 54 S. Ct. 677 (1934); Avant Petroleum, Inc. v. Banque Paribas, 853 F.2d 140, 143 (2d Cir. 1988)). There is also no dispute that “[t]he right to retain a lien until the debt secured thereby is paid is a substantive property right.” James Talcott Constr. v. P & D Land Enters., 261 Mont. 260, 264, 862 P.2d 395 (1993). ¶30 Accordingly, I find the extra-jurisdictional case law Behlmer and DeTienne rely upon persuasive and dispositive. These cases stand for the proposition that the priority of a claim must remain intact and carry over to a subsequent interpleader action if priority is established before an interpleader action is initiated and the funds are deposited with the 3 Under § 27-18-307, MCA, “[a]ll liens by attachment shall accrue at the time the property of the defendant shall be attached by the officer charged with the execution of the writ, in the order in which the writs are levied, and said lien shall not be affected by any subsequent attachment or by any judgment obtained subsequent thereto.” 4 “Other things being equal, different liens upon the same property have priority according to the time of their creation.” Section 71-3-113, MCA. 20 court. See Texaco Inc. v. Ponsoldt, 118 F.3d 1367, 1369-71 (9th Cir. 1997); White v. FDIC, 19 F.3d 249, 252 (5th Cir. 1994); Avant Petroleum, 853 F.2d at 143-44 (2d Cir. 1988). ¶31 In Avant Petroleum, the Second Circuit held that “once an interpleader action is commenced and the property has been deposited with the court . . . it remains appropriate for the court to determine the relative priorities of the claimants as of the time the interpleader fund was deposited with the court.” Avant Petroleum, 853 F.2d at 144 (emphasis added). In Texaco, the Ninth Circuit adopted the reasoning of the Second Circuit and further held that the applicable state law in that case did not alter the rationale that “it makes perfect sense that the [interpleader] action itself cannot be used as a vehicle for further jockeying for claim position. It should just be a straightforward determination of the priority of the claims as they existed at the time the interpleader became viable.” Texaco, 118 F.3d at 1370. The Ninth Circuit based this reasoning on the fact that the state in question, like Montana,5 “employs a rule that first in time is first in right when it determines lien priority.” Texaco, 118 F.3d at 1370. ¶32 Here, the CGL funds did not become viable until the funds were deposited on or after January 2, 2014. As such, Behlmer and DeTienne had a valid, superior interest in the CGL funds when the funds were deposited and they are the rightful owners of the funds. I would hold that Behlmer and DeTienne remain entitled to enforce their respective judgments against Mountain West and that their priority must be respected and maintained in the interpleader action. To hold otherwise, as the majority has, is to ignore 5 See § 71-3-113, MCA. 21 a well-established maxim of our jurisprudence: “The law helps the vigilant before those who sleep on their rights.” Section 1-3-218, MCA. ¶33 In conclusion, it must be noted that Mountain West had control of all the moving parts in this case. If Mountain West was so concerned with the claims of all the parties injured by the fire it could have interpleaded all of the insurance proceeds in one court, subject to its coverage challenges, but it did just the opposite—it withheld the CGL policy proceeds from the interpleader fund to the detriment of all the injured parties it claims to now be helping. When we look behind the “equity” smoke screen being generated in this case we see the levers are being manipulated by Mountain West, not Behlmer and DeTienne. Behlmer and DeTienne had every legal right to do and act as they did. ¶34 For these reasons, I dissent. /S/ MICHAEL E WHEAT Justice Patricia Cotter joins in the Dissent of Justice Michael E Wheat. /S/ PATRICIA COTTER	December 28, 2016
2fb5ab7a-a573-4e2e-a389-c3644a9b956b	Myrick v. Skolrud	2016 MT 341	DA 16-0168	Montana	Montana Supreme Court	DA 16-0168 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 341 APRIL DAWN MYRICK, n/k/a APRIL BLOCK, Petitioner and Appellant, v. JASON ALLAN SKOLRUD, Respondent and Appellee. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Valley, Cause No. DR-04-29 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD: For Appellant: Lindsay A. Lorang, Lorang Law, PC, Havre, Montana For Appellee: Jason Allan Skolrud, self-represented, Clancy, Montana Submitted on Briefs: November 10, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 16-0168 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant April Dawn Myrick, n/k/a April Block (April), appeals the order of the Seventeenth Judicial District Court, Valley County, which reduced the child support obligation of Respondent Jason Allan Skolrud (Jason), from $679 per month to $200 per month. We affirm and address the following issue: Did the District Court err by ordering a reduction in the support obligation for the parties’ child? FACTUAL AND PROCEDURAL BACKGROUND ¶2 This appeal is part of an ongoing parenting and child support proceeding that has continuously been before the District Court since 2004. April and Jason have a minor son together, known in these proceedings as K.A.S. Primary custody, physical time, and child support for K.A.S. have changed several times since 2004. ¶3 On September 3, 2014, April and Jason entered into the current parenting plan, which assigned to April the primary physical custody of K.A.S. The plan provided that “[c]hild support shall be paid as ordered by the Child Support Enforcement Division [(CSED)].” April petitioned CSED for recalculation of the child support obligation between the two parents. The CSED proceeding was limited to recalculating the child support based upon the change in parenting time under the new agreement, and other evidence about the parties’ situation was not considered. CSED issued a final order on June 11, 2015, eliminating April’s $48 monthly support obligation and imposing a $679 monthly support obligation on Jason. Jason was also ordered to pay an arrearage of 3 approximately $2,000 in $104 monthly installments, setting his new child support payment at $783 per month. ¶4 On July 15, 2015, Jason filed a motion for judicial modification of the CSED order. Alleging he lacked sufficient resources to pay $679 per month, Jason requested a reduction to $200 per month. Jason is married and resides near his place of employment with his wife, Angela, and their four children (in addition to K.A.S.). Three of those children are Angela’s that Jason has adopted, and the fourth child is Jason and Angela’s together. Angela has historically contributed between $1,000 and $1,900 per month to the family income from her part-time employment as a nurse, with the specific monthly amount depending upon the medical facility’s need for her services. However, Angela’s 12-year-old son has significant health issues, and the licensed psychologist treating the boy advised her to quit her nursing job, which she did in March of 2015. The District Court found that these health issues were “not likely to change in the immediately foreseeable future.” ¶5 At the hearing on the motion, Jason presented evidence concerning his current income and his family’s monthly household expenses, including mortgage, home utilities, clothing, food, educational expenses, vehicle fuel and maintenance, insurance, and medical bills. Jason testified, and the District Court found, that he and Angela “have had to borrow money from respective family members to assist with meeting their monthly expenses and are making $50.00 per month payments to maintain these loans.” ¶6 The District Court concluded that, while Jason’s child support is correctly calculated to be $679 per month under the CSED guidelines, the “change in 4 circumstances noted herein give good and justifiable reason to vary from those guidelines.” The court determined that, with “budgeting and appropriate adjustment of monthly expenses,” Jason would be able to pay $200 per month in child support. The District Court ordered: Effective July 15, 2015 (the date Jason filed his motion to modify), Jason’s child support obligation to April is reduced to $200.00 per month. Should the health condition of the 12 year old minor child of Jason and Angela change so Angela can obtain either full-time or part-time employment, this reduced child support obligation shall again be reviewed. The District Court ordered that the reduced child support obligation was “contingent upon Jason providing April, not less than annually, with a verified statement (i.e., under oath) generally describing the 12-year-old’s health condition and its impact on Angela’s employability.” STANDARD OF REVIEW ¶7 A district court’s decision on modification of child support is reviewed for an abuse of discretion. In re Marriage of Carter-Scanlon, 2016 MT 190, ¶ 8, 384 Mont. 273, 378 P.3d 1157 (citing In re Marriage of Wilson, 2009 MT 203, ¶ 12, 351 Mont. 204, 210 P.3d 170); Simpson v. Simpson, 2013 MT 22, ¶ 15, 368 Mont. 315, 294 P.3d 1212. A court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Brown v. Brown, 2016 MT 299, ¶ 11, 385 Mont. 369, ___ P.3d ___ (citing In re Marriage of Pearson, 1998 MT 236, ¶ 30, 291 Mont. 101, 965 P.2d 268); Simpson, ¶ 15. 5 DISCUSSION ¶8 Did the District Court err by ordering a reduction in the support obligation for the parties’ child? ¶9 April argues that the District Court erred (1) by concluding there was a change in circumstances, because Jason only testified to a loss of $175 per month in his income and CSED did not use Angela’s income in its child support calculations; and (2) by failing to determine that the reduction was in the child’s best interest under the factors in § 40-4- 212, MCA. ¶10 “In determining child support obligations, a district court must follow the [CSED guidelines] unless clear and convincing evidence demonstrates that their application is unjust or inappropriate in that particular case.” In re Marriage of Frick, 2011 MT 41, ¶ 21, 359 Mont. 296, 249 P.3d 67 (citing § 40-4-204(3)(a), MCA). “Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support [CSED] guidelines . . . .” Section 40-4-204(3), MCA (emphasis added). The amount of support calculated pursuant to the CSED guidelines “is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust . . . to any of the parties or that it is inappropriate in that particular case.” Section 40-4-204(3)(a), MCA. While April cites to the best interest standards in §§ 40-4-212 and -219, MCA, those statutes apply to a court’s determination or modification of a “parenting plan.” Sections 40-4-212(1), 40-4- 219(1), MCA. Modification of child support is addressed in §§ 40-4-204 and -208, 6 MCA. Specifically, when a court is considering the imposition or modification of child support, it is to “determine the child support obligation by applying the standards” set forth in § 40-4-204, MCA, and the CSED guidelines. Section 40-4-204(3)(a), MCA. The statutory standards include, among other factors, “the financial resources of the parents” and “the needs of any person, other than the child, whom either parent is legally obligated to support.” Section 40-4-204(2)(b), (h), MCA. ¶11 Although April argues that Jason testified to a loss of only $175 per month, this argument ignores, as the CSED proceeding likewise ignored, the situation created in Jason’s household by his son’s significant illness, including that this medical condition required Angela to quit her job, which had provided a substantial amount of the family’s monthly income. While the CSED proceeding did not consider Angela’s income, the District Court found that this loss contributed to a budgetary shortfall such that Jason’s income could not meet his household expenses while also paying the CSED-determined support obligation, and that he had to borrow money to meet monthly expenses. The District Court found that, with “budgeting and appropriate adjustment of monthly expenses,” Jason would be able to pay $200 per month in child support. The court also found that April was not always using “in network” medical providers or the Indian Health Service, for which K.A.S. was eligible, to obtain lower cost or free medical services, and ordered April to do so, reasoning that the parties “cannot afford to incur health care expense for the child when that expense could reasonably be covered by insurance or benefits available to the child.” 7 ¶12 Sufficient evidence was presented to support the District Court’s findings and to demonstrate that the CSED-determined obligation would be “unjust . . . to any of the parties or that it is inappropriate in that particular case.” Section 40-4-204(3)(a), MCA. The District Court has presided over this proceeding for over 10 years and was well acquainted with the parties and their circumstances. Its order tied the new monthly obligation to developments regarding care of Jason and Angela’s son, including reporting and future review of the issue. We conclude that the District Court did not abuse its discretion.1 ¶13 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON 1 Although the District Court’s order referenced CSED’s assessment upon Jason of $104 per month for payment of a support arrearage, it is unclear from the order whether the court reduced Jason’s total payment of $783 per month, or reduced only the current guideline calculation of $679 per month, down to $200 per month. We do not reach that issue.	December 27, 2016
f8b623b2-8c67-49a1-9e43-ed7d22cd5338	State v. J. Meacham	2016 MT 334N	DA 16-0174	Montana	Montana Supreme Court	DA 16-0174 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 334N STATE OF MONTANA, Plaintiff and Appellee, v. JESSIE WILLIAM MEACHAM, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2014-298 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana Submitted on Briefs: November 16, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 16-0174 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Jessie Meacham appeals the Fourth Judicial District Court’s order denying his motion to suppress evidence and to dismiss charges relating to his arrest for driving under the influence. We affirm.1 ¶3 Missoula County Deputy Sheriff Rebecca Birket observed Meacham’s vehicle stuck in a snowbank behind a local saloon on February 27, 2014, at around 10:30 p.m. She approached Meacham’s vehicle to see if she could render aid. Meacham initially avoided eye contact with Deputy Birket and stared blankly straight ahead. Deputy Birket testified that she got out of her patrol car and approached to within approximately three feet of Meacham’s vehicle. She asked Meacham if he needed assistance. Meacham opened his car door and responded, “I’m good.” During this brief interaction, Deputy Birket noticed that Meacham slurred his words, that he smelled of alcohol, and that his eyes were “glossy,” “watery,” and “red.” 1 The appendix of appellant’s opening brief contained transcripts from hearings on October 17 and November 10, 2014. These transcripts were not made part of the District Court record according to M. R. App. P. 8(1). Because both parties cited to these transcripts on appeal, and because the transcripts appear to constitute authentic records of the proceedings, we rely on them in part in our summary of the factual background of this case. 3 ¶4 Deputy Birket began looking around the rear of Meacham’s vehicle. As she did, Meacham’s tires gained traction and he drove away. Deputy Birket yelled at him to stop. He did not respond, so Deputy Birket pursued him in her patrol car. Meacham initially eluded Deputy Birket, but another law enforcement officer stopped him. Deputy Birket arrived and questioned Meacham, and Meacham admitted that he had been drinking. Deputy Birket arrested Meacham. ¶5 The State charged Meacham with felony driving under the influence, obstructing a peace officer, and driving while license suspended or revoked. Meacham moved to suppress the evidence against him and to dismiss the charges. He argued that Deputy Birket lacked particularized suspicion to justify her investigative stop of his vehicle. ¶6 The District Court denied Meacham’s motion. It reasoned that Deputy Birket properly initiated contact with Meacham under the “community caretaker doctrine” and that, while acting in her community caretaker capacity, she observed facts sufficient to establish particularized suspicion that Meacham had been driving under the influence. ¶7 On appeal, Meacham concedes that Deputy Birket properly initiated contact with him under the community caretaker doctrine. He contends, however, that her community caretaker function ceased at the moment Meacham told her that he did not need her assistance. Meacham argues that Deputy Birket did not, at that point, possess particularized suspicion of criminal wrongdoing. He contends that her subsequent interactions with him constituted an unlawful seizure. As a result, all the evidence she obtained during that unlawful seizure should have been suppressed. 4 ¶8 We review a district court’s grant or denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were applied correctly as a matter of law. City of Missoula v. Moore, 2011 MT 61, ¶ 10, 360 Mont. 22, 251 P.3d 679. A district court’s finding that particularized suspicion exists is a question of fact, which we review for clear error. City of Missoula, ¶ 10. We review the grant or denial of a motion to dismiss in a criminal proceeding de novo to determine whether the district court’s conclusion of law is correct. State v. Kant, 2016 MT 42, ¶ 11, 382 Mont. 239, 367 P.3d 726. ¶9 This Court recognizes the community caretaker doctrine, which serves as an exception to the warrant requirement for seizures. State v. Spaulding, 2011 MT 204, ¶ 18, 361 Mont. 445, 259 P.3d 793. The doctrine allows a police officer to stop and investigate when the officer reasonably suspects that “a citizen is in need of help or is in peril.” State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471. Once the officer is “assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure which must be justified by something other than the community caretaker doctrine, such as particularized suspicion or probable cause.” Spaulding, ¶ 21. ¶10 Particularized suspicion requires that an officer possess: “(1) objective data and articulable facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is 5 about to commit an offense.” Brunette v. State, 2016 MT 128, ¶ 17, 383 Mont. 458, 372 P.3d 476 (citing Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842). ¶11 As Meacham acknowledges, the community caretaker doctrine permitted Deputy Birket to initiate contact with Meacham to see if he needed assistance. Lovegren, ¶ 25. Once Meacham assured Deputy Birket that he did not require her assistance, any further actions by Deputy Birket constituted a seizure which needed to “be justified by something other than the community caretaker doctrine, such as particularized suspicion.” Spaulding, ¶ 21. ¶12 Deputy Birket’s testimony establishes that she had developed particularized suspicion by the time Meacham assured her that he did not need her help. Deputy Birket had observed Meacham’s car stuck in a snowbank behind a saloon at night. Meacham avoided eye contact with her and was staring blankly straight ahead when she first approached him. During her conversation with Meacham, Deputy Birket noticed numerous objective signs of intoxication. These observations constituted “articulable facts” from which Deputy Birket made the reasonable inference that Meacham had committed or was committing the offense of driving under the influence. See Brown, ¶ 20; Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 40, 289 Mont. 1, 961 P.2d 75 (stating that a driver’s smell of alcohol, bloodshot and glassy eyes, and slurred speech may establish particularized suspicion that the driver is intoxicated); State v. Marcial, 2013 MT 242, ¶¶ 5, 19, 371 Mont. 348, 308 P.3d 69 (holding that where an officer asked defendant driver who nearly crashed his car if he was okay, and where the officer smelled 6 alcohol on defendant among other signs of intoxication, the officer possessed particularized suspicion that defendant had been driving under the influence). Deputy Birket’s investigation and pursuit of Meacham after Meacham assured her that he did not require assistance was thus “justified by something other than the community caretaker doctrine”—particularized suspicion. Spaulding, ¶ 21. ¶13 The District Court’s conclusion that Deputy Birket possessed particularized suspicion was not clearly erroneous. City of Missoula, ¶ 10. Because Deputy Birket possessed particularized suspicion, the investigation that followed was lawful. The District Court thus correctly denied Meacham’s motion to suppress evidence and to dismiss the charges. City of Missoula, ¶ 10; Kant, ¶ 11. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. The judgment is affirmed. /S/ BETH BAKER We concur: /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE	December 20, 2016
72037f08-d91f-4c5b-8cdc-6242bb7d4842	State v. Watts	2016 MT 331	DA 15-0645	Montana	Montana Supreme Court	DA 15-0645 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 331 STATE OF MONTANA, Plaintiff and Appellee, v. BILLY JOE WATTS, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 2014-280 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Luke Berger, Deputy County Attorney, Helena, Montana Submitted on Briefs: October 26, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 15-0645 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Billy Joe Watts (Watts) appeals from the District Court’s denial of his motion to dismiss his previous Partner Family Member Assault (PFMA) convictions based on the unconstitutionality of the PFMA statute. We affirm. ¶2 We restate the issue on appeal as follows: Did the District Court err when it denied Watts’ motion to dismiss his felony conviction of Partner Family Member Assault and reduce his charge to a misdemeanor at sentencing? FACTUAL AND PROCEDURAL BACKGROUND ¶3 The State charged Watts with his fifth PFMA, a felony, for conduct occurring on June 23, 2014. Watts was on probation for a 2012 PFMA conviction. Watts has four prior PFMA convictions (2002 misdemeanor; 2003 misdemeanor; 2003 felony; and 2012 felony). The State filed a notice to classify Watts as a persistent felony offender (PFO) based on his 2003 and 2012 PFMA convictions. ¶4 Watts negotiated a plea agreement with the State where he agreed to plead guilty to PFMA (a felony) and the State agreed to withdraw the PFO notice. The plea agreement Watts signed included a proper acknowledgement and waiver of rights. The form provided that Watts understood and had the opportunity to examine the charges against him with his attorney; that his attorney fully advised and explained to him his rights, and the possible punishment for his crime; that Watts waived all the rights guaranteed by a trial, except the right to effective assistance of counsel; and that Watts was not threatened, coerced, forced, intimidated, or influenced in any way. 3 ¶5 Watts voluntarily pled guilty on December 18, 2014. During the colloquy the judge informed Watts of his right to remain silent, which Watts waived by answering questions. Watts informed the court he was of sound mind, not under the influence of any drugs or alcohol, was happy with his attorney’s work and understood the maximum punishment for his crime as well as the fact he could receive consecutive sentences for violating his parole. Watts did not reserve his right to appeal any issue. ¶6 At the February 24, 2015 sentencing hearing Watt’s counsel advised the court she intended to file a brief challenging his prior convictions and the constitutionality of Montana’s PFMA statute. In her brief, counsel argued the Montana PFMA statute violated the Equal Protection Clause of the United States and Montana Constitutions. Watt’s counsel also filed a motion requesting that the District Court dismiss the felony PFMA charge, reducing it to a misdemeanor. The District Court denied the motion based on an equal protection clause analysis and the severability of the alleged offending language. Watts appeals. STANDARD OF REVIEW ¶7 A ruling on a motion to dismiss in a criminal proceeding is a question of law, which we review de novo. State v. Burns, 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d 944. Whether a prior conviction may be used for sentence enhancement is generally a question of law, which the Court reviews de novo. State v. Maine, 2011 MT 90, ¶ 12, 360 Mont. 182, 255 P.3d 64. The constitutionality of a statute is a question of law, which we review for correctness. State v. Knudson, 2007 MT 324, ¶ 12, 340 Mont. 167, 174 P.3d 469. 4 DISCUSSION ¶8 Did the District Court err when it denied Watts’ motion to dismiss his felony conviction of Partner Family Member Assault and reduce his charge to a misdemeanor at sentencing? ¶9 Montana’s long standing jurisprudence holds that “where a defendant voluntarily and knowingly pleads guilty to an offense, the plea constitutes a waiver of all non-jurisdictional defects and defenses, including claims of constitutional rights violations which occurred prior to the plea.” State v. Lindsey, 2011 MT 46, ¶ 19, 359 Mont. 362, 249 P.3d 491; State v. Pavey, 2010 MT 104, ¶ 11, 356 Mont. 248, 231 P.3d 1104; State v. Kelsch, 2008 MT 339, ¶ 8, 346 Mont. 260, 194 P.3d 670; State v. Rytky, 2006 MT 134, ¶ 7, 332 Mont. 364, 137 P.3d 530; State v. Gordon, 1999 MT 169, ¶ 23, 295 Mont. 183, 983 P.2d 377; State v. Turcotte, 164 Mont. 426, 524 P.2d 787 (1974). A defendant may only attack the voluntary and intelligent character of the guilty plea and may not raise independent claims relating to prior deprivations of constitutional rights. Gordon, ¶ 23; State v. Wheeler, 285 Mont. 400, 948 P.2d 698 (1997); State v. Hilton, 183 Mont. 13, 597 P.2d 1171 (1979), overruled on other grounds in State v. Deserly, 2008 MT 242, 344 Mont. 468, 188 P.3d 1057 (After pleading guilty, a defendant is limited to attacking the voluntariness of the guilty plea and he may not raise independent claims relating to prior deprivations of constitutional rights.). ¶10 Watts argues that the PFMA statute at the time he was previously convicted was unconstitutional because it treated heterosexual and homosexual couples differently. Section 45-5-206, MCA (2003) (amended 2013). Watts claims he preserved his right to appeal the denial of his motion to dismiss. After a thorough review of the record, plea 5 agreement, and transcript, we cannot agree. The plea agreement, which was signed by Watts and his counsel and was presented to the District Court at the plea hearing, contains no language reserving the right to appeal after his guilty plea. The plea agreement specifically acknowledges that Watts waives his right to all appeals, except an appeal based on ineffective assistance of counsel. Watts has not preserved the right to challenge his conviction based on the constitutionality of the underlying statute. See State v. Krebs, 2016 MT 288, ¶ 6, 385 Mont 328, ___ P.3d ___. Moreover, Watts has not alleged any circumstances that would provide good cause for a withdraw of his guilty plea. See § 46-16-105(2), MCA. ¶11 Watts contends that this Court should review his claim under the Lenihan rule. State v. Lenihan, 184 Mont. 338, 602 P.2d 997 (1979). The Lenihan rule allows “an appellate court to review any sentence imposed in a criminal case, if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.” Lenihan, 184 Mont. at 343, 602 P.2d at 1000. ¶12 Watts cites State v. Ellis, 2007 MT 210, 339 Mont. 14, 167 P.3d 896 and State v. Strong, 2009 MT 65, 349 Mont. 417, 203 P.3d 848, in support of his argument. In Ellis, the defendant challenged a condition of his sentence (repayment for court appointed counsel), arguing the sentencing statute itself, § 46-8-113, MCA, was unconstitutional. Ellis, ¶ 10. In Strong, the defendant challenged the sentencing statute as well, § 46-18-201, MCA, arguing the law provided different sentencing standards for adults and youths tried as adults. Strong, ¶ 8. 6 ¶13 These cases are distinguishable. Ellis and Strong challenged the legality of their sentences and the sentencing statutes, while Watts attacks his conviction of a felony. Watts asks this Court to declare a former statute unconstitutional, apply that determination retroactively to his case, and then reduce his conviction to a misdemeanor. We decline to apply the Lenihan rule here. Watts specifically pled guilty to the felony and now seeks to challenge that conviction. Ellis and Strong are distinguishable because they did not challenge the underlying conviction but rather the sentence they received. CONCLUSION ¶14 Watts pled guilty and is not appealing his conviction based on a jurisdictional claim or other issue he properly preserved. Therefore, he can only challenge the voluntariness and intelligent character of his guilty plea. Kelsch, ¶ 8. He has not challenged his plea. Watts waived his right to appeal the constitutionality of the prior PFMA statute. ¶15 Affirmed. /S/ MIKE McGRATH We Concur: /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ JIM RICE	December 20, 2016
9a075541-178b-4183-ad48-65e636d2b235	In re J.W.	2016 MT 330	DA 16-0041	Montana	Montana Supreme Court	DA 16-0041 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 330 IN THE MATTER OF: J.W., A Delinquent Youth. APPEAL FROM: Youth Court and District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DJ-2013-3 and DC-2015-48 Honorable Loren Tucker, Presiding Judge COUNSEL OF RECORD: For Appellant: Al Avignon, Lisa A. Banick, Avignon, Banick & Williams, PLLC, Bozeman, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Steve C. Haddon, Jefferson County Attorney, Danielle Perry, Deputy County Attorney, Boulder, Montana Submitted on Briefs: October 26, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 16-0041 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 J.W. appeals an order of the Fifth Judicial District Youth Court, Jefferson County, granting the State of Montana’s motion to transfer J.W.’s case to the Fifth Judicial District Court, Jefferson County, and denying J.W.’s motion to suppress statements he made to treatment providers. We address the following issues: Issue One: Whether the Youth Court erred in granting the State’s motion to transfer J.W.’s Youth Court proceeding to the District Court pursuant to § 41-5- 208, MCA. Issue Two: Whether the Youth Court and District Court erred in imposing house arrest with restrictive conditions on J.W. pending a final disposition of his case. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In September 2013, J.W. pled true to two counts of sexual intercourse without consent in violation of § 45-5-503, MCA, and one count of solicitation of sexual intercourse without consent in violation of §§ 45-4-101 and 45-5-503, MCA. In January 2014, the Youth Court designated J.W. a delinquent youth and serious juvenile offender and placed him on probation, subject to several conditions, including the successful completion of a sexual offender treatment program (SOTP). J.W. also was prohibited from having unsupervised contact with youths under the age of sixteen. ¶4 In April 2014, the State filed a petition to revoke J.W.’s probation. J.W. pled true to unsupervised contact with a youth under the age of sixteen in violation of his probation. On June 25, 2014, the Youth Court held a dispositional hearing. On June 30, 2014, the Youth Court issued a disposition order revoking J.W.’s probation, committing 3 him to a Montana Department of Corrections (DOC) placement at Pine Hills Youth Correctional Facility until the age of eighteen, and requiring him to complete phases I and II of Pine Hills’ juvenile SOTP. In July 2014, J.W. entered Pine Hills’ SOTP. In March 2015, he was expelled from the SOTP. ¶5 In June 2015, the State filed a motion to revoke the District Court’s disposition order, transfer J.W.’s case to the District Court pursuant to § 41-5-208, MCA, and order him to complete phases I and II of an SOTP within a secure DOC facility. The basis for the State’s motion was that J.W. did not complete Pine Hills’ SOTP in accordance with the June 30, 2014 disposition order. The State attached to its motion a letter written by Alice Hougardy, a licensed clinical professional counselor at Pine Hills. Hougardy’s letter referenced the results of a polygraph administered to J.W. Because of the reference to the polygraph results, the Youth Court denied the State’s motion, but granted the State leave to file a new motion. ¶6 In August 2015, the State filed a new motion to transfer pursuant to § 41-5-208, MCA. The State attached a letter from Hougardy that did not reference the polygraph. J.W. moved to strike the State’s motion and to suppress statements he made to his SOTP treatment providers. The Youth Court scheduled a transfer hearing for September 30, 2015. Before the hearing, J.W. turned eighteen and was released from Pine Hills to the custody of his parents. The day before the hearing, J.W. filed an emergency motion to vacate the hearing on the basis that there was nothing for the Youth Court to transfer because his disposition terminated when he turned eighteen. The Youth Court denied J.W.’s motion to vacate and proceeded with the transfer hearing. 4 ¶7 At the hearing, J.W. objected to evidence and testimony presented by Alicia Esteves, a program manager in Pine Hills’ sex offender unit, and by Hougardy, claiming that their testimony regarding statements J.W. made during the SOTP violated his right against self-incrimination. The Youth Court overruled J.W.’s evidentiary objections and reserved ruling on the constitutional issues. At the close of the hearing, the Youth Court took the parties’ remaining motions under advisement and indicated it would hold a separate hearing regarding J.W.’s placement if it determined transfer was appropriate. The Youth Court ordered J.W. to remain under house arrest and in the custody of his parents pending further proceedings. ¶8 In October 2015, the State filed a motion to revoke J.W.’s release. J.W. then filed a petition for a writ of supervisory control with this Court, asking us to vacate the Youth Court’s interim order requiring J.W. to be on house arrest and in the custody of his parents. We denied J.W.’s petition. On November 25, 2015, the Youth Court issued an order transferring J.W.’s case to the District Court to ensure compliance with the Youth Court’s June 30, 2014 disposition requirement that J.W. successfully complete an SOTP. The Youth Court also denied J.W.’s motion to suppress and strike. ¶9 On December 16, 2015, the District Court held a dispositional hearing. J.W. argued that he could not be incarcerated or supervised by the DOC and asked the District Court to modify the terms of his house arrest. The District Court adopted the interim order imposed by the Youth Court requiring J.W. to remain on house arrest and in the custody of his parents. Before the District Court entered a final dispositional order, J.W. filed a notice of appeal with this Court. J.W. appeals the Youth Court’s November 25, 5 2015 order transferring his case to the District Court and the Youth Court and District Court’s interim orders placing him on house arrest. STANDARDS OF REVIEW ¶10 We review for correctness a youth court’s conclusions of law, including its interpretation and application of constitutional provisions and the Montana Youth Court Act. See In re S.M.K.-S.H., 2012 MT 281, ¶ 16, 367 Mont. 176, 290 P.3d 718. We review a youth court’s factual findings for clear error. In re Z.M., 2007 MT 122, ¶ 19, 337 Mont. 278, 160 P.3d 490. A finding is clearly erroneous if it is not supported by substantial evidence, if the youth court clearly misapprehended the effect of the evidence, or if this Court is left with a “definite and firm” conviction that the youth court made a mistake. Z.M., ¶ 19. Additionally, we will affirm a youth court’s ruling when it reaches the right result, even if it reaches that result for the wrong reason. See In re A.D.T., 2015 MT 178, ¶ 10, 379 Mont. 452, 351 P.3d 682. DISCUSSION ¶11 Issue One: Whether the Youth Court erred in granting the State’s motion to transfer J.W.’s Youth Court proceeding to the District Court pursuant to § 41-5- 208, MCA. ¶12 The transfer provision of the Youth Court Act, § 41-5-208(1), MCA, provides, in relevant part: [T]he [youth] court may, on the youth’s motion or the motion of the county attorney, transfer jurisdiction to the district court and order the transfer of supervisory responsibility from juvenile probation services to adult probation services. A transfer under this section may be made to ensure continued compliance with the court’s disposition under 41-5-1512 or 41-5- 1513 . . . . 6 In its November 25, 2015 order, the Youth Court held that transferring J.W.’s case to the District Court was necessary to ensure compliance with the Youth Court’s June 30, 2014 order because J.W. failed to complete an SOTP. J.W. contends that, in reaching this decision, the Youth Court impermissibly considered evidence presented by the State that was tainted by his polygraph results and statements to treatment providers that should have been suppressed. He contends his polygraph argument is supported by In re N.V., 2004 MT 80, 320 Mont. 442, 87 P.3d 510, and State v. Anderson, 1999 MT 58, 293 Mont. 472, 977 P.2d 315. ¶13 In Anderson, ¶¶ 5, 16, we reversed a defendant’s sentence because his probation officer, in making her sentencing recommendations, considered a psychosexual evaluation that relied in part on the results of a polygraph. Similarly, in N.V., ¶¶ 23-25, we held that a youth court erred in considering a psychological evaluation that was prepared using polygraph information. Anderson and N.V. are inapposite to the present case. In this case, the Youth Court did not need to consider any evaluations of J.W., because there is no dispute that J.W. did not complete Pine Hills’ SOTP. In a letter to the Youth Court dated March 15, 2015, J.W. wrote: I regret to inform you that you will be receiving a letter from Pine Hills notifying you that I have been terminated from the [SOTP] due to constant stalling and devient [sic] behaviors, as well as minipulation [sic] of facility staff and peers. Your Honor, I am sorry to say that the report is valid, and I have failed the program. I understand by this that I have also violated your sentencing order. 7 Although J.W. claims this letter was improperly admitted over his objection “because it was precipitated after Hougardy showed J.W. her March 8, 2015 letter,” the Youth Court found that there was “no evidence that any part of this letter was initiated . . . in connection with the polygraph.” In his briefing before this Court, J.W. makes a blanket assertion that the District Court erred in overruling his objection but does not point to any evidence linking J.W.’s letter to the polygraph information. J.W.’s letter does not mention a polygraph, and J.W. never testified regarding his motives for sending the letter. In his letter, J.W. wrote: “I hope you understand that this letter is my own doing w/o anyone’s assistance. This is the truth, I wanted to man up and tell you the truth myself.” Therefore, we cannot conclude that the Youth Court erred in admitting the letter. ¶14 Irrespective of how or why J.W. was removed from the SOTP, he undisputedly did not complete that portion of his disposition while under the Youth Court’s jurisdiction. Additionally, the Youth Court’s requirement that J.W. successfully complete an SOTP was not, as J.W. argues, impossible. Under the jurisdiction of the District Court, he will still have the opportunity to comply with that condition of his disposition. The Youth Court did not err in granting the State’s motion to transfer J.W.’s Youth Court proceeding “to ensure continued compliance with the court’s disposition.” See § 41-5-208(1), MCA. ¶15 We also reject J.W.’s argument that the Youth Court’s application of § 41-5-208, MCA, violated his right to be free from double jeopardy. See U.S. Const. amend. V (“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”); Mont. Const. art. II, § 25 (“No person shall be again put in jeopardy for the same offense previously tried in any jurisdiction.”). J.W. failed to comply with the 8 Youth Court’s original disposition order requiring him to successfully complete the SOTP while at Pine Hills. The State’s effort to ensure that J.W. completes the unfulfilled portion of the disposition does not constitute additional punishment, and thus does not constitute double jeopardy. Rather, transfer of J.W.’s case is necessary to allow him to comply with the disposition. Further, although the Youth Court’s June 30, 2014 order revoking J.W.’s probation does not explicitly state that J.W.’s case may be transferred to the District Court, the State’s ability to request a transfer is inherent under § 41-5-208, MCA. Additionally, the Youth Court mentioned the State’s ability to transfer J.W.’s case twice during its June 25, 2014 dispositional hearing, stating: “if [J.W.] doesn’t complete sex offender treatment at age eighteen, I imagine the State will probably be coming back and filing a [§ 41-5-]208 petition to transfer him to adult supervision.” The Youth Court correctly rejected J.W.’s double-jeopardy claim. ¶16 Issue Two: Whether the Youth Court and District Court erred in imposing house arrest with restrictive conditions on J.W. pending a final disposition of his case. ¶17 The jurisdiction provision of the Youth Court Act, § 41-5-203(1), MCA, provides, in relevant part: Except as provided in subsection (2) and for cases filed in the district court under 41-5-206, the [youth] court has exclusive original jurisdiction of all proceedings under the Montana Youth Court Act in which a youth is alleged to be a delinquent youth or a youth in need of intervention or concerning any person under 21 years of age charged with having violated any law of the state . . . prior to having become 18 years of age. The enumerated exceptions do not apply in this case. Section 41-5-203(3)(a), MCA, provides that a youth court has jurisdiction to “transfer a youth court case to the district court after notice and hearing.” A youth court may modify an order pertaining to a youth 9 committed to DOC upon notice to DOC and a subsequent hearing. Section 41-5-1422(2), MCA. Pursuant to § 41-5-1512(1)(a) and (k), MCA, a youth court may place a youth on probation and under house arrest. ¶18 Pursuant to the Youth Court’s June 30, 2014 order, J.W. no longer was under DOC supervision once he turned eighteen years old. However, pursuant to § 41-5-203(1) and (3)(a), MCA, the Youth Court had jurisdiction over J.W. until he turned twenty-one or until it transferred jurisdiction to the District Court. As discussed in our resolution of Issue One, J.W. undisputedly did not comply with the June 20, 2014 order. As a result, the Youth Court modified its order, after holding a hearing, to ensure J.W. remained under supervision until he complied with his disposition. The District Court, once J.W.’s case was transferred to it, had the authority to impose conditions “consistent with the underlying youth court disposition.” A.D.T., ¶ 15. The District Court’s continuation of J.W.’s house arrest in keeping with the Youth Court’s order is consistent with the underlying Youth Court disposition order. ¶19 The State concedes that “some of the restrictions on J.W.’s freedom of movement on home arrest appear to violate the statutory limitations on that disposition” set forth in §§ 41-5-1512(1)(k)and 46-18-1003(1)(a), MCA. We therefore instruct the District Court to abide by those statutory provisions, as conceded by the State, if J.W.’s house arrest is continued. 10 CONCLUSION ¶20 We affirm the District Court’s decision and order. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ MICHAEL E WHEAT	December 20, 2016
8a1add2e-b921-4c17-88c5-a4aecaf0ca9d	IN THE MATTER OF THE MONTANA RULES	2007 MT 334	AF 07-0157	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA AF 07-0157 _________________ IN THE MATTER OF THE MONTANA RULES OF CIVIL PROCEDURE O R D E R _________________ Following a publication of proposed changes with a comment period, the Court hereby adopts amendments to several of the Montana Rules of Civil Procedure. The first three changes are to M. R. Civ. P. 4. Of these, the first is for a non-substantive change to M. R. Civ. P. 4(c)(2)(C)(i) and (ii), to correct parentheticals that were inadvertently reversed. The second change comes at the recommendation of the Montana Secretary of State, who reports that the fees set forth in M. R. Civ. P. 4(j)(3)(B) and 4(p)(2)(C) for service on her office are insufficient to cover actual costs. The fees are raised from $10 to $20. The third change clarifies M. R. Civ. P. 4(o)(1)(C), concerning service by publication. The Court revises M. R. Civ. P. 52(a)(3) to require that orders issued under M. R. Civ. P. 12 and 56 must include articulation of the basis for the order. Finally, the Court revises the timelines and the procedure for deemed denial of motions for new trial or to alter or amend a judgment, and motions for relief from a judgment or order under M. R. Civ. P. 59(b) and (f), and 60(c)(1), respectively. IT IS ORDERED that the above changes to the Montana Rules of Civil Procedure are adopted, effective July 1, 2017. The changes are reflected in the attached complete Montana Rules of Civil Procedure. IT IS FURTHER ORDERED that this Order shall be published on the Court’s website and that notice of this Order shall be posted on the website of the State Bar of Montana and in the next available issue of the Montana Lawyer. 12/14/2016 Case Number: AF 07-0157 2 The Clerk is directed to provide copies of this Order to the Montana State Law Library and the State Bar of Montana. The Clerk is further directed to provide copies of this Order to Todd Everts, Connie Dixon, and Derek Gallagher at Montana Legislative Services Division; to Helene Haapala and Colena Webb at Thomson Reuters; to Robert Roy and Patti Glueckert at LexisNexis; to the Montana Trial Lawyers Association; to the Montana Defense Trial Lawyers Association; to Montana Legal Services; and to the Montana Judges Association. Dated this 14th day of December, 2016. /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE 1 RULES OF CIVIL PROCEDURE TITLE I. Scope of Rules; Form of Action Rule 1. Scope of Rules. These rules govern the procedure in all civil actions and proceedings in the district courts of the state of Montana, including probate proceedings, unless specifically provided to the contrary in the Uniform Probate Code; and except as stated in Rule 81. They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. COMMITTEE NOTES The language of Rule 1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The former reference to “suits of a civil nature” is changed to the more modern “civil actions and proceedings.” This is not meant to be a substantive change. The rules minimize the use of inherently ambiguous words. For example, the word “shall” is removed because it is inherently ambiguous in that it can mean “must,” “may,” or something else depending on the context. “Shall” is replaced with “must,” “may,” or “should,” depending on which one the context and established interpretation make correct in each rule. Language has been added to make it clear that the Civil Rules apply to probate proceedings except where the Probate Code specifies different procedures. This is consistent with section 72-1-207. Rule 2. One form of Action. There is one form of action -- the civil action. COMMITTEE NOTES The language of Rule 2 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. TITLE II. Commencing an Action; Service of Process, Pleadings, Motions, and Orders Rule 3. Commencing an Action. A civil action is commenced by filing a complaint with the court. 2 COMMITTEE NOTES The language of Rule 3 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 4. Persons Subject to Jurisdiction; Process; Service. (a) Definition of Person. As used in this rule, the word “person,” whether or not a citizen of this state, a resident of this state, or organized under the laws of this state, includes: (1) an individual, whether operating in the individual’s own name or under a trade name; (2) an individual’s agent or personal representative; (3) a corporation; (4) a limited liability company; (5) a business trust; (6) an estate; (7) a trust; (8) a partnership; (9) an unincorporated association; (10) any two or more persons having a joint or common interest or any other legal or commercial entity; and (11) any other organization given legal status as such under the laws of this state. (b) Jurisdiction of Persons. (1) Subject to Jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of Montana courts. Additionally, any person is subject to the jurisdiction of Montana courts as to any claim for relief arising from the doing personally, or through an employee or agent, of any of the following acts: 3 (A) the transaction of any business within Montana; (B) the commission of any act resulting in accrual within Montana of a tort action; (C) the ownership, use, or possession of any property, or of any interest therein, situated within Montana; (D) contracting to insure any person, property, or risk located within Montana at the time of contracting; (E) entering into a contract for services to be rendered or for materials to be furnished in Montana by such person; (F) acting as director, manager, trustee, or other officer of a corporation organized under the laws of, or having its principal place of business within, Montana; or (G) acting as personal representative of any estate within Montana. (2) Acquisition of Jurisdiction. Jurisdiction may be acquired by Montana courts over any person: (A) through service of process as herein provided; or (B) by the voluntary appearance in an action by any person either personally or through an attorney, authorized officer, agent, or employee. (c) Summons. (1) Issuance. On or after filing the complaint, the plaintiff or the plaintiff’s attorney must present a summons to the clerk for issuance. The clerk must issue and deliver a properly completed summons to the plaintiff or the plaintiff’s attorney, who must thereafter deliver it for service upon the defendant as prescribed by these rules. Service of the summons must be accomplished within the times prescribed by Rule 4(t). Upon request, the clerk must issue separate or additional summons against any parties designated in the original action or any additional parties who may be brought into the action. Such separate or additional summons must also be served in the manner and within the times prescribed by these rules. The party requesting issuance of the summons bears the burden of having it properly issued, served, and filed with the clerk. 4 (2) Form. (A) Contents. A summons must: (i) name the court and the parties; (ii) be directed to the defendant; (iii) state the name and address of the plaintiff’s attorney or -- if unrepresented -- of the plaintiff; (iv) state the time within which the defendant must appear and defend; (v) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; (vi) be signed by the clerk; and (vii) bear the court’s seal. (B) Quiet Title Actions. In an action to quiet title to real estate, the following must be added to the summons: “This action is brought to quiet title to land situated in _______________ County, Montana, and described as follows: [Here insert descriptions of land].” (C) Statutory Exceptions. Whenever a Montana statute, or a court order or citation issued pursuant thereto, provides for the service of a notice, order, or citation in lieu of summons upon any person, service shall be made under the circumstances and in the manner prescribed by the statute, order, or citation. Additionally, all persons are required to comply with the provisions of the following sections, when applicable: (i) 33-1-603 (service on an insurer through the commissioner of insurance); (ii) 33-1-613 (service on unauthorized insurer doing business in Montana); (iii) 33-1-614 (exemptions from service of process for certain insurers); (iv) 33-2-314 (where to bring suit against an insurer); (v) 33-2-315 (when the commissioner of insurance is appointed agent for service of process); (vi) 70-28-207 (how summons must read in a suit to quiet title to property granted to an heir of a deceased entryman); 5 (vii) 70-28-208 (publication and posting of summons in a suit to quiet title to property granted to an heir of a deceased entryman); (viii) 70-28-209 (personal service of summons -- service by mail in a suit to quiet title to property granted to an heir of a deceased entryman); and (ix) 70-28-212 (time for the defendant to appear and answer in a suit to quiet title to property granted to an heir of a deceased entryman). (D) By Publication. When service by publication is permitted pursuant to Rule 4(o), the published summons must also include a statement in general terms of the nature of the action. When the action is one in which the title to, or any interest in or lien upon, real property is involved, affected, or brought into question, the published summons must also contain a description of the real property and a statement of the object of the action. (d) Service. (1) In General. The summons and complaint must be served together. The plaintiff must furnish the necessary copies to the person who makes service. (2) In Person. Service of all process may be made in the county where the party to be served is found by a sheriff, deputy sheriff, constable, or any other person over the age of 18 not a party to the action. (3) (A) By Mail. A summons and complaint may also be served by mailing via first class mail, postage prepaid, the following to the person to be served: (i) a copy of the summons and complaint; (ii) two copies of a notice and acknowledgment conforming substantially to form 18-A; and (iii) a return envelope, postage prepaid, addressed to the sender. (B) A summons and complaint may not be served by mail to the following: (i) A minor; (ii) An incompetent person; or (iii) A corporation, partnership, or other unincorporated association, whether domestic or foreign. (C) If no acknowledgment of service by mail is received by the sender within 21 days after the date of mailing, service of the summons and complaint must be made in person. 6 (D) If a person served by mail does not complete and return the notice and acknowledgment within 21 days, the court must order that person to pay the costs of personal service unless good cause is shown for not doing so. (E) The notice and acknowledgment must be signed and dated by the defendant, and service of summons and complaint will be deemed complete on the date shown. (e) Serving an Individual. An individual -- other than a minor or an incompetent person -- must be served by either: (1) delivering a copy of the summons and complaint to the individual personally; or (2) delivering a copy of the summons and complaint to an agent authorized by appointment or law to receive service of process. If the agent is one designated by statute to receive service, such further notice as the statute requires must be given. (f) Serving a Minor over the Age of 14 Years. A minor over the age of 14 years must be served by either: (1) delivering a copy of the summons and complaint to the minor personally and leaving a copy thereof at the minor’s usual place of abode with some adult of suitable discretion also residing therein; or (2) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. (g) Serving a Minor under the Age of 14 Years. A minor under the age of 14 years may be served by delivering a copy of the summons and complaint to the minor’s guardian within Montana. If the minor does not have a guardian within Montana, service of process must be delivered to any of the following: (1) the minor’s father; (2) the minor’s mother; (3) another person or agency having the minor’s care, control, or with whom the minor resides; or (4) another person or agency as provided by court order. (h) Serving an Incompetent Person. (1) An incompetent person who has been adjudged of unsound mind by a Montana court or for whom a guardian has been appointed in Montana by reason of incompetency may be served by delivering a copy of the summons and complaint to the person’s guardian, if such guardian resides in Montana, was appointed under 7 Montana law, and is acting under Montana law. If there be no such guardian, the court must appoint a guardian ad litem for the incompetent person. (2) When a party is alleged to be of unsound mind, but has not been so adjudged by a Montana court, process may be served personally upon that party. (3) The court may also stay any action pending against a person on learning that such person is of unsound mind. (i) Serving a Business or Nonprofit Entity. (1) For the purposes of this Rule, a business or nonprofit entity includes the following: (A) a corporation; (B) a limited liability company; (C) a partnership; (D) any other unincorporated association; and (E) any business entity that has filed with the office of the secretary of state. (2) Service is available under this rule for a domestic business or nonprofit entity, as well as a foreign business or nonprofit entity that either: (A) has a place of business in Montana; (B) does business in Montana permanently or temporarily; or (C) was doing business in Montana permanently or temporarily at the time the claim for relief accrued. (3) A business or nonprofit entity must be served by either: (A) delivering a copy of the summons and complaint to: (i) an officer; (ii) a director; (iii) a manager; (iv) a member of a member-managed limited liability company; (v) a superintendent; (vi) a managing agent; 8 (vii) a general agent; or (viii)a partner; (B) leaving copies of the summons and complaint at the office or place of business within Montana with the person in charge of such office; (C) delivering a copy of the summons and complaint to the registered agent named on the records of the secretary of state; (D) delivering a copy of the summons and complaint to any other agent or attorney in fact authorized by appointment or by statute to receive or accept service on behalf of the business or nonprofit entity, provided that if the agent or attorney in fact is designated by statute to receive service, further notice as required by the statute must also be given; or (E) if the suit is against a business or nonprofit entity whose charter or right to do business in Montana has expired or been forfeited, by delivering a copy of the summons and complaint to its trustees or stockholders or members. (j) Serving a Corporation or Limited Liability Company When Persons Designated Under Rule 4(i) Cannot Be Found Within Montana. (1) This Rule applies when none of the persons designated in Rule 4(i) can be found within Montana with the exercise of due diligence, and a claim for relief is pending in any Montana court against the following: (A) a corporation or limited liability company that has filed a copy of its charter in the office of the Montana secretary of state and is qualified to do business in Montana; (B) a corporation or limited liability company which is subject to the jurisdiction of Montana courts under Rule 4(b), even though it has never qualified to do business in Montana; or (C) a national banking corporation which, through insolvency or lapse of charter, has ceased to do business in Montana. (2) The party causing summons to be issued shall exercise reasonable diligence to ascertain the last known address of any person designated under Rule 4(i). 9 (3) If, after exercising reasonable diligence, the party causing summons to be issued is unable to accomplish service, the following must be filed with the clerk of the court in which the claim for relief is pending: (A) an affidavit reciting that none of the persons designated in Rule 4(i) can be found within Montana, as well as a recitation of either: (i) the last known address of any person designated under Rule 4(i); or (ii) a statement that no address for any person designated under Rule 4(i) could be found after the exercise of reasonable diligence; and (B) $20 deposited with the clerk to be paid to the secretary of state as a fee for each defendant for whom the secretary of state is to receive service. When service is requested at more than one address, an additional $20 must be paid for each party to be served at each additional address. (4) An affidavit filed pursuant to Rule 4(j)(3)(A) reciting that diligent inquiry was made is sufficient evidence of the diligence of inquiry. The affidavit need not detail the facts constituting such inquiry. The affidavit may also be combined in the same instrument with the affidavit required under Rules 4(o)(3)(A)(ii) and 4(p), should an affidavit under these Rules be required. (5) Upon receiving the necessary affidavit and fees as required under Rule 4(j)(3), the clerk of court must: (A) issue an order directing process to be served upon the Montana secretary of state or, in the secretary of state’s absence, upon the Montana deputy secretary of state; and (B) mail to the secretary of state at the office of the secretary of state: (i) the original summons; (ii) one copy of the summons and affidavit for the files of the secretary of state; (iii) one copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state; and (iv) the fee for service. (6) (A) Upon receiving the materials required under Rule 4(j)(5)(B), the secretary of state must mail a copy of the summons and complaint by certified mail, return receipt requested, either: 10 (i) to the last known address of any of the persons designated in Rule 4(i); or (ii) if the corporation or liability company is not organized in Montana and no address for a person designated under Rule 4(i) is known, to the secretary of state of the state in which the corporation or limited liability company was originally incorporated, if known. (B) The secretary of state must also make a return as provided in Rule 4(p). (7) Service made in accordance with this Rule is deemed personal service on the corporation or limited liability company and the secretary of state, or a deputy in the absence of the secretary of state, is thereby appointed agent of the corporation or limited liability company for service of process. (8) (A) If a person designated in Rule 4(i) is located and served personally as provided by this Rule, service is deemed complete upon the corporation or limited liability company regardless of the receipt of any return receipt or advice by the postal authority of refusal of the addressee to receive the process mailed. (B) If a person designated in Rule 4(i) is not located or served personally as provided by this Rule, service by publication must also be made as provided in Rules 4(c)(2)(D) and 4(o)(4). Such publication must first be made within 60 days from the date the original summons is mailed to the secretary of state. If such first publication is not made, the action shall be deemed dismissed as to any corporation or limited liability company intended to be served by such publication. Service by publication in accordance with this Rule is complete upon the date of the last publication of summons. (9) When service of process is made in accordance with this Rule, and there is no appearance thereafter made by any attorney for such corporation or limited liability company, service of all other notices required by law to be served in such action may be served upon the secretary of state. (k) Serving a Local Government Entity. (1) For purposes of this Rule, a local government entity includes the following: (A) a city; (B) a village; (C) a town; (D) a school district; 11 (E) a county; or (F) a public agency or board of any such entity. (2) A local government entity must be served by delivering a copy of the summons and complaint to any of the following: (A) a commissioner; (B) a trustee; (C) a board member; (D) a mayor; or (E) a head of the legislative department thereof. Whenever an officer or employee of the local government entity is sued in an individual capacity for an act or omission occurring in connection with duties performed on the local government entity’s behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the local government entity and also serve the officer or employee under Rules 4(e), 4(f), 4(g), 4(h), or 4(n). (l) Serving the State. The state, as well as any state board or agency, must be served by delivering a copy of the summons and complaint to the attorney general and any other party prescribed by statute. Whenever an officer or employee of the state is sued in an individual capacity for an act or omission occurring in connection with duties performed on the state’s behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the state and also serve the officer or employee under Rules 4(e), 4(f), 4(g), 4(h), or 4(n). (m) Serving an Estate or Trust. (1) An estate must be served by delivering a copy of the summons and complaint to the personal representative. (2) A trust must be served by delivering a copy of the summons and complaint to any of the trustees. (n) Personal Service outside Montana. (1) When a person cannot, with due diligence, be served personally within Montana, service may be made outside Montana in the manner provided for service within Montana. Such service has the same force and effect as though it had been made within Montana. (2) Where service by publication is permitted, personal service of the summons and complaint upon the defendant outside Montana is equivalent to and dispenses with 12 the procedures, publication, and mailing provided for in Rules 4(o)(3), 4(o)(4), and 4(o)(5). (o) Service by Publication. (1) When Permitted. A defendant who has not been served under the foregoing sections of Rule 4 can only be served by publication in the following situations: (A) when the subject of the action is real or personal property in Montana in which the defendant has or claims an actual or contingent lien or interest, or the relief demanded consists wholly or partially in excluding the defendant from any interest therein; (B) when the action is to foreclose, redeem from, or satisfy a mortgage, claim, or lien upon real or personal property within Montana; (C) when the action is for dissolution, legal separation or a declaration of invalidity of a marriage of a Montana resident, for modification of a decree of dissolution, or for an order on custody, visitation, support, or a parenting plan granted by a Montana court; or (D) when the defendant has property within Montana which has been attached or has a debtor within Montana who has been garnished. Jurisdiction under this subsection may be independent of or supplementary to jurisdiction acquired under Rules 4(o)(1)(A), 4(o)(1)(B), or 4(o)(1)(C). (2) Effect of Service by Publication. When a defendant has been served by publication as provided in this Rule, any Montana court having jurisdiction may render a decree adjudicating any interest of such defendant in the status, property, or thing acted upon. Such a decree does not bind the defendant personally to the personal jurisdiction of the court unless some ground for the exercise of personal jurisdiction exists. (3) Filing of Pleading and Affidavit for Service by Publication; Order for Publication. (A) Before service of the summons by publication is authorized, the following must be filed with the clerk of the district court of the county in which the action is commenced: (i) a pleading setting forth a claim in favor of the plaintiff and against the defendant in one of the situations defined in Rule 4(o)(1); and (ii)(a) in situations defined in Rules 4(o)(1)(A), 4(o)(1)(B), and 4(o)(1)(C), upon return of the summons showing the failure to find any defendant designated in the complaint, an affidavit stating that either: 13 1. such defendant resides out of Montana; 2. such defendant has departed from Montana; 3. such defendant cannot, after due diligence, be found within Montana; 4. such defendant conceals the defendant’s person to avoid the service of summons; 5. the defendant is a business or nonprofit entity as defined in Rule 4(i)(1) of which none of the persons in Rule 4(i) can, after due diligence, be found within Montana; or 6. the defendant is an unknown claimant and the affiant has made diligent search and inquiry for all persons who claim or might claim any present or contingent right, title, estate, interest in, lien, or encumbrance upon such property or any part thereof, adverse to plaintiff’s ownership, or any cloud upon plaintiff’s title thereto, including any right of inchoate or accrued dower, and that the affiant has specifically named as defendants in such action all such persons whose names can be ascertained. (b) Such affidavit is sufficient evidence of the diligence of any inquiry made by the affiant if it recites the fact that diligent inquiry was made. The facts constituting such inquiry need not be detailed. (c) Such affidavit may be with the affidavit required under Rules 4(j)(3)(A) and 4(p), should an affidavit under these Rules be required. (iii) In the situation defined in Rule 4(o)(1)(D), proof that a valid attachment or garnishment has been effected must first be presented to the court. (B) Upon complying herewith, the plaintiff must obtain an order, issued either by the judge or clerk of court, for the service of summons to be made upon the defendants by publication. (4) Number of Publications. Service by publication must be made by publishing the summons once a week for three successive weeks in a newspaper published in the county in which the action is pending or, if no newspaper is published in such county, then in a newspaper published in an adjoining county that has a general circulation therein. (5) Mailing Summons and Complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication but not later than 14 days after the first publication of the summons, must be mailed, postage prepaid, to the defendant at 14 defendant’s place of residence, unless the affidavit for publication states that the residence of the defendant is unknown. If the defendant is a business or nonprofit entity as defined in Rule 4(i)(1), and personal service cannot with due diligence be effected within Montana on any of the persons designated in Rule 4(i), then the secretary of state must be served pursuant to Rule 4(j). (6) Time When First Publication or Service outside Montana Must Be Made. The first publication of summons or personal service of the summons and complaint upon the defendant out of Montana must be made within 60 days after the filing of the affidavit for publication. If not, the action must be dismissed as to any party intended to be served by such publication. (7) When Service by Publication or Outside Montana Complete. Service by publication is complete on the date of the last publication of the summons or, in case of personal service of the summons and complaint upon the defendant out of Montana, on the date of such service. (p) Serving the Secretary of State. (1) Whenever service is to be made as provided in Rules 4(i) and 4(o)(5), the requirements of Rule 4(i) must be met. (2) In all other cases, unless otherwise provided by statute, whenever the Montana secretary of state has been appointed, or is deemed by law to have been appointed, as the agent to receive service of process for any person who cannot with due diligence be found or served personally within Montana, the party or the party’s attorney must file with the clerk of court in which the claim for relief is pending the following: (A) an affidavit stating the facts showing that the secretary of state is such agent, as well as the residence and last known address of the person to be served; (B) sufficient copies of the affidavit, summons, and complaint for service upon the secretary of state; and (C) $20 to be paid to the secretary of state as a fee for each of the defendants for whom the secretary of state is to receive service. Where service is requested at more than one address, an additional $20 must be paid for each party to be served at each additional address. (3) Upon receipt of the materials specified in Rule 4(p)(2), the clerk must forward to the secretary of state the following: (A) the original summons; (B) a copy of both the summons and the affidavit for the files of the secretary of state; 15 (C) a copy of the summons attached to a copy of the complaint for each of the defendants to be served by service upon the secretary of state; and (D) the fee. (4) Such service on the secretary of state is sufficient personal service upon the person to be served provided that either: (A) notice of such service, a copy of the summons, and a copy of the complaint are sent from the secretary of state or a deputy to the party to be served at the party’s last known address by registered or certified mail, marked “Deliver to Addressee Only” and “Return Receipt Requested.” Either such return receipt purportedly signed by the addressee must be received by the secretary of state, or the postal authority must advise the secretary of state that delivery of the registered or certified mail was refused by the addressee, except in those cases where compliance is excused under the provisions of Rule 4(i). The date upon which the secretary of state receives either the return receipt or the advice of the postal authority is deemed the date of service; or (B) the secretary of state, or a deputy, may cause a copy of the summons and complaint to be served by any qualified law enforcement officer in accordance with the applicable procedure from Rules 4(e)-(n). (5) The secretary of state or a deputy must make an original and two copies of an affidavit reciting the following: (A) the fact of service upon the secretary of state by the clerk of court, including the day and hour of such service; (B) the fact of mailing a copy of the summons, complaint, and notice to the defendant, including the day and hour thereof, except in those cases where such mailing is excused under Rule 4(i), in which cases the affidavit must so recite; and (C) the fact of receipt of a return from the postal department, including the date and hour thereof. A copy of such return must be attached to the affidavit. (6) The secretary of state, or a deputy, must then transmit to the clerk of court the following, which the clerk must file in the claim for relief: (A) the original summons; (B) the original affidavit; and (C) a copy of the notice to the defendant, when such notice was required. 16 (7) The secretary of state or a deputy must also transmit to the plaintiff’s attorney a copy of the secretary of state’s or deputy’s affidavit, along with a copy of the notice to the defendant where such notice was required. (8) The secretary of state must keep on file in the secretary of state’s office copies of the following: (A) the summons; (B) the affidavit served on the secretary of state by the clerk of court; and (C) a copy of the affidavit executed and issued by the secretary of state or a deputy. (9) Continuance to Allow Defense. In any of the cases provided for in either this Rule or Rule 4(i), the court in which the claim for relief is pending may order any continuance necessary to afford a reasonable opportunity to defend the action. (q) Amendment. Upon such notice and terms as it deems just, the court in its discretion may allow any process or proof of service thereof to be amended at any time, unless it appears that material prejudice would result to the substantial rights of the party against whom the process issued. (r) Proof of Service. (1) Proving service of the summons and the complaint or notice accompanying the same, if any, must be accomplished as follows: (A) if by the sheriff or other officer, the sheriff’s or other officer’s certificate including the time, date, and place of service; (B) if by any other person, that person’s affidavit; (C) if by publication, an affidavit of the publisher and an affidavit of the deposit of a copy of the summons and complaint in the post office as required by law, if deposited; or (D) the written admission of the defendant showing the date and place of service. (2) If service is made under Rule 4(d)(3), the sender must file with the court the acknowledgment received. (3) Failure to make proof of service does not affect the validity of service. (4) The required affidavit of service must state the time, date, place, and manner of service. When service is by a person other than the sheriff or person designated by law, the affidavit must also state that the person serving is of legal age and knew the 17 person served to be the person named in the papers served and the person intended to be served. (s) Procedure Where Not All Defendants Served. (1) If the summons is served on one or more, but not all, defendants, plaintiff may proceed to trial and judgment against the served defendant(s). (2) At any time thereafter, plaintiff may serve summons to cause the unserved defendant(s) to appear to show cause why the unserved defendant(s) should not be made a party to such judgment. The court must then hear and determine the matter in the same manner as if the unserved defendant(s) had been originally brought into court. The unserved defendant(s) must also be allowed the benefit of any payment or satisfaction made on the recovered judgment. (t) Time Limit for Issuance and Service of Process. (1) A plaintiff must accomplish service within three years after filing a complaint. Absent an appearance by defendant(s), the court, upon motion or on its own initiative, must dismiss an action without prejudice if the plaintiff fails to do so. (2) A plaintiff who names a fictitious defendant in the complaint pursuant to section 25-5-103 may, within three years of filing the original complaint, amend the complaint to substitute a real defendant for the fictitious defendant. The three-year time period set forth in Rule 4(t)(1) begins to run as to the newly identified defendant from the date of the filing of the original complaint. COMMITTEE NOTES The language of Rule 4 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 4(a)(11) was added by the Montana Supreme Court. Rules 4(c)(2)(C) and 4(c)(2)(D) contain language from previous Rules 4D(4) and 4D(5)(h) for the purpose of including all rules regarding the form of a summons in the same rule. The first two sentences of previous Rule 4D(2) have been moved to Rule 4(d)(1) to make the rule more easily understood and to conform to the Federal Rule. Rules 4(i) and 4(j) remove the language in previous Rule 4D(2)(e)(iii), because this language in pertinent part simply repeats the language in Rule 4(i)(3)(B). The language regarding the sheriff in previous Rule 4D(2)(e)(iii) is superfluous. The rule removes the language “organized under the laws of the state, or against a corporation or limited liability company organized under the laws of any other state or 18 country” at the beginning of previous Rule 4D(2)(f), because such language includes all corporations and limited liability companies. The rule adds “any business entity filed in the office of the secretary of state” in the list of entities which constitute business or nonprofit entities for purpose of this rule. Previous Rule 4D(4) has been moved to Rule 4(c)(2)(C) for the purpose of including all the rules regarding the form of a summons in the same rule. Rule 4(d)(3)(C) (acknowledgment of summons) has been changed from 20 to 21 days for the reasons stated in Committee Notes to Rule 6. Rule 4(o) removes the language “whether known or unknown” from previous Rules 4D(5)(a), 4D(5)(a)(i), and 4D(5)(b), because such language includes all defendants. Rule 4(o) moves previous Rule 4D(5)(h) to Rule 4(c)(2)(D) for the purpose of including all rules regarding the form of a summons in the same rule. Rule 4(q) removes the adjective “clearly” to avoid potential ambiguity. Rule 4(r)(3) incorporates the last sentence of previous Rule 4D(8)(e). This change is meant to apply the principle that “failure to make proof of service does not affect the validity of service” to all situations, thereby putting Rule 4(r) in agreement with the Federal Rule. Rule 4(r)(4) incorporates previous Rule 4D(9) to avoid duplication and foster clarity. Rule 4(t) removes reference to issuance of summons in favor of a single deadline regarding service of process for simplicity. For process to be served in three years, summons must also have been issued within three years. Rule 4(t) removes the deadline for the plaintiff to file the summons with the clerk of the court, because the failure to meet this deadline in the rule has no practical effect. NOTE By order entered on December 13, 2016, the Court corrected inadvertently reversed parentheticals in Rule 4(c)(2)(C)(i) and (ii), increased the filing fees in 4(j)(3)(B) and 4(p)(2)(C) to $20, and revised 4(o)(1)(C) for purposes of clarification. Rule 4.1. Limited Representation Permitted -- Process. (a) In accordance with Rule 1.2(c) of the Montana Rules of Professional Conduct, an attorney may undertake to provide limited representation to a person involved in a court proceeding. (b) Providing limited representation of a person under these rules shall not constitute an entry of appearance by the attorney for purposes of Rule 5(b) and does not authorize or require the service or delivery of pleadings, papers, or other documents upon the attorney under Rule 5(b). (c) Representation of the person by the attorney at any proceeding before a judge or other judicial officer on behalf of the person constitutes an entry of appearance, except to the extent that a limited notice of appearance as provided for under Rule 4.2 is filed and 19 served prior to or simultaneous with the actual appearance. Service on an attorney who has made a limited appearance for a party shall be valid only in connection with the specific proceedings for which the attorney appeared, including any hearing or trial at which the attorney appeared and any subsequent motions for presentation of orders. (d) The attorney’s violation of this Rule may subject the attorney to sanctions provided in Rule 11. NOTE The Court enacted Rules 4.1 and 4.2 as Rules 4.2 and 4.3 on March 15, 2011, to take effect on October 1, 2011. Rules 4.1 and 4.2 have been renumbered to fit in with the comprehensive 2011 M. R. Civ. P. revisions. Rule 4.2. Notice of Limited Appearance and Withdrawal as Attorney. (a) Notice of limited appearance. If specifically so stated in a notice of limited appearance filed and served prior to or simultaneous with the proceeding, an attorney’s role may be limited to one or more individual proceedings in the action. (b) At the conclusion of such proceedings the attorney’s role terminates without the necessity of leave of court, upon the attorney filing notice of completion of limited appearance. NOTE The Court enacted Rules 4.1 and 4.2 as Rules 4.2 and 4.3 on March 15, 2011, to take effect on October 1, 2011. Rules 4.1 and 4.2 have been renumbered to fit in with the comprehensive 2011 M. R. Civ. P. revisions. Rule 5. Serving and Filing Pleadings and other Papers. (a) Service: When Required. (1) In General. Unless these rules provide otherwise, each of the following papers must be served on every party: (A) An order stating that service is required; (B) a pleading filed after the original complaint, unless the court orders otherwise under Rule 5(c) because there are numerous defendants; (C) a discovery paper required to be served on a party, unless the court orders otherwise; (D) a written motion and any supporting brief, except one that may be heard ex parte; 20 (E) a written notice, appearance, demand, or offer of judgment, or any similar paper; and (F) briefs, supporting appendices, and supporting affidavits. (2) If a Party Fails to Appear. No service is required on a party who is in default for failing to appear. But a pleading that asserts a new claim for relief against such a party must be served on that party in the manner provided for service under Rule 4. (3) Seizing Property. If an action is begun by seizing property and no person is or need be named as a defendant, any service required before the filing of an appearance, answer, or claim must be made on the person who had custody or possession of the property when it was seized. (b) Service: How Made. (1) Serving an Attorney. If a party is represented by an attorney, service under this rule must be made on the attorney unless the court orders service on the party. (2) Service in General. A paper is served under this rule by: (A) handing it to the person; (B) leaving it: (i) at the person’s office with a clerk or other person in charge or, if no one is in charge, in a conspicuous place in the office; or (ii) if the person has no office or the office is closed, at the person’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; (C) mailing it to the person’s last known address -- in which event service is complete upon mailing; (D) leaving it with the court clerk if the person has no known address; (E) sending it by electronic means if the person consented in writing -- in which event service is complete upon transmission, but is not effective if the serving party learns that it did not reach the person to be served; or (F) delivering it by any other means that the person consented to in writing -- in which event service is complete when the person making service delivers it to the party or agency designated to make delivery. (c) Serving Numerous Defendants. 21 (1) In General. If an action involves an unusually large number of defendants, the court may, on motion or on its own, order that: (A) defendants’ pleadings and replies to them need not be served on other defendants; (B) any crossclaim, counterclaim, avoidance, or affirmative defense in those pleadings and replies to them will be treated as denied or avoided by all other parties; and (C) filing any such pleading and serving it on the plaintiff constitutes notice of the pleading to all parties. (2) Notifying Parties. A copy of every such order must be served on the parties as the court directs. (d) Filing. (1) Required Filings; Certificate of Service. Any paper after the complaint that is required to be served -- together with a certificate of service -- must be filed within a reasonable time after service. But the following discovery requests and responses must not be filed until they are used in the proceeding, ordered by the court in the Rule 16 conference, or the court orders filing: depositions or notices thereof, interrogatories, requests for documents or tangible things or to permit entry onto land, requests for admission, expert disclosure reports, and interrogatory answers. (2) How Filing Is Made -- In General. A paper is filed by delivering it: (A) to the clerk; or (B) to a judge who agrees to accept it for filing, and who must then note the filing date on the paper and promptly send it to the clerk. (3) Electronic Filing, Signing, or Verification. A court may, by local rule, allow papers to be filed, signed, or verified by electronic means, including facsimile, that are consistent with any technical standards established by the court or local rule. A paper filed by electronic means in compliance with a local rule is a written paper for purposes of these rules. (4) Acceptance by the Clerk. The clerk must not refuse to file a paper solely because it is not in the form prescribed by these rules or by a local rule or practice. COMMITTEE NOTES The language of Rule 5 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to 22 make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 5(a)(1)(E) removes the term “designation of record” because it is already addressed in the Appellate Rules. Rule 5(b)(2)(E) has been added to conform to the Federal Rules. It is added in recognition of the practice of service by admission. Rule 5(d)(3) allows for electronic filing, including by facsimile. It follows the Federal Rules. Rule 5.1. Constitutional Challenge to a Statute -- Notice and Intervention. (a) Notice by a Party. A party that files a pleading, written motion, or other paper challenging the constitutionality of a state statute must promptly file a notice of constitutional question stating the question and identifying the paper that raises it, and serve the notice and paper on the state attorney general either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose. (b) Intervention; Final Decision on the Merits. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional. (c) No Forfeiture. A party’s failure to file and serve the notice, or the court’s failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted. COMMITTEE NOTES Rule 5.1, which replaces previous Rule 24(d), has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The Committee decided it was more appropriate to place this Rule at 5.1, consistent with the Federal Rules. Rule 5.2. Privacy Protection for Filings Made With the Court. (a) Redacted Filings. Unless the court orders or the law requires otherwise, in any filing with the court that contains an individual’s social security number, taxpayer identification number, or birth date, or a financial account number, a party or nonparty making the filing must include only: 23 (1) the last four digits of the social security number or taxpayer identification number; (2) the year of the individual’s birth; and (3) the last four digits of the financial account number. (b) Exemptions from the Redaction Requirement. The redaction requirement does not apply to the following: (1) a financial account number that identifies the property allegedly subject to forfeiture in a forfeiture proceeding; (2) the record of an administrative or agency proceeding; (3) the record of a court or tribunal, if that record was not subject to the redaction requirement when originally filed; and (4) a filing covered by Rule 5.2(c). (c) Filings Made Under Seal. The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record. (d) Protective Orders. For good cause, the court may by order in a case: (1) require redaction of additional information; (2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court; or (3) provide other guidance regarding privacy and access consistent with the Rules for Privacy and Public Access to Court Records in Montana. (e) Option for Additional Unredacted Filing under Seal. A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record. (f) Option for Filing a Reference List. A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. 24 (g) Non-conforming Documents. (1) Waiver. A person waives the protection of Rule 5.2(a) as to the person’s own information by filing it without redaction and not under seal. (2) Sanctions. If a party fails to comply with this rule, the court on motion of another party or its own motion may order the pleading or other document to be reformed. If the order is not obeyed, the court may order the document stricken. COMMITTEE NOTES Rule 5.2 is similar to the Federal Rule 5.2, and is consistent with the Rules for Privacy and Public Access to Court Records in Montana. The rule is designed to be a reference point for attorneys and parties seeking guidance on how to handle personal and private information that is included in documents filed with the courts. Rule 5.2 provides instruction on how to redact protected information. For example, only the year of an individual’s birth may be included in a document filed with the court, not the entire birth date. For a social security or financial account number, only the last four digits may be included. Under certain circumstances, a non-redacted document may be included in the court file without the protected information contained in it being made public. Rule 5.2(c) allows the court to order a filing to be made under seal without redaction while Rule 5.2(e) allows a party who makes a redacted filing to also submit a non-redacted document under seal. This is often necessary in family law cases where including information such as social security numbers in key documents is required by federal and state statutes. Rule 5.2(f) provides an alternate method for protecting personal information. A party may submit a reference list under seal that includes a unique identifier to match each item of protected information involved in the case. The party then may use the unique identifier in its filed documents instead of redacting these documents. The Montana Supreme Court has adopted Rules 10(7) and 13(2), M. R. App. P., for confidentiality in filings. Rule 6. Computing and Extending Time; Time for Motion Papers. (a) Computing Time. The following rules apply in computing any time period specified in these rules, or court order, or in any statute that does not specify a method of computing time. (1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time: (A) exclude the day of the event that triggers the period; 25 (B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and (C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2) Period Stated in Hours. When the period is stated in hours: (A) begin counting immediately on the occurrence of the event that triggers the period; (B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and (C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday. (3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible: (A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or (B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday. (4) “Last Day” Defined. Unless a different time is set by a statute or court order, the last day ends: (A) for electronic filing, at midnight in the court’s time zone; and (B) for filing by other means, when the clerk’s office is scheduled to close. (5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. (6) “Legal Holiday” Defined. “Legal holiday” means: (A) the day set aside by statute for observing New Year’s Day, Martin Luther King, Jr. Day, Lincoln’s and Washington’s Birthdays, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day, or state general election day; 26 (B) any day declared a holiday by the President of the United States or by the Governor of this state; and (C) for periods that are measured after an event, any other day declared a holiday by the state. (b) Extending Time. (1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time: (A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or (B) on motion made after the time has expired if the party failed to act because of excusable neglect. (2) Exceptions. The court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b). (c) Motions, Notices of Hearing, and Affidavits. (1) In General. A written motion and notice of the hearing must be served at least 14 days before the time specified for any hearing, with the following exceptions: (A) when the motion may be heard ex parte; (B) when these rules set a different time; or (C) when a court order -- which a party may, for good cause, apply for ex parte - - sets a different time. (2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time. (d) Additional Time after Certain Kinds of Service. When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), or (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a). COMMITTEE NOTES The December 1, 2009 Federal Rule 6 has been adopted almost verbatim (several parts are deleted which apply strictly to the Federal Rule). The Federal rationale for changing the time calculation provisions of Rule 6 is set forth in the following Federal Commission Comment, and has been adopted: 27 Subdivision (a). Subdivision (a) has been amended to simplify and clarify the provisions that describe how deadlines are computed. Subdivision (a) governs the computation of any time period found in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. In accordance with Rule 83(a)(1), a local rule may not direct that a deadline be computed in a manner inconsistent with subdivision (a). The time-computation provisions of subdivision (a) apply only when a time period must be computed. They do not apply when a fixed time to act is set. The amendments thus carry forward the approach taken in Violette v. P.A. Days, Inc., 427 F.3d 1015, 1016 (6th Cir. 2005) (holding that Civil Rule 6(a) “does not apply to situations where the court has established a specific calendar day as a deadline”), and reject the contrary holding of In re American Healthcare Management, Inc., 900 F.2d 827, 832 (5th Cir. 1990) (holding that Bankruptcy Rule 9006(a) governs treatment of date- certain deadline set by court order). If, for example, the date for filing is “no later than November 1, 2007,” subdivision (a) does not govern. But if a filing is required to be made “within 10 days” or “within 72 hours,” subdivision (a) describes how that deadline is computed. Subdivision (a) does not apply when computing a time period set by a statute if the statute specifies a method of computing time. . . . Subdivision (a)(1). New subdivision (a)(1) addresses the computation of time periods that are stated in days. It also applies to time periods that are stated in weeks, months, or years. See, e.g., Rule 60(c)(1). Subdivision (a)(1)(B)’s directive to “count every day” is relevant only if the period is stated in days (not weeks, months or years). Under former Rule 6(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 6(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same day -- and the 10-day period not infrequently ended 28 later than the 14-day period. See Miltimore Sales, Inc. v. Int’l Rectifier, Inc., 412 F.3d 685, 686 (6th Cir. 2005). Under new subdivision (a)(1), all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days -- including intermediate Saturdays, Sundays, and legal holidays -- are counted, with only one exception: If the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday. An illustration is provided below in the discussion of subdivision (a)(5). Subdivision (a)(3) addresses filing deadlines that expire on a day when the clerk’s office is inaccessible. Where subdivision (a) formerly referred to the “act, event, or default” that triggers the deadline, new subdivision (a) refers simply to the “event” that triggers the deadline; this change in terminology is adopted for brevity and simplicity, and is not intended to change meaning. Periods previously expressed as less than 11 days will be shortened as a practical matter by the decision to count intermediate Saturdays, Sundays, and legal holidays in computing all periods. Many of those periods have been lengthened to compensate for the change. See, e.g., Rule 14(a)(1). Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation method -- two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period -- the 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods. Thirty-day and longer periods, however, were generally retained without change. Subdivision (a)(2). New subdivision (a)(2) addresses the computation of time periods that are stated in hours. No such deadline currently appears in the Federal Rules of Civil Procedure. But some statutes contain deadlines stated in 29 hours, as do some court orders issued in expedited proceedings. Under subdivision (a)(2), a deadline stated in hours starts to run immediately on the occurrence of the event that triggers the deadline. The deadline generally ends when the time expires. If, however, the time period expires at a specific time (say, 2:17 p.m.) on a Saturday, Sunday, or legal holiday, then the deadline is extended to the same time (2:17 p.m.) on the next day that is not a Saturday, Sunday, or legal holiday. Periods stated in hours are not to be “rounded up” to the next whole hour. Subdivision (a)(3) addresses situations when the clerk’s office is inaccessible during the last hour before a filing deadline expires. Subdivision (a)(2)(B) directs that every hour be counted. Thus, for example, a 72-hour period that commences at 10:23 a.m. on Friday, November 2, 2007, will run until 9:23 a.m. on Monday, November 5; the discrepancy in start and end times in this example results from the intervening shift from daylight saving time to standard time. Subdivision (a)(3). When determining the last day of a filing period stated in days or a longer unit of time, a day on which the clerk’s office is not accessible because of the weather or another reason is treated like a Saturday, Sunday, or legal holiday. When determining the end of a filing period stated in hours, if the clerk’s office is inaccessible during the last hour of the filing period computed under subdivision (a)(2) then the period is extended to the same time on the next day that is not a weekend, holiday, or day when the clerk’s office is inaccessible. Subdivision (a)(3)’s extensions apply “[u]nless the court orders otherwise.” In some circumstances, the court might not wish a period of inaccessibility to trigger a full 24-hour extension; in those instances, the court can specify a briefer extension. The text of the rule no longer refers to “weather or other conditions” as the reason for the inaccessibility of the clerk’s office. The reference to “weather” was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system. Weather can still be a reason for inaccessibility of the clerk’s office. The rule does not attempt to define inaccessibility. Rather, the concept will continue to develop 30 through case law, see, e.g., William G. Phelps, When Is Office of Clerk of Court Inaccessible Due to Weather or Other Conditions for Purpose of Computing Time Period for Filing Papers Under Rule 6(a) of Federal Rules of Civil Procedure, 135 A.L.R. Fed. 259 (1996) (collecting cases). In addition, many local provisions address inaccessibility for purposes of electronic filing, see, e.g., D. Kan. Rule 5.4.11 (“A Filing User whose filing is made untimely as the result of a technical failure may seek appropriate relief from the court.”). Subdivision (a)(4). New subdivision (a)(4) defines the end of the last day of a period for purposes of subdivision (a)(1). Subdivision (a)(4) does not apply in computing periods stated in hours under subdivision (a)(2), and does not apply if a different time is set by a statute, local rule, or order in the case. . . . Subdivision (a)(5). New subdivision (a)(5) defines the “next” day for purposes of subdivisions (a)(1)(C) and (a)(2)(C). The Federal Rules of Civil Procedure contain both forward-looking time periods and backward-looking time periods. A forward-looking time period requires something to be done within a period of time after an event. See, e.g., Rule 59(b) (motion for new trial “must be filed no later than 28 days after entry of the judgment”). A backward-looking time period requires something to be done within a period of time before an event. See, e.g., Rule 26(f) (parties must hold Rule 26(f) conference “as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b)”). In determining what is the “next” day for purposes of subdivisions (a)(1)(C) and (a)(2)(C), one should continue counting in the same direction -- that is, forward when computing a forward-looking period and backward when computing a backward-looking period. If, for example, a filing is due within 30 days after an event, and the thirtieth day falls on Saturday, September 1, 2007, then the filing is due on Tuesday, September 4, 2007 (Monday, September 3, is Labor Day). But if a filing is due 21 days before an event, and the twenty-first day falls on Saturday, September 1, then the filing is due on Friday, August 31. If the clerk’s office is inaccessible on August 31, then subdivision (a)(3) extends the filing deadline forward to the next accessible day that is not a 31 Saturday, Sunday, or legal holiday -- no later than Tuesday, September 4. Subdivision (a)(6). New subdivision (a)(6) defines “legal holiday” for purposes of the Federal Rules of Civil Procedure, including the time-computation provisions of subdivision (a). Subdivision (a)(6) continues to include within the definition of “legal holiday” days that are declared a holiday by the President or Congress. For forward-counted periods -- i.e., periods that are measured after an event -- subdivision (a)(6)(C) includes certain state holidays within the definition of legal holidays. However, state legal holidays are not recognized in computing backward-counted periods. For both forward- and backward-counted periods, the rule thus protects those who may be unsure of the effect of state holidays. For forward- counted deadlines, treating state holidays the same as federal holidays extends the deadline. Thus, someone who thought that the federal courts might be closed on a state holiday would be safeguarded against an inadvertent late filing. In contrast, for backward-counted deadlines, not giving state holidays the treatment of federal holidays allows filing on the state holiday itself rather than the day before. Take, for example, Monday, April 21, 2008 (Patriot’s Day, a legal holiday in the relevant state). If a filing is due 14 days after an event, and the fourteenth day is April 21, then the filing is due on Tuesday, April 22 because Monday, April 21 counts as a legal holiday. But if a filing is due 14 days before an event, and the fourteenth day is April 21, the filing is due on Monday, April 21; the fact that April 21 is a state holiday does not make April 21 a legal holiday for purposes of computing this backward-counted deadline. But note that if the clerk’s office is inaccessible on Monday, April 21, then subdivision (a)(3) extends the April 21 filing deadline forward to the next accessible day that is not a Saturday, Sunday or legal holiday -- no earlier than Tuesday, April 22. The times set in the former rule at 1 or 5 days have been revised to 7 or 14 days. Montana has deviated from the Federal Rule in two minor respects. First, Rule 6(a) deleted the words “in any local rule” and Rule 6(a)(4) deleted the words “local rule.” For that reason, unlike the Federal Rules, the time calculation procedure provisions of Rule 6 may not be varied by local rules. 32 Rule 6(a)(4)(A) provides for electronic filing until midnight. The Committee expressly recognizes and endorses the existing practice of facsimile filing in Montana as provided in Rule 5(d)(3). However, until a system of electronic filing is adopted for the district courts, the balance of the language of Rule 6(a)(4)(A) should not be interpreted to allow electronic filing other than by facsimile. For that reason, the Committee expressly notes that e-mail and other electronic filing, except for facsimile filing, is not allowed by this Rule until the Montana Supreme Court indicates otherwise through the adoption of some type of electronic filing system for the district courts. Rules 6(a)(4)(A) and 6(a)(4)(B) define the recognized legal holidays. Rule 6(c) has been modified to conform Montana’s Rule to Federal Rule 6(c). This provides that notice of a hearing, if any, must be served at least 14 days before the hearing. Montana substituted the word “any” for “the,” modifying hearing, so there is no implication that a hearing is mandatory. This may need to be harmonized with Uniform District Court Rule 2, “Motions.” TITLE III. Pleadings and Motions Rule 7. Pleadings Allowed; Form of Motions and Other Papers. (a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. 33 (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. COMMITTEE NOTES The language of Rule 7 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Previous Rule 7(c) is deleted because it has done its work. If a motion or pleading is described as a demurrer, plea, or exception for insufficiency, the court will treat the paper as if properly captioned. Rule 7.1. Disclosure Statement. (a) Who Must File; Contents. A nongovernmental corporate party must file and serve a disclosure statement that: (1) identifies any parent corporation and any publicly held corporation owning 10% or more of its stock; or (2) states that there is no such corporation. (b) Time to File; Supplemental Filing. A party must: (1) file and serve the disclosure statement with its first appearance, pleading, petition, motion, response, or other request addressed to the court; and (2) promptly file and serve a supplemental statement if any required information changes. COMMITTEE NOTES Rule 7.1 adopts the relevant language of the Federal Rules of Civil Procedure. Montana did not previously have a current Rule 7.1. Rule 8. General Rules of Pleading. (a) Claim for Relief. A pleading which states a claim for relief must contain: (1) a short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for the relief sought, which may include relief in the alternative or different types of relief. 34 (b) Defenses; Admissions and Denials. (1) In General. In responding to a pleading, a party must: (A) state in short and plain terms its defenses to each claim asserted against it; and (B) admit or deny the allegations asserted by an opposing party. (2) Denials -- Responding to the Substance. A denial must fairly respond to the substance of the allegation. (3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading -- including the jurisdictional grounds -- may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted. (4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest. (5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial. (6) Effect of Failing to Deny. An allegation -- other than one relating to the amount of damages -- is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided. (c) Affirmative Defenses. (1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense including, but not limited to: accord and satisfaction; action on advice of counsel; arbitration and award; assumption of risk; comparative negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; 35 illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver. (2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency. (1) In General. Each allegation must be simple, concise, and direct. No technical form is required. (2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient. (3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency. (e) Construing Pleadings. Pleadings must be construed so as to do justice. COMMITTEE NOTES The language of Rule 8 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 9. Pleading Special Matters. (a) Capacity or Authority to Sue; Legal Existence. (1) In General. A pleading need not allege: (A) a party’s capacity to sue or be sued; 36 (B) a party’s authority to sue or be sued in a representative capacity; or (C) the legal existence of an organized association of persons that is made a party. (2) Raising Those Issues. To raise any of those issues, a party must do so by a specific denial, which must state any supporting facts that are peculiarly within the party’s knowledge. (b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. (c) Conditions Precedent. In pleading conditions precedent, it suffices to allege generally that all conditions precedent have occurred or been performed. But when denying that a condition precedent has occurred or been performed, a party must do so with particularity. (d) Official Document or Act. In pleading an official document or official act, it suffices to allege that the document was legally issued or the act legally done. (e) Judgment. In pleading a judgment or decision of a domestic or foreign court, a judicial or quasi-judicial tribunal, or a board or officer, it suffices to plead the judgment or decision without showing jurisdiction to render it. (f) Time and Place. An allegation of time or place is material when testing the sufficiency of a pleading. (g) Special Damages. If an item of special damage is claimed, it must be specifically stated. COMMITTEE NOTES The language of Rule 9 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and conform them to the recent changes in the Federal Rules. Rule 10. Form of Pleadings. (a) Caption; Names of Parties. Every pleading must have a caption with the court’s name, a title, a file number, and a Rule 7(a) designation. The title of the complaint must name all the parties; the title of other pleadings, after naming the first party on each side, may refer generally to other parties. (b) Paragraphs; Separate Statements. A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. 37 A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence -- and each defense other than a denial -- must be stated in a separate count or defense. (c) Adoption by Reference; Exhibits. A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. COMMITTEE NOTES The language of Rule 10 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and conform them to the recent changes in the Federal Rules. Rule 11. Signing Pleadings, Motions, and other Papers; Representations to the Court; Sanctions. (a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney’s name -- or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number, if any. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or party’s attention. (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper -- whether by signing, filing, submitting, or later advocating it -- an attorney or unrepresented party certifies to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or lack of information. 38 (c) Sanctions. (1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee. (2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney fees, incurred for the motion. (3) On the Court’s Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b). (4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney fees and other expenses directly resulting from the violation. (5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2); or (B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned. (6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction. (d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37. (e) Limited Scope Representation. An attorney may help to draft a pleading, motion, or document filed by an otherwise self-represented person, and the attorney need not sign that pleading, motion, or document. The attorney in providing such drafting assistance 39 may rely on the otherwise self-represented person’s representation of facts, unless the attorney has reason to believe that such representations are false or materially insufficient, in which instance the attorney shall make an independent reasonable inquiry into the facts. COMMITTEE NOTES The language of Rule 11 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 11(a)(2) requires the signor of pleadings to include a telephone number consistent with the revised Federal Rules and most local rules. Rule 11(c)(2) is substantively changed to follow the Federal approach which provides that a sanctions motion must be served but not filed until 21 days after service. This gives the targeted party the chance to withdraw the offending document. The Court adopted the language in Rule 11(e) as part of rule amendments to encourage limited scope representation, by order dated March 15, 2011. It has been renumbered to fit in with the comprehensive 2011 revision of these rules. Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing. (a) Time to Serve a Responsive Pleading. (1) In General. Unless another time is specified by this rule or a statute, the time for serving a responsive pleading is as follows: (A) A defendant must serve an answer within 21 days after being served with the summons and complaint, unless the court orders otherwise under Rule 4(c)(2)(C). (B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim. (C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time. (2) State of Montana and Its Agencies, Officers, or Employees Sued in an Official Capacity. The State of Montana, a state agency, or a state officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the attorney general. (3) State Officers or Employees Sued in an Individual Capacity. A state officer or employee sued in an individual capacity for an act or omission occurring in 40 connection with duties performed on the state’s behalf must serve an answer to a complaint, counterclaim, or crossclaim within 42 days after service on the officer or employee or service on the attorney general, whichever is later. (4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows: (A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or (B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served. (b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion: (1) lack of subject-matter jurisdiction; (2) lack of personal jurisdiction; (3) improper venue; (4) insufficient process; (5) insufficient service of process; (6) failure to state a claim upon which relief can be granted; and (7) failure to join a party under Rule 19. A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion. If a court grants a motion made under subsection (3), any other defenses presented must be decided by the court in the proper venue, and not by the court in which the action is commenced. (c) Motion for Judgment on the Pleadings. After the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings. (d) Result of Presenting Matters outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the 41 court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. (e) Motion for a More Definite Statement. A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order. (f) Motion to Strike. The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act: (1) on its own; or (2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading. (g) Joining Motions. (1) Right to Join. A motion under this rule may be joined with any other motion allowed by this rule. (2) Limitation on Further Motions. Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion. (h) Waiving and Preserving Certain Defenses. (1) When Some Are Waived. A party waives any defense listed in Rule 12(b)(2)- (5) by: (A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or (B) failing to either: (i) make it by motion under this rule; (ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course; or (iii) for the defense of improper venue, show good cause within 21 days of an event providing reason to believe that an impartial trial cannot be 42 had in the county in which the action is commenced under section 25-2- 201(2). (2) When to Raise Others. Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised: (A) in any pleading allowed or ordered under Rule 7(a); (B) by a motion under Rule 12(c); or (C) at trial. (3) Lack of Subject Matter Jurisdiction. If the court determines at any time that it lacks subject matter jurisdiction, the court must dismiss the action. (i) Hearing before Trial. If a party so moves, any defense listed in Rule 12(b)(1)-(7) -- whether made in a pleading or by motion -- and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. COMMITTEE NOTES The language of Rule 12 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The times set in the former Rule at 10 or 20 days have been revised to 14 or 21 days. See Committee Notes to Rule 6. Rule 12(a)(3) is a substantive amendment taken from the 2000 Amendments to the Federal Rules. The Federal Committee Note explains: “Time is needed for the [State] to determine whether to provide representation to the defendant officer or employee. If the [State] provides representation, the need for an extended answer period is the same as in actions against the [State], a [State] agency, or a [State] officer sued in an official capacity.” The time set for the State to answer in Rules 12(a)(2) and (3) is 42 days, following the 7-day increment approach of Rule 6. Rule 12(a)(4) is a clarifying amendment taken from the restyled 2007 Federal Rules. The Federal Committee Note explains: “Former Rule [12(a)] referred to an [action] that postpones disposition of a motion ‘until [] trial on the merits.’ Rule 12(a)(4) now refers to postponing disposition ‘until trial.’ The new expression avoids the ambiguity that inheres in ‘trial on the merits,’ which may become confusing when there is a separate trial of a single issue or another event different from a single all- encompassing trial.” Rule 12(b)(3) reincorporates improper venue as a Rule 12(b) defense, replacing the 1965 Amendment adding subsections 12(b)(i)-(iii), which originally were intended to clarify the procedure for change of venue under section 25-2-201. Subsection (i) was an unnecessary reference to the venue statute, which like other statutory defenses 43 presentable under Rule 12(b) controls regardless of whether it is incorporated into the rules. Subsection (ii) required presentation of “every defense in law or fact” in a change of venue motion, and reserved consideration of those other defenses for the new court if the original court granted the change in venue; Rules 12(g)(2) and 12(h)(1) already require the presentation of all available defenses under 12(b)(2)-(5) in a Rule 12(b) motion under penalty of waiver, and the final sentence of Rule 12(b) retains the reservation of non-venue defenses for the new court. Subsection (iii) repeats the 21-day response requirement applicable to all 12(b) motions, but provides for later change of venue within 21 days after the discovery of reason to believe that an impartial trial cannot be had in the original venue; this exception to the 21-day response rule has been relocated to Rule 12(h), which addresses waiver and preservation of defenses. Rule 12(d), addressing hearings on 12(b) defenses before trial, and Rule 12(i), addressing the conversion of a Rule 12 motion presenting matters outside the pleadings to a Rule 56 motion for summary judgment, have been switched to reflect the usual order in which they may be asserted in a case. This revision conforms with the restyled Federal Rules of Civil Procedure effective December 1, 2007. Rule 13. Counterclaim and Crossclaim. (a) Compulsory Counterclaim. (1) In General. A pleading must state as a counterclaim any claim that -- at the time of its service -- the pleader has against an opposing party if the claim: (A) arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim; and (B) does not require adding another party over whom the court cannot acquire jurisdiction. (2) Exceptions. The pleader need not state the claim if: (A) when the action was commenced, the claim was the subject of another pending action; or (B) the opposing party sued on its claim by attachment or other process that did not establish personal jurisdiction over the pleader on that claim, and the pleader does not assert any counterclaim under this rule. (b) Permissive Counterclaims. A pleading may state as a counterclaim against an opposing party any claim that is not compulsory. (c) Relief Sought in a Counterclaim. A counterclaim need not diminish or defeat the recovery sought by the opposing party. It may request relief that exceeds in amount or differs in kind from the relief sought by the opposing party. 44 (d) Counterclaim against the State. These rules do not expand the right to assert a counterclaim -- or to claim a credit -- against the State of Montana or a state officer or agency. (e) Counterclaim Maturing or Acquired after Pleading. The court may permit a party to file a supplemental pleading asserting a counterclaim that matured or was acquired by the party after serving an earlier pleading. (f) [Abrogated.] (g) Crossclaim against a Coparty. A pleading may state as a crossclaim any claim by one party against a coparty if the claim arises out of the transaction or occurrence that is the subject matter of the original action or of a counterclaim, or if the claim relates to any property that is the subject matter of the original action. The crossclaim may include a claim that the coparty is or may be liable to the crossclaimant for all or part of a claim asserted in the action against the crossclaimant. (h) Joining Additional Parties. Rules 19 and 20 govern the addition of a person as a party to a counterclaim or crossclaim. (i) Separate Trials; Separate Judgments. If the court orders separate trials under Rule 42(b), it may enter judgment on a counterclaim or crossclaim under Rule 54(b) when it has jurisdiction to do so, even if the opposing party’s claims have been dismissed or otherwise resolved. COMMITTEE NOTES The language of Rule 13 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 13(b) is a clarifying amendment taken from the restyled 2007 Federal Rules. The Federal Committee Note explains: “The meaning of former Rule 13(b) is better expressed by deleting ‘not arising out of the transaction or occurrence that is the subject matter of the opposing party’s claim.’ Both as a matter of intended meaning and current practice, a party may state as a permissive counterclaim a claim that does not grow out of the same transaction or occurrence as an opposing party’s claim even though one of the exceptions in Rule 13(a) means the claim is not a compulsory counterclaim.” The Committee followed the Federal lead in deleting Rule 13(f) as redundant of Rule 15 and potentially confusing because of that. The following Federal Comment to the 2009 Amendment to Rule 13 explains the purpose of the deletion: Rule 13(f) is deleted as largely redundant and potentially misleading. An amendment to add a counterclaim will be governed by Rule 15. Rule 15(a)(1) permits some 45 amendments to be made as a matter of course or with the opposing party’s written consent. When the court’s leave is required, the reasons described in Rule 13(f) for permitting amendment of a pleading to add an omitted counterclaim sound different from the general amendment standard in Rule 15(a)(2), but seem to be administered -- as they should be -- according to the same standard directing that leave should be freely given when justice so requires. The independent existence of Rule 13(f) has, however, created some uncertainty as to the availability of relation back of the amendment under Rule 15(c). See 6 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 2d, § 1430 (1990). Deletion of Rule 13(f) ensures that relation back is governed by the tests that apply to all other pleading amendments. The Committee recommends that, in order to conform to the Federal numbering and lettering system as closely as possible, Rule 13(f) will maintain its place as 13(f) in the Rule but with the simple indication of “Abrogated.” Rules 13(g), (h), and (i) remain as lettered. Rule 14. Third-Party Practice. (a) When a Defending Party May Bring in a Third Party. (1) Timing of the Summons and Complaint. A defending party may, as third- party plaintiff, serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it. But the third-party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer. (2) Third-Party Defendant’s Claims and Defenses. The person served with the summons and third-party complaint -- the “third-party defendant”: (A) must assert any defense against the third-party plaintiff’s claim under Rule 12; (B) must assert any counterclaim against the third-party plaintiff under Rule 13(a), and may assert any counterclaim against the third-party plaintiff under Rule 13(b) or any crossclaim against another third-party defendant under Rule 13(g); (C) may assert against the plaintiff any defense that the third-party plaintiff has to the plaintiff’s claim; and 46 (D) may also assert against the plaintiff any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third- party plaintiff. (3) Plaintiff’s Claims against a Third-Party Defendant. The plaintiff may assert against the third-party defendant any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff. The third-party defendant must then assert any defense under Rule 12 and any counterclaim under Rule 13(a), and may assert any counterclaim under Rule 13(b) or any crossclaim under Rule 13(g). (4) Motion to Strike, Sever, or Try Separately. Any party may move to strike the third-party claim, to sever it, or to try it separately. (5) Third-Party Defendant’s Claim against a Nonparty. A third-party defendant may proceed under this rule against a nonparty who is or may be liable to the third- party defendant for all or part of any claim against it. (b) When a Plaintiff May Bring in a Third Party. When a claim is asserted against a plaintiff, the plaintiff may bring in a third party if this rule would allow a defendant to do so. COMMITTEE NOTES The language of Rule 14 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. To conform to the Federal Rule, the time in Rule 14(a)(1) has been changed from 30 to 14 days (the time in which a third party plaintiff must, by motion, obtain the court’s leave if it files the third-party complaint after serving its original answer). Rules 13(a)(2)(B) and (a)(3) contain clarifying amendments taken from the restyled 2007 Federal Rules. The Federal Committee Note explains: “Former Rule 14 twice refers to counterclaims under Rule 13. In each case, the operation of Rule 13(a) depends on the state of the action at the time the pleading is filed. If plaintiff and third- party defendant have become opposing parties because one has made a claim for relief against the other, Rule 13(a) requires assertion of any counterclaim that grows out of the transaction or occurrence that is the subject matter of that claim. Rules 14(a)(2)(B) and (a)(3) reflect the distinction between compulsory and permissive counterclaims.” Rule 14(b) contains a “style-substance” amendment changing the term “counterclaim” to “claim” taken from the restyled 2007 Federal Rules. The Federal Committee Note explains: “A plaintiff should be on equal footing with the defendant in making third-party claims, whether the claim against the plaintiff is asserted as a counterclaim or as another form of claim. The limit imposed by the former reference to ‘counterclaim’ is deleted.” 47 Rule 15. Amended and Supplemental Pleadings. (a) Amendments before Trial. (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it; or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. (2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires. (3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later. (b) Amendments During and After Trial. (1) Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence. (2) For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move -- at any time, even after judgment -- to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue. (c) Relation Back of Amendments. (1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when: (A) the law that provides the applicable statute of limitations allows relation back; 48 (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading; or (C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(t) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity. (2) Notice to the State of Montana and Other Public Bodies. When the State of Montana, local government, or a state or local officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was served as provided by Rule 4(k) and (l). (d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time. COMMITTEE NOTES Rule 15 of the Federal Rules was substantially modified and Montana has elected to follow these Federal modifications. The Federal Committee Comment to Rule 15, which explains the changes and the rationale, is as follows: Rule 15(a)(1) is amended to make three changes in the time allowed to make one amendment as a matter of course. Former Rule 15(a) addressed amendment of a pleading to which a responsive pleading is required by distinguishing between the means used to challenge the pleading. Serving a responsive pleading terminated the right to amend. Serving a motion attacking the pleading did not terminate the right to amend, because a motion is not a “pleading” as defined in Rule 7. The right to amend survived beyond decision of the motion unless the decision expressly cut off the right to amend. 49 The distinction drawn in former Rule 15(a) is changed in two ways. First, the right to amend once as a matter of course terminates 21 days after service of a motion under Rule 12(b), (e), or (f). This provision will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the motion. A responsive amendment may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim. It also should advance other pretrial proceedings. Second, the right to amend once as a matter of course is no longer terminated by service of a responsive pleading. The responsive pleading may point out issues that the original pleader had not considered and persuade the pleader that amendment is wise. Just as amendment was permitted by former Rule 15(a) in response to a motion, so the amended rule permits one amendment as a matter of course in response to a responsive pleading. The right is subject to the same 21- day limit as the right to amend in response to a motion. The 21-day periods to amend once as a matter of course after service of a responsive pleading or after service of a designated motion are not cumulative. If a responsive pleading is served after one of the designated motions is served, for example, there is no new 21-day period. Finally, amended Rule 15(a)(1) extends from 20 to 21 days the period to amend a pleading to which no responsive pleading is allowed and omits the provision that cuts off the right if the action is on the trial calendar. Rule 40 no longer refers to a trial calendar, and many courts have abandoned formal trial calendars. It is more effective to rely on scheduling orders or other pretrial directions to establish time limits for amendment in the few situations that otherwise might allow one amendment as a matter of course at a time that would disrupt trial preparations. Leave to amend still can be sought under Rule 15(a)(2), or at and after trial under Rule 15(b). Amended Rule 15(a)(3) extends from 10 to 14 days the period to respond to an amended pleading. Abrogation of Rule 13(f) establishes Rule 15 as the sole rule governing amendment of a pleading to add a counterclaim. 50 . . . . The times set in the former rule at 10 or 20 days have been revised to 14 or 21 days. See the Note to Rule 6. Rule 15(c)(1)(C)(i) is a clarifying amendment taken from the restyled 2007 Federal Rules. The Federal Committee Note explains: “Former Rule 15(c)(3)(A) called for notice of the ‘institution’ of the action. Rule 15(c)(1)(C)(i) omits the reference to ‘institution’ as potentially confusing. What counts is that the party to be brought in has notice of the existence of the action, whether or not the notice includes details as to its ‘institution.’” Rule 16. Pretrial Conferences; Scheduling; Management. (a) Purposes of a Pretrial Conference. In any action, the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences for such purposes as: (1) expediting disposition of the action; (2) establishing early and continuing control so that the case will not be protracted because of lack of management; (3) discouraging wasteful pretrial activities; (4) improving the quality of the trial through more thorough preparation; and (5) facilitating settlement. (b) Scheduling. (1) Scheduling Order. Upon request by a party, except in categories of actions exempted by district court rule, the judge must issue a scheduling order after consulting with the parties’ attorneys and any unrepresented parties at a scheduling conference or by telephone, mail, or other means. (2) Time to Issue. The judge must issue the scheduling order as soon as practicable, but in any event within 90 days of a request by a party. (3) Contents of the Order. (A) Required Contents. The scheduling order must limit the time to join other parties, amend the pleadings, complete discovery, and file motions. (B) Permitted Contents. The scheduling order may: 51 (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); (ii) modify the extent of discovery; (iii) provide for disclosure or discovery of electronically stored information; (iv) include any agreements the parties reach for asserting claims of privilege or of protection as trial-preparation material after information is produced; (v) set dates for pretrial conferences and for trial; and (vi) include other appropriate matters. (4) Modifying a Schedule. A schedule may be modified only for good cause and with the judge’s consent. (c) Attendance and Matters for Consideration at a Pretrial Conference. (1) Attendance. A represented party must authorize at least one of its attorneys to make stipulations and admissions about all matters that can reasonably be anticipated for discussion at a pretrial conference. If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement. (2) Matters for Consideration. At any pretrial conference, the court may consider and take appropriate action on the following matters: (A) formulating and simplifying the issues, and eliminating frivolous claims or defenses; (B) amending the pleadings if necessary or desirable; (C) obtaining admissions and stipulations about facts and documents to avoid unnecessary proof, and ruling in advance on the admissibility of evidence; (D) avoiding unnecessary proof and cumulative evidence, and limiting the use of testimony under M. R. Evid. 702; (E) determining the appropriateness and timing of summary adjudication under Rule 56; (F) controlling and scheduling discovery, including orders affecting disclosures and discovery under Rule 26 and Rules 29 through 37; (G) identifying witnesses and documents, scheduling the filing and exchange of any pretrial briefs, and setting dates for further conferences and for trial; (H) referring matters to a master; 52 (I) settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule; (J) determining the form and content of the pretrial order; (K) disposing of pending motions; (L) adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems; (M) ordering a separate trial under Rule 42(b) of a claim, counterclaim, crossclaim, third-party claim, or particular issue; (N) ordering the presentation of evidence early in the trial on a manageable issue that might, on the evidence, be the basis for a judgment as a matter of law under Rule 50(a) or a judgment on partial findings under Rule 52(c); (O) establishing a reasonable limit on the time allowed to present evidence; and (P) the time for submission of proposed findings of fact and conclusions of law in a non-jury action, or proposed instructions to the jury and the form of verdict in a jury action; and (Q) facilitating in other ways the just, speedy, and inexpensive disposition of the action. (d) Pretrial Orders. After any conference under this rule, the court should issue an order reciting the action taken. This order controls the course of the action unless the court modifies it. (e) Final Pretrial Conference and Orders. The court may hold a final pretrial conference to formulate a trial plan, including a plan to facilitate the admission of evidence. The conference must be held as close to the start of trial as is reasonable, and must be attended by at least one attorney who will conduct the trial for each party and by any unrepresented party. The court may modify the order issued after a final pretrial conference only to prevent manifest injustice. (f) Sanctions. (1) In General. On motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party or its attorney: (A) fails to appear at a scheduling or other pretrial conference; (B) is substantially unprepared to participate -- or does not participate in good faith -- in the conference; or 53 (C) fails to obey a scheduling or other pretrial order. (2) Imposing Fees and Costs. Instead of or in addition to any other sanction, the court must order the party, its attorney, or both to pay the reasonable expenses -- including attorney fees -- incurred because of any noncompliance with this rule, unless the noncompliance was substantially justified or other circumstances make an award of expenses unjust. COMMITTEE NOTES The language of Rule 16 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 16(b)(2) contains a substantive amendment drafted by the Committee. The amendment replaces the judge’s duty to issue a scheduling order 120 days after filing a complaint with a party’s right to request a scheduling order that must issue 90 days after the request. The purpose of the amendment is to allow each party to assess the need and timing for a scheduling order, and to avoid premature issuance of a scheduling order when the parties agree such an order is not yet necessary. Rules 16(b)(3)(iv) and 16(c)(2)(D)-(F), (M)-(P) contain a substantive but non- binding amendment taken from the 2006 and 1993 Amendments to the Federal Rules, respectively. The 1993 Federal Committee Note explains: “The primary purposes of the changes in subdivision (c) are to call attention to the opportunities for structuring of trial under Rules 42, 50, and 52 and to eliminate questions that have occasionally been raised regarding the authority of the court to make appropriate orders designed either to facilitate settlement or to provide for an efficient and economical trial.” Rule 16(c)(1) contains a substantive amendment taken from the 1993 and 2007 Amendments to the Federal Rules. The 1993 Federal Committee Note explains in part: “[I]ndeed, a conference is most effective and productive when the parties participate in a spirit of cooperation and mindful of their responsibilities under Rule 1.” Rules 16(d) and 16(e) have been switched to reflect the usual order in which they arise. TITLE IV. Parties Rule 17. Plaintiff and Defendant; Capacity; Public Officers. (a) Real Party in Interest. (1) Designation in General. An action must be prosecuted in the name of the real party in interest. The following may sue in their own names without joining the person for whose benefit the action is brought: 54 (A) an executor; (B) an administrator; (C) a guardian; (D) a bailee; (E) a trustee of an express trust; (F) a party with whom or in whose name a contract has been made for another’s benefit; and (G) a party authorized by statute. (2) Action in the Name of the State of Montana for Another’s Use or Benefit. When a state statute so provides, an action for another’s use or benefit must be brought in the name of the State of Montana. (3) Joinder of the Real Party in Interest. The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest. (b) Capacity to Sue or be Sued. Capacity to sue or be sued is determined by appropriate statutory provisions. (c) Minor or Incompetent Person. (1) With a Representative. The following representatives may sue or defend on behalf of a minor or an incompetent person: (A) a general guardian; (B) a committee; (C) a conservator; or (D) a like fiduciary. (2) Without a Representative. A minor or an incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court must appoint a guardian ad litem -- or issue another appropriate order -- to protect a minor or incompetent person who is unrepresented in an action. 55 (d) Public Officer’s Title and Name. A public officer who sues or is sued in an official capacity may be designated by official title rather than by name, but the court may order that the officer’s name be added. COMMITTEE NOTES The language of Rule 17 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 17(d) incorporates the provisions of previous Rule 25(d)(2), which fit better with Rule 17. Rule 18. Joinder of Claims. (a) In General. A party asserting a claim, counterclaim, crossclaim, or third-party claim may join, as independent or alternative claims, as many claims as it has against an opposing party. (b) Joinder of Contingent Claims. A party may join two claims even though one of them is contingent on the disposition of the other; but the court may grant relief only in accordance with the parties’ relative substantive rights. In particular, a plaintiff may state a claim for money and a claim to set aside a conveyance that is fraudulent as to that plaintiff, without first obtaining a judgment for the money. In tort cases, this rule does not allow a liability or indemnity insurance carrier to join, unless under law or a contract the carrier is directly liable to the person injured or damaged. COMMITTEE NOTES The language of Rule 18 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The final sentence in Rule 18(b) restates a limitation on joinder in tort cases by insurance carriers that has no counterpart in the Federal Rules. Rule 19. Required Joinder of Parties. (a) Persons Required to be Joined if Feasible. (1) Required Party. A person who is subject to service of process must be joined as a party if: (A) in that person’s absence, the court cannot accord complete relief among existing parties; or 56 (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person’s absence may: (i) as a practical matter impair or impede the person’s ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. (2) Joinder by Court Order. If a person has not been joined as required, the court must order that the person be made a party. A person who refuses to join as a plaintiff may be made either a defendant or, in a proper case, an involuntary plaintiff. (3) Venue. If a joined party objects to venue and the joinder would make venue improper, the court must dismiss that party. (b) When Joinder is not Feasible. If a person who is required to be joined if feasible cannot be joined, the court must determine whether, in equity and good conscience, the action should proceed among the existing parties or should be dismissed. The factors for the court to consider include: (1) the extent to which a judgment rendered in the person’s absence might prejudice that person or the existing parties; (2) the extent to which any prejudice could be lessened or avoided by: (A) protective provisions in the judgment; (B) shaping the relief; or (C) other measures; (3) whether a judgment rendered in the person’s absence would be adequate; and (4) whether the plaintiff would have an adequate remedy if the action were dismissed for nonjoinder. (c) Pleading the Reasons for Nonjoinder. When asserting a claim for relief, a party must state: (1) the name, if known, of any person who is required to be joined if feasible but is not joined; and (2) the reasons for not joining that person. 57 (d) Exception for Class Actions. This rule is subject to Rule 23. COMMITTEE NOTES The language of Rule 19 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 20. Permissive Joinder of Parties. (a ) Persons Who May Join or Be Joined. (1) Plaintiffs. Persons may join in one action as plaintiffs if: (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action. (2) Defendants. Persons may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. (3) Extent of Relief. Neither a plaintiff nor a defendant need be interested in obtaining or defending against all the relief demanded. The court may grant judgment to one or more plaintiffs according to their rights, and against one or more defendants according to their liabilities. (b ) Protective Measures. The court may issue orders -- including an order for separate trials -- to protect a party against embarrassment, delay, expense, or other prejudice that arises from including a person against whom the party asserts no claim and who asserts no claim against the party. COMMITTEE NOTES The language of Rule 20 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. 58 Rule 21. Misjoinder and Non-Joinder of Parties. Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. COMMITTEE NOTES The language of Rule 21 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 22. Interpleader. (a) Joinder, cross-claim, or counterclaim. (1) By a Plaintiff. Persons with claims that may expose a plaintiff to double or multiple liability may be joined as defendants and required to interplead. Joinder for interpleader is proper even though: (A) the claims of the several claimants, or the titles on which their claims depend, lack a common origin or are adverse and independent rather than identical; or (B) the plaintiff denies liability in whole or in part to any or all of the claimants. (2) By a Defendant. A defendant exposed to similar liability may seek interpleader through a crossclaim or counterclaim. (b) Substitution. (1) Grounds. A defendant in a contract or property action may substitute as the defendant a person who is not a party and who demands the same debt or property at issue in the action, upon motion made: (A) before the defendant files an answer; (B) with due notice to the person not a party and to the plaintiff; and (C) upon affidavit that a person not a party to the action: (i) makes against the defendant a demand for the same debt or property, and (ii) is not colluding with the defendant. 59 (2) Deposit of Debt or Delivery of Property. A defendant substituted under this rule must, at the court’s discretion, either: (A) deposit in court the amount of the debt at issue; or (B) deliver the property at issue or its value to such person as the court may direct. (3) Discharge of Liability. A defendant’s deposit of debt or delivery of property under subsection (b)(2) discharges the defendant’s liability to either the plaintiff or the substitute defendant. COMMITTEE NOTES The language of Rule 22 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 22(b) restates a procedure for interpleading a substitute defendant by deposit of property at issue that has no counterpart in the Federal Rules. RULE 23. Class Actions. (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or 60 (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to the class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to the findings include: (A) the class members’ interests in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. (c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses. (1) Certification Order. (A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action. (B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). (C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment. (2) Notice. (A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class. 61 (B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action; (ii) the definition of the class certified; (iii) the class claims, issues, or defenses; (iv) that a class member may enter an appearance through an attorney if the member so desires; (v) that the court will exclude from the class any member who requests exclusion; (vi) the time and manner for requesting exclusion; and (vii) the binding effect of a class judgment on members under Rule 23(c)(3). (3) Judgment. Whether or not favorable to the class, the judgment in a class action must: (A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and (B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members. (4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues. (5) Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule. (d) Conducting the Action. (1) In General. In conducting an action under this rule, the court may issue orders that: (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument; 62 (B) require -- to protect class members and fairly conduct the action -- giving appropriate notice to some or all class members of: (i) any step in the action; (ii) the proposed extent of the judgment; or (iii) the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise come into the action; (C) impose conditions on the representative parties or on intervenors; (D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or (E) deal with similar procedural matters. (2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16. (e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court’s approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise: (1) The court must direct notice in a reasonable manner to all class members who would be bound by the proposal. (2) If the proposal would bind class members, the court may approve it only after a hearing on finding that it is fair, reasonable, and adequate. (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal. (4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so. (5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court’s approval. (f) Appeals. Appeal may be filed from an order granting or denying class action certification under this rule, or an order finally and definitively rejecting a proposed class settlement, by notice of appeal filed within the time allowed for appeals under the 63 Montana Rules of Appellate Procedure. An appeal does not stay proceedings in the district court unless the district judge or supreme court so orders. (g) Class Counsel. (1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court: (A) may consider: (i) the work counsel has done in identifying or investigating potential claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation, and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law; and (iv) the resources that counsel will commit to representing the class; (B) may consider any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class; (C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; (D) may include in the appointing order provisions about the award of attorney fees or nontaxable costs under Rule 23(h); and (E) may make further orders in connection with the appointment. (2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class. (3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action. (4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class. (h) Attorney Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney fees and nontaxable costs that are authorized by law or by the parties’ agreement. The following procedures apply: 64 (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner. (2) A class member, or a party from whom payment is sought, may object to the motion. (3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a). (i) Disposition of Residual Funds. (1) “Residual Funds” are funds that remain after the payment of all approved class member claims, expenses, litigation costs, attorneys’ fees and other court-approved disbursements. This rule does not prohibit the trial court from approving a settlement that does not create residual funds. (2) “Access to Justice Organization” means a Montana non-profit entity whose purpose is to support activities and programs that promote access to the Montana civil justice system. (3) Any order entering a judgment or approving a proposed compromise of a class action certified under this rule that establishes a process for identifying and compensating members of the class shall provide for disbursement of residual funds. In matters where the claims process has been exhausted and residual funds remain, not less than fifty percent (50%) of the residual funds shall be disbursed to an Access to Justice Organization to support activities and programs that promote access to the Montana civil justice system. The court may disburse the balance of any residual funds beyond the minimum percentage to an Access to Justice Organization or to another non-profit entity for purposes that have a direct or indirect relationship to the objectives of the underlying litigation or otherwise promote the substantive or procedural interests of members of the certified class. COMMITTEE NOTES The language of Rule 23 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are substantive and are intended to follow the Federal Class Action Rule. The most significant changes are in Rules 24(f), (g), and (h) which are addressed below. Rule 23(f)(1) follows Federal Rule 23(f) which governs the taking of an appeal from the order of the district court granting or denying class action certification. There was no previous Montana counterpart to this Rule. Rule 23(f)(2), regarding appeal from 65 an order rejecting a proposed class settlement, does not have a counterpart in the Federal Rules, but is based on the recommendation of the American Law Institute, Committee on Aggregate Litigation, Principles of the Law of Aggregate Litigation, Discussion Draft 2, section 3.12. Federal Rule 23(f)(1) allows an interlocutory appeal in 10 days. Despite the Rule 6 changes to follow 7-day increments with respect to time calculation in most Rules, the 10-day period of the Federal Rule was not changed because such change would have necessitated a companion statutory change. There is no statutory constraint in Montana. For that reason, Montana has followed the 7-day increment approach so that Rules 23(f)(1) and (2) have 14-day interlocutory appeal periods, not 10 as in the Federal Rule. Rules 23(g) and (h) govern the important subjects of appointment of class counsel and payment of attorney fees and costs to class counsel. Previous Rule 23 did not speak to these two subjects, which is a glaring omission. The appointment of class counsel and the award of fees and costs to class counsel are obviously important subjects that must be addressed in Rule 23. Rule 23.1. Derivative Actions. (a) Prerequisites. This rule applies when one or more shareholders or members of a corporation or an unincorporated association bring a derivative action to enforce a right that the corporation or association may properly assert but has failed to enforce. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of shareholders or members who are similarly situated in enforcing the right of the corporation or association. (b) Pleading Requirements. The complaint must be verified and must: (1) allege that the plaintiff was a shareholder or member at the time of the transaction complained of, or that the plaintiff’s share or membership later devolved on it by operation of law; (2) allege that the action is not a collusive one to confer jurisdiction that the court would otherwise lack; and (3) state with particularity: (A) any effort by the plaintiff to obtain the desired action from the directors or comparable authority and, if necessary, from the shareholders or members; and (B) the reasons for not obtaining the action or not making the effort. (c) Settlement, Dismissal, and Compromise. A derivative action may be settled, voluntarily dismissed, or compromised only with the court’s approval. Notice of a 66 proposed settlement, voluntary dismissal, or compromise must be given to shareholders or members in the manner that the court orders. COMMITTEE NOTES The language of Rule 23.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 23.2. Actions Relating to Unincorporated Associations. This rule applies to an action brought by or against the members of an unincorporated association as a class by naming certain members as representative parties. The action may be maintained only if it appears that those parties will fairly and adequately protect the interests of the association and its members. In conducting the action, the court may issue any appropriate orders corresponding with those in Rule 23(d), and the procedure for settlement, voluntary dismissal, or compromise must correspond with the procedure in Rule 23(e). COMMITTEE NOTES The language of Rule 23.2 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 24. Intervention. (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: (1) is given an unconditional right to intervene by statute; or (2) claims an interest relating to the property or transaction which is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless the existing parties adequately represent that interest. (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: (A) is given a conditional right to intervene by statute; or (B) has a claim or defense that shares with the main action a common question of law or fact. 67 (2) By a Government Officer or Agency. On timely motion, the court may permit a state governmental officer or agency to intervene if a party’s claim or defense is based on: (A) a statute or executive order administered by the officer or agency; or (B) any regulation, order, requirement, or agreement issued or made under the statute or executive order. (3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. (c) Notice and Pleading Required. A motion to intervene must be served on the parties as provided in Rule 5. The motion must state the grounds for intervention and be accompanied by a pleading that sets out the claim or defense for which intervention is sought. COMMITTEE NOTES The language of Rule 24 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Previous Rule 24, subsections (a), (b), and (c), are the same as the previous Federal rule counterparts. Previous Rule 24(d) requiring notice to the Montana Attorney General in cases involving the constitutionality of a Montana statute has been transferred to Rule 5.1 and restyled to conform to the Federal Rules, both in number and style. Rule 25. Substitution of Parties. (a) Death. (1) Substitution if the Claim is not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within a reasonable time after service of a statement noting the death, the action by or against the decedent may be dismissed. (2) Continuation among the Remaining Parties. After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record. 68 (3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in Rule 5 and on nonparties as provided in Rule 4. A statement noting the death must be served in the same manner. (b) Incompetency. If a party becomes incompetent, the court may, on motion, permit the action to be continued by or against the party’s representative. The motion must be served as provided in Rule 25(a)(3). (c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in Rule 25(a)(3). (d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. COMMITTEE NOTES The language of Rule 25 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. TITLE V. Depositions and Discovery Rule 26. General Provisions Governing Discovery. (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. (b) Discovery Scope and Limits. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other 69 tangible things and the identity and location of persons who know of any discoverable matter. The information sought need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C). (2) Limitations on Frequency and Extent. (A)When Permitted. By order, the court may alter the limits in these rules on the number of depositions and interrogatories or on the length of depositions under Rule 30. By order or local rule, the court may also limit the number of requests under Rule 36. (B) Specific Limitations on Electronically-Stored Information. A party need not provide discovery of electronically-stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (C) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. (3) Trial Preparation: Materials. (A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if: 70 (i) they are otherwise discoverable under Rule 26(b)(1); and (ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. (B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation. (C) Previous Statement. Any party or other person may, on request and without the required showing, obtain the person’s own previous statement about the action or its subject matter. If the request is refused, the person may move for a court order, and Rule 37(a)(5) applies to the award of expenses. A previous statement is either: (i) a written statement that the person has signed or approved; or (ii) a contemporaneous stenographic, mechanical, electrical, or other recording -- or a transcription of it -- that recites substantially verbatim the person’s oral statement. (4) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (ii) A party may depose any person who has been identified as an expert whose opinions may be presented at trial. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subdivision (b)(4)(C) of this rule, concerning fees and expenses as the court may deem appropriate. (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of 71 exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means. (C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule, the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule, the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. (5) Insurance Agreements. A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. Information concerning the insurance agreement is not by reason of disclosure admissible in evidence at trial. For purposes of this paragraph, an application for insurance shall not be treated as part of an insurance agreement. (6) Claiming Privilege or Protecting Trial-Preparation Materials. (A) Information Withheld. When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or things not produced or disclosed -- and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim. (B) Information Produced. If information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a 72 determination of the claim. The producing party must preserve the information until the claim is resolved. (c) Protective Orders. (1) In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending -- or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the discovery; (B) specifying terms, including time and place, for the discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; (D) forbidding inquiry into certain matters, or limiting the scope of discovery to certain matters; (E) designating the persons who may be present while the discovery is conducted; (F) requiring that a deposition be sealed and opened only on court order; (G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way; and (H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs. (2) Ordering Discovery. If a motion for protective order is wholly or partly denied, the court may, on just terms, order that any party or person provide or permit discovery. (3) Awarding Expenses. Rule 37(a)(5) applies to the award of expenses. (d) Sequence and Timing of Discovery. Unless, on motion, the court orders otherwise for the parties’ and witnesses’ convenience and in the interests of justice: (1) methods of discovery may be used in any sequence; and 73 (2) discovery by one party does not require any other party to delay its discovery. (e) Supplementing Responses. (1) In General. A party who has responded to an interrogatory, request for production, or request for admission must supplement or correct its response: (A) in a timely manner if the party learns that in some material respect the response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing; or (B) as ordered by the court. (2) Expert witness. For an expert whose opinion is produced in response to an interrogatory served under Rule 26(b)(4), the party’s duty to supplement extends both to information included in the response and to information given during the expert’s deposition. Any additions or changes to this information must be disclosed by the time of the preparation and submission of the pretrial order to the court. (f) Discovery Conference. At any time after commencement of an action, the court may direct the attorneys for the parties to appear before it for a conference on the subject of discovery. The court shall do so upon motion by the attorney for any party if the motion includes: (1) a statement of the issues as they then appear; (2) a proposed plan and schedule of discovery; (3) any limitations proposed to be placed on discovery; (4) any issues relating to discovery of electronically-stored information, including the form or forms in which it should be produced; (5) any other proposed orders with respect to discovery; and (6) a statement showing that the attorney making the motion has made a reasonable effort to reach agreement with opposing attorneys in the matters set forth in the motion. Each party and each party’s attorney are under a duty to participate in good faith in the framing of a discovery plan if a plan is proposed by the attorney for any party. Notice of the motion shall be served on all parties. Objections or additions to matters set forth in the motion shall be served not later than 14 days after service of the motion. 74 Following the discovery conference, the court shall enter an order tentatively identifying the issues for discovery purposes, establishing a plan and schedule for discovery, including resolution of issues relating to the discovery of electronically-stored information, including the form or forms in which it should be produced, setting limitations on discovery, if any; and determining such other matters, including the allocation of expenses, as are necessary for the proper management of discovery in the action. An order may be altered or amended whenever justice so requires. (g) Signing Disclosures and Discovery Requests, Responses, and Objections. (1) Signature Required; Effect of Signature. Every discovery request, response, or objection must be signed by at least one attorney of record in the attorney’s own name – or by the party personally, if unrepresented – and must state the signer’s address. By signing, an attorney or party certifies that to the best of the person’s knowledge, information, and belief formed after a reasonable inquiry, it is: (A) consistent with these rules and warranted by existing law or by a good faith argument for extending, modifying, or reversing existing law; (B) not interposed for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; and (C) neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action. (2) Failure to Sign. Other parties have no duty to act on an unsigned request, response, or objection until it is signed, and the court must strike it unless a signature is promptly supplied after the omission is called to the attorney’s or party’s attention. (3) Sanction for Improper Certification. If a certification violates this rule without substantial justification, the court, on motion or on its own, must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney fees, caused by the violation. COMMITTEE NOTES 75 The language of Rule 26 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 26 is adopted from Rule 26 of the Federal Rules of Civil Procedure with several important distinctions, particularly in the area of automatic preliminary pretrial disclosures and expert disclosures. As noted, the Committee rejected the initial disclosure and pretrial disclosure requirements of Federal Rules 26(a)(1) and 26(a)(3). The Committee also rejected the detailed expert disclosure rules and report requirement of Federal Rule 26(a)(2), because those detailed expert disclosure rules -- while appropriate in certain cases -- are potentially too costly and difficult for the majority of civil cases handled by state district courts. To the extent detailed disclosure requirements beyond those of the existing Rule 26(b)(4) may be necessary, the district court has sufficient power to impose such requirements by virtue of its general powers over discovery as well as through the orders issued following preliminary pretrial conference or any discovery conference held pursuant to Rule 26(f). Federal Rule 26(b)(1) contains a limitation on the scope of discovery rejected by the Committee. Existing and long-standing Montana practice under Rule 26(b)(1) is carried forward in the new Rule 26(b)(1). The remainder of Rule 26(b)(2) and (3) is taken verbatim from Federal Rules 26(b)(2) and (3). Montana’s existing Rule 26(b)(2) regarding discovery of insurance information is carried forward without change and is now found at Rule 26(b)(6). As noted, the Committee chose not to adopt the detailed expert disclosure requirements of Federal Rule 26(a)(2). Previous Rule 26(b)(4) is carried forward in its entirety without change except that Rule 26(b)(4)(A)(ii) contains a new provision making clear the right to depose an opposing expert. The Committee intends to remove any doubt regarding expert depositions as of right and to allow such depositions without the need for court involvement. Rule 26(b)(6) is a verbatim adoption of Federal Rule 26(b)(5) and imposes a procedure for handling of information withheld under claimed privilege, requiring the creation of a privilege log and providing a procedure for handling inadvertent disclosure of privileged materials. Federal Rule 26(c) regarding protective orders is adopted as Montana Rule 26(c). Federal Rule 26(d) relating to sequence and timing of discovery is adopted, as is Federal Rule 26(e) with minor adjustments in language relating to expert disclosures necessary because of the Committee’s rejection of the expert disclosure requirements of Federal Rule 26(a)(2). Previous Montana Rule 26(f) regarding non-mandatory discovery conferences is carried forward. The rule is a useful case management tool that affords the district court substantial discretion to impose case-specific discovery requirements on a case-by-case 76 basis, and is regarded by the Committee as the appropriate procedure to follow when seeking specific orders regarding discovery or expert disclosures. Federal Rule 26(g) is adopted with one minor change, that being in Rule 26(g)(1)(B)(i), where the Committee has changed the word “nonfrivolous” to “good faith,” believing that this change more accurately reflects the appropriate test applied to situations covered by Rule 26(g). Rule 27. Depositions to Perpetuate Testimony. (a) Before an Action is Filed. (1) Petition. A person who wants to perpetuate testimony about any matter cognizable in any district court of the state of Montana may file a verified petition in the district court for the district where any expected adverse party resides. The petition must ask for an order authorizing the petitioner to depose the named persons in order to perpetuate their testimony. The petition must be titled in the petitioner’s name and must show: (A) that the petitioner expects to be a party to an action cognizable in a district court of the state of Montana but cannot presently bring it or cause it to be brought; (B) the subject matter of the expected action and the petitioner’s interest; (C) the facts that the petitioner wants to establish by the proposed testimony and the reasons to perpetuate it; (D) the names or a description of the persons whom the petitioner expects to be adverse parties and their addresses, so far as known; and (E) the name, address, and expected substance of the testimony of each deponent. (2) Notice and Service. At least 21 days before the hearing date, the petitioner must serve each expected adverse party with a copy of the petition and a notice stating the time and place of the hearing. The notice may be served either inside or outside the district or state in the manner provided in Rule 4. If that service cannot be made with reasonable diligence on an expected adverse party, the court may order service by publication or otherwise. The court may appoint an attorney to represent persons not served in the manner provided in Rule 4 and to cross-examine the deponent if an unserved person is not otherwise represented. If any expected adverse party is a minor or is incompetent, Rule 17(c) applies. (3) Order and Examination. If satisfied that perpetuating the testimony may prevent a failure or delay of justice, the court must issue an order that designates or 77 describes the persons whose depositions may be taken, specifies the subject matter of the examinations, and states whether the depositions will be taken orally or by written interrogatories. The depositions may then be taken under these rules, and the court may issue orders like those authorized by Rules 34 and 35. A reference in these rules to the court where an action is pending means, for purposes of this rule, the court where the petition for the deposition was filed. (4) Using the Deposition. A deposition to perpetuate testimony may be used under Rule 32(a) in any later-filed district court action involving the same subject matter. (b) Pending Appeal. (1) In General. The court where a judgment has been rendered may, if an appeal has been taken or may still be taken, permit a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in that court. (2) Motion. The party who wants to perpetuate testimony may move for leave to take the depositions, on the same notice and service as if the action were pending in the district court. The motion must show: (A) the name, address, and expected substance of the testimony of each deponent; and (B) the reasons for perpetuating the testimony. (3) Court Order. If the court finds that perpetuating the testimony may prevent a failure or delay of justice, the court may permit the depositions to be taken and may issue orders like those authorized by Rules 34 and 35. The depositions may be taken and used as any other deposition taken in a pending district court action. (c) Perpetuation by an Action. This rule does not limit a court’s power to entertain an action to perpetuate testimony. COMMITTEE NOTES The language of Rule 27 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The time period in former Rule 27(a)(2) for service before a hearing date has been changed from 20 to 21 days to conform to the Federal Rule. Rule 27 is adopted from Rule 27 of the Federal Rules of Civil Procedure with one minor change, to refer, in Rule 27(a)(1)(A), to cases in the district courts of Montana rather than the federal rule reference to cases in a United States court. 78 Rule 28. Persons Before Whom Depositions May Be Taken. (a) Within the United States. (1) Within Montana. Within the state of Montana, a deposition must be taken before: (A) an officer authorized by the laws of this state to administer oaths; or (B) a person appointed by the court in which the action is pending to administer oaths and take testimony. (2) Within the United States outside Montana. Within the United States or a territory or insular possession subject to United States jurisdiction, outside the state of Montana, a deposition must be taken before: (A) an officer authorized to administer oaths by the laws of this state, the United States, or of the place where the examination is held; or (B) a person appointed by the court in which the action is pending. (3) Definition of “Officer.” The term “officer” in Rules 30, 31, and 32 includes a person appointed by the court under this rule or designated by the parties under Rule 29(a). (b) In Foreign Countries. (1) In General. A deposition may be taken in a foreign country: (A) under an applicable treaty or convention; (B) under a letter of request, whether or not captioned a “letter rogatory”; (C) on notice, before a person authorized to administer oaths either by Montana law, federal law, or by the law in the place of examination; or (D) before a person commissioned by the court to administer any necessary oath and take testimony. (2) Issuing a Letter of Request or a Commission. A letter of request, a commission, or both may be issued: (A) on appropriate terms after an application and notice of it; and (B) without a showing that taking the deposition in another manner is impracticable or inconvenient. 79 (3) Form of a Request, Notice, or Commission. When a letter of request or any other device is used according to a treaty or convention, it must be captioned in the form prescribed by that treaty or convention. A letter of request may be addressed “To the Appropriate Authority in [name of country].” A deposition notice or a commission must designate by name or descriptive title the person before whom the deposition is to be taken. (4) Letter of Request -- Admitting Evidence. Evidence obtained in response to a letter of request need not be excluded merely because it is not a verbatim transcript, because the testimony was not taken under oath, or because of any similar departure from the requirements for depositions taken within the state of Montana. (c) Interstate Depositions and Discovery. (1) Definitions. For purposes of this rule: (A) “Foreign jurisdiction” means a state other than Montana; (B) “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction; (C) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity; (D) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States; and (E) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to: (i) attend and give testimony at a deposition; (ii) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or (iii) permit inspection of premises under the control of the person. (2) Issuance of a Subpoena. (A) To request issuance of a subpoena under this section, a party must submit a foreign subpoena to a clerk of court in the county in which discovery is 80 sought to be conducted in Montana. A request for issuance of a subpoena under this act does not constitute an appearance in the courts of this state. (B) When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed. (C) A subpoena under subsection (B) must: (i) incorporate the terms used in the foreign subpoena; and (ii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel. (3) Service of a Subpoena. A subpoena issued by a clerk of court under paragraph (c)(2) of this rule must be served in compliance with Rule 45. (4) Deposition, Production, and Inspection. Rules 30, 31, 34, and 45 apply to subpoenas issued under paragraph (c)(2) of this rule. (5) Application to Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a clerk of court under paragraph (c)(2) of this rule must comply with the rules or statutes of this state and be submitted to the court for the county in which discovery is to be conducted. (d) Disqualification for Interest. No deposition shall be taken before a person who is a relative or employee or attorney or counsel of any of the parties, or is a relative or employee of such attorney or counsel, or is financially interested in the action. The officer taking the deposition, or any other person with whom such officer has a principal and agency relationship, shall not enter into an agreement for reporting service which does any of the following: (1) requires the court reporter reporting the deposition to relinquish control of an original deposition transcript and copies of the transcript before it is certified and delivered to the custodial attorney; (2) requires the court reporter to provide special financial terms or other services that are not offered at the same time and on the same terms to all other parties in the litigation, or in any way offers any incentives or rewards to the attorneys, parties to the litigation, or to anyone else who has an interest in the litigation; (3) gives an exclusive monetary or other advantage to any party; or 81 (4) compromises the impartiality of the court reporter, or that may result in the appearance that the impartiality of the court reporter has been compromised. COMMITTEE NOTES The language of Rule 28 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 28 consists of portions of previous Rule 28, the federal rule and the Uniform Interstate Depositions and Discovery Act, which the supreme court has chosen to adopt. Rule 28(a) is previous Rule 28(a) modified to remove middle portions of that paragraph because they are covered by and clarified by adoption of the Uniform Interstate Depositions and Discovery Act, which appears in Rule 28(c). Rule 28(b) is taken verbatim from Rule 28(b) of the Federal Rules with changes made to refer specifically to Montana law rather than federal law. It should be noted that reference to a letter rogatory is generally removed, using instead the more modern term “letter of request.” Rule 28(c) is to effectuate, in the rules of civil procedure, the adoption by the supreme court of the Uniform Interstate Depositions and Discovery Act. It changes, and simplifies, procedure for the taking of foreign depositions. Previous Rule 28(c) regarding disqualification for interest of the person before whom a deposition is taken is carried forward verbatim but is re-designated as Rule 28(d). Previous Rules 28(d) and (e) are deleted because the subjects contained therein are covered by Rule 28(c). New Rule 28(d) adopts a proposal by the Court Reporters Association designed to address a perceived problem in exacting improper concessions from the Reporters as a condition of hiring. Rule 29. Stipulation Regarding Discovery Procedure. Unless the court orders otherwise, the parties may stipulate that: (a) a deposition may be taken before any person, at any time or place, on any notice, and in the manner specified -- in which event it may be used in the same way as any other deposition; and (b) other procedures governing or limiting discovery be modified. COMMITTEE NOTES The language of Rule 29 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. 82 The Committee chose to retain previous Rule 29. Federal Rule 29 contained provisions limiting the ability of parties and their attorneys to make stipulations regarding discovery the Committee believes are inappropriate for Montana practice. Rule 30. Depositions by Oral Examination. (a) When a Deposition May Be Taken. (1) Without Leave. A party may, by oral questions, depose any persons, including a party, without leave of court except as provided in Rule 30(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition, and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiff, or by the defendants, or by the third-party defendants; or (ii) the deponent has already been deposed in the case; or (iii) plaintiff seeks to take a deposition within 30 days after service of the summons and complaint under Rule 4(d), except that leave is not required if a defendant has served a deposition notice or discovery request. (B) if the deponent is confined in prison. (b) Notice of the Deposition; Other Formal Requirements. (1) Notice in General. A party who wants to depose a person by oral questions must give reasonable written notice to every other party. The notice must state the time and place of the deposition and, if known, the deponent’s name and address. If the name is unknown, the notice must provide a general description sufficient to identify the person or the particular class or group to which the person belongs. (2) Producing Documents. If a subpoena duces tecum is to be served on the deponent, the materials designated for production, as set out in the subpoena, must be listed in the notice or in an attachment. The notice to a party deponent may be accompanied by a request under Rule 34 to produce documents and tangible things at the deposition. (3) Method of Recording. (A) Method Stated in the Notice. The party who notices the deposition must state in the notice the method for recording the testimony. Unless the court 83 orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means. The noticing party bears the recording costs. Any party may arrange to transcribe a deposition. (B) Additional Method. With prior notice to the deponent and other parties, any party may designate another method for recording the testimony in addition to that specified in the original notice. That party bears the expense of the additional record or transcript unless the court orders otherwise. (4) By Remote Means. The parties may stipulate -- or the court may on motion order -- that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28, 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions. (5) Officer’s Duties. (A) Before the Deposition. Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28. The officer must begin the deposition with an on-the-record statement that includes: (i) the officer’s name and business address; (ii) the date, time, and place of the deposition; (iii) the deponent’s name; (iv) the officer’s administration of the oath or affirmation to the deponent; and (v) the identity of all persons present. (B) Conducting the Deposition; Avoiding Distortion. If the deposition is recorded nonstenographically, the officer must repeat the items in Rule 30(b)(5)(A)(i)-(iii) at the beginning of each unit of the recording medium. The deponent’s and attorney’s appearance or demeanor must not be distorted through recording techniques. (C) After the Deposition. At the end of a deposition, the officer must state on the record that the deposition is complete and must set out any stipulations made by the attorneys about custody of the transcript or recording and of the exhibits, or about any other pertinent matters. (6) Notice or Subpoena Directed to an Organization. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, or a governmental agency and must describe with reasonable 84 particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. This paragraph (6) does not preclude a deposition by any other procedure allowed by these rules. (c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions. (1) Examination and Cross-Examination. The examination and cross- examination of a deponent proceed as they would at trial under the Montana Rules of Evidence, except Rule 103. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer. (2) Objections. An objection at the time of the examination -- whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition -- must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3). (3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim. (d) Duration; Sanction; Motion to Terminate or Limit Examination. (1) Duration. Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time consistent with Rule 26(b)(2) if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. (2) Sanction. The court may impose an appropriate sanction -- including the reasonable expenses and attorney fees incurred by any party -- on a person who impedes, delays, or frustrates the fair examination of the deponent. 85 (3) Motion to Terminate or Limit. (A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order. (B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending. (C) Award of Expenses. Rule 37(a)(5) applies to the award of expenses. (e) Review by the Witness; Changes. (1) Review; Statement of Changes. On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which: (A) to review the transcript or recording; and (B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them. (2) Changes Indicated in the Officer’s Certificate. The officer must note in the certificate prescribed by Rule 30(f)(1) whether a review was requested and, if so, must attach any changes the deponent makes during the 30-day period. (f) Certification and Delivery; Exhibits; Copies of the Transcript or Recording; Filing. (1) Certification and Delivery. The officer must certify in writing that the witness was duly sworn and that the deposition accurately records the witness’s testimony. The certificate must accompany the record of the deposition. Unless the court orders otherwise, the officer must seal the deposition in an envelope or package bearing the title of the action and marked “Deposition of [witness’s name]” and must promptly send it to the attorney who arranged for the transcript or recording. The attorney must store it under conditions that will protect it against loss, destruction, tampering, or deterioration. 86 (2) Documents and Tangible Things. (A) Originals and Copies. Documents and tangible things produced for inspection during a deposition must, on a party’s request, be marked for identification and attached to the deposition. Any party may inspect and copy them. But if the person who produced them wants to keep the originals, the person may: (i) offer copies to be marked, attached to the deposition, and then used as originals -- after giving all parties a fair opportunity to verify the copies by comparing them with the originals; or (ii) give all parties a fair opportunity to inspect and copy the originals after they are marked -- in which event the originals may be used as if attached to the deposition. (B) Order Regarding the Originals. Any party may move for an order that the originals be attached to the deposition pending final disposition of the case. (3) Copies of the Transcript or Recording. Unless otherwise stipulated or ordered by the court, the officer must retain the stenographic notes of a deposition taken stenographically or a copy of the recording of a deposition taken by another method. When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent. (4) Notice of Filing. A party who files the deposition must promptly notify all other parties of the filing. (g) Failure to Attend a Deposition or Serve a Subpoena; Expenses. A party who, expecting a deposition to be taken, attends in person or by an attorney may recover reasonable expenses for attending, including attorney fees, if the noticing party failed to: (1) attend and proceed with the deposition; or (2) serve a subpoena on a nonparty deponent, who consequently did not attend. COMMITTEE NOTES The language of Rule 30 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 30 is adopted nearly verbatim from Rule 30 of the Federal Rules, with two specific differences. The first difference is that any references to the pre-discovery disclosure requirements of Federal Rule 26 are removed because the disclosure requirements of Federal Rule 26 have not been adopted. The second difference relates to 87 previous Rule 30(a), which contained a provision requiring court approval of a deposition taken prior to expiration of 30 days after service of the summons and complaint upon any defendant. That limitation does not appear in the federal rule but is being specifically carried forward in Rule 30(a)(2)(a)(iii). Federal Rule 30(a)(2)(A)(iii) regarding taking of depositions prior to expiration of time for pretrial disclosures set forth in Federal Rule 26(d) was not adopted by the Committee. Finally, Rule 30(a)(2)(A)(ii) prohibits a second deposition of a witness absent agreement of the parties or leave of court. Federal Rule 30 also contains certain specific changes from present practice under the previous Rule 30. Rule 30(a)(2)(A) imposes a 10-deposition limit in cases, although that limit may be modified by agreement of the parties under Rule 29 or by court order. Federal Rule 30(c) makes clear that Rule 615 of the Federal Rules of Evidence regarding exclusion of witnesses at trial does not apply at depositions. The Committee chose to continue allowing Rule 615 of the Montana Rules of Evidence to be invoked at depositions as at trial. Rule 30(e) changes the prior procedure which required submission to the witness for review and signature unless waived. Rule 30(e), adopted from Federal Rule 30(e), requires review and signature only upon request of the deponent or a party. Previous Rule 30(h) has been replaced by the general methods of recording provided for by Rule 30(b)(3). Rule 31. Depositions by Written Questions. (a) When a Deposition May Be Taken. (1) Without Leave. A party may, by written questions, depose any person, including a party, without leave of court except as provided in Rule 31(a)(2). The deponent’s attendance may be compelled by subpoena under Rule 45. (2) With Leave. A party must obtain leave of court, and the court must grant leave to the extent consistent with Rule 26(b)(2): (A) if the parties have not stipulated to the deposition and: (i) the deposition would result in more than 10 depositions being taken under this rule or Rule 30 by the plaintiffs, or by the defendants, or by the third-party defendants; (ii) the deponent already has been deposed in the case; or (B) if the deponent is confined in prison. (3) Service; Required Notice. A party who wants to depose a person by written questions must serve them on every other party, with a notice stating, if known, the deponent’s name and address. If the name is unknown, the notice must provide a 88 general description sufficient to identify the person or the particular class or group to which the person belongs. The notice must also state the name or descriptive title and the address of the officer before whom the deposition will be taken. (4) Questions Directed to an Organization. A public or private corporation, a partnership, an association, or a governmental agency may be deposed by written questions in accordance with Rule 30(b)(6). (5) Questions from Other Parties. Any questions to the deponent from other parties must be served on all parties as follows: cross-questions, within 14 days after being served with the notice and direct questions; redirect questions, within 7 days after being served with cross-questions; and recross-questions, within 7 days after being served with redirect questions. The court may, for good cause, extend or shorten these times. (b) Delivery to the Officer; Officer’s Duties. The party who noticed the deposition must deliver to the officer a copy of all the questions served and of the notice. The officer must promptly proceed in the manner provided in Rule 30(c), (e), and (f) to: (1) take the deponent’s testimony in response to the questions; (2) prepare and certify the deposition; and (3) send it to the party, attaching a copy of the questions and of the notice. (c) Notice of Completion or Filing. (1) Completion. The party who noticed the deposition must notify all other parties when it is completed. (2) Filing. A party who files the deposition must promptly notify all other parties of the filing. COMMITTEE NOTES The language of Rule 31 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 31 is adopted verbatim from Federal Rule 31. Rule 32. Using Depositions in Court Proceedings. (a) Using Depositions. (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions: 89 (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Montana Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8). (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Montana Rules of Evidence. (3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party’s officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4). (4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness’s absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness’s attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable -- in the interest of justice and with due regard to the importance of live testimony in open court -- to permit the deposition to be used. (5) Limitation on Use of Deposition Taken on Short Notice. A deposition must not be used against a party who, having received less than 14 days’ notice of the deposition, promptly moved for a protective order under Rule 26(c)(1)(B) requesting that it not be taken or be taken at a different time or place -- and this motion was still pending when the deposition was taken. (6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in 90 fairness should be considered with the part introduced, and any party may itself introduce any other parts. (7) Substituting a Party. Substituting a party under Rule 25 does not affect the right to use a deposition previously taken. (8) Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal or state court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Montana Rules of Evidence. (b) Objections to Admissibility. Subject to Rules 28(b) and 32(d)(3), an objection may be made at a hearing or trial to the admission of any deposition testimony that would be inadmissible if the witness were present and testifying. (c) Form of Presentation. Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party’s request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise. (d) Waiver of Objections. (1) To the Notice. An objection to an error or irregularity in a deposition notice is waived unless promptly served in writing on the party giving the notice. (2) To the Officer’s Qualifications. An objection based on disqualification of the officer before whom a deposition is to be taken is waived if not made: (A) before the deposition begins; or (B) promptly after the basis for disqualification becomes known or, with reasonable diligence, could have been known. (3) To the Taking of the Deposition. (A) Objection to Competence, Relevance, or Materiality. An objection to a deponent’s competence -- or to the competence, relevance, or materiality of testimony -- is not waived by a failure to make the objection before or during the deposition, unless the ground for it might have been corrected at that time. (B) Objection to an Error or Irregularity. An objection to an error or irregularity at an oral examination is waived if: 91 (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition. (C) Objections to a Written Question. An objection to the form of a written question under Rule 31 is waived if not served in writing on the party submitting the question within the time for serving responsive questions or, if the question is a recross-question, within 7 days after being served with it. (4) To Completing and Returning the Deposition. An objection to how the officer transcribed the testimony -- or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition -- is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known. COMMITTEE NOTES The language of Rule 32 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The 5-day time period in Rule 32(d)(3)(C) for serving responsive questions is changed from 5 days to 7 days to conform to the Federal Rule. Rule 32 is adopted nearly verbatim from Federal Rule 32. Only minor changes were made to reflect reference to the Montana Rules of Evidence and of Civil Procedure, and to reflect the Committee’s decision not to adopt the provisions of Federal Rule 30(a)(2)(A)(iii), thus necessitating rejection of Federal Rule 32(a)(5)(B). Rule 33. Interrogatories to Parties. (a) In General. (1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 50 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(2). (2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time. 92 (b) Answers and Objections. (1) Responding Party. The interrogatories must be answered: (A) by the party to whom they are directed; (B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party. (2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories, except that a defendant may serve answers or objections within 45 days after service of the summons and complaint upon that defendant. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath. (4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure. (5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections. (c) Use. An answer to an interrogatory may be used to the extent allowed by the Montana Rules of Evidence. (d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party’s business records (including electronically-stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by: (1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and (2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries. COMMITTEE NOTES The language of Rule 33 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to 93 make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The language of Rule 33 is adopted principally from Rule 33 of the Federal Rules of Civil Procedure with the exceptions discussed below. Previous Rule 33(a) regarding the number of interrogatories has been carried forward into this Rule, and allows 50 interrogatories rather than the 25 allowed under Federal Rule 33(a). Because the Federal Rules contain extensive prediscovery disclosure requirements, which have not been adopted by the Committee, the number of interrogatories allowed is increased, consistent with existing practice. Rule 33 provides that requests for additional interrogatories may be granted to the extent consistent with the limitations stated in Rule 26(b)(2). Previous Rule 33(b) contained a provision extending the time for answering interrogatories served upon a defendant to 45 days following service of summons and complaint. That time period is carried forward in Rule 33(b)(2). Otherwise, Federal Rule 33(b) is adopted verbatim. Rule 33(a)(2) carries forward the intent of the language appearing in previous Rule 33(b) making it clear that an interrogatory is not objectionable “merely because it asks for an opinion or contention that relates to fact or the application of law to fact[.]” The Committee agrees with the Committee Note to Rule 33 of the Federal Rules and its statement that “opinion and contention interrogatories are used routinely.” Rule 34. Producing Documents, Electronically-Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes. (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control: (A) any designated documents or electronically-stored information -- including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations -- stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or (B) any designated tangible things; or (2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it. 94 (b) Procedure. (1) Contents of the Request. The request: (A) must describe with reasonable particularity each item or category of items to be inspected; (B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and (C) may specify the form or forms in which electronically-stored information is to be produced. (2) Responses and Objections. (A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served, except that a defendant may serve a response within 45 days after service of the summons and complaint upon that defendant. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court. (B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state an objection to the request, including the reasons. (C) Objections. An objection to part of a request must specify the part and permit inspection of the rest. (D) Responding to a Request for Production of Electronically-Stored Information. The response may state an objection to a requested form for producing electronically- stored information. If the responding party objects to a requested form -- or if no form was specified in the request -- the party must state the form or forms it intends to use. (E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically-stored information: (i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request; (ii) if a request does not specify a form for producing electronically- stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and 95 (iii) a party need not produce the same electronically-stored information in more than one form. (c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection. COMMITTEE NOTES The language of Rule 34 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The text of Rule 34 is adopted from Rule 34 of the Federal Rules of Civil Procedure. Previous Rule 34 of the Montana Rules of Civil Procedure allowed 45 days for response by a defendant to requests served under Rule 34 following service of summons and complaint on that defendant. That provision is carried forward in Rule 33(b)(2)(A). In all other respects, the rule is identical to Rule 34 of the Federal Rules of Civil Procedure, including adoption of provisions relating to requests for and production of electronically-stored information. Rule 35. Physical and Mental Examination. (a) Order for Examination. (1) In General. The court where the action is pending may order a party whose mental or physical condition -- including blood group -- is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control. (2) Motion and Notice; Contents of the Order. The order: (A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and (B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it. (b) Examiner’s Report. (1) Request by the Party or Person Examined. The party who moved for the examination must, on request, deliver to the requester a copy of the examiner’s report, together with like reports of all earlier examinations of the same condition. The request may be made by the party against whom the examination order was issued or by the person examined. 96 (2) Contents. The examiner’s report must be in writing and must set out in detail the examiner’s findings, including diagnoses, conclusions, and the results of any tests. (3) Request by the Moving Party. After delivering the reports, the party who moved for the examination may request -- and is entitled to receive -- from the party against whom the examination order was issued like reports of all earlier or later examinations of the same condition. But those reports need not be delivered by the party with custody or control of the person examined if the party shows that it could not obtain them. (4) Waiver of Privilege. By requesting and obtaining the examiner’s report, by deposing the examiner, or by commencing an action or presenting a defense which puts a party’s condition at issue, the party examined waives any privilege it may have -- in that action or any other action involving the same controversy -- concerning testimony about all treatments, prescriptions, consultations, or examinations for the same condition. The waiver of any privilege does not apply to any treatment, consultation, prescription, or examination for any condition not related to the pending action. On a timely motion for good cause and on notice to all parties and the person to be examined, the court in which the action is pending may issue an order to prohibit the introduction of evidence of any such portion of any person’s medical record not related to the pending action. (5) Failure to Deliver a Report. The court on motion may order -- on just terms -- that a party deliver the report of an examination. If the report is not provided, the court may exclude the examiner’s testimony at trial. (6) Scope. This subdivision (b) applies also to an examination made by the parties’ agreement, unless the agreement states otherwise. This subdivision does not preclude obtaining an examiner’s report or deposing an examiner under other rules. COMMITTEE NOTES The language of Rule 35 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. The Committee has adopted Federal Rule 35 in its entirety with one addition in Rule 35(b)(4) adapted from previous Rule 35(b)(2), limiting the waiver of doctor-patient privilege in instances where treatment, consultation, prescription, or examination relates to a mental or physical condition “not related to the pending action.” 97 Rule 36. Requests for Admissions. (a) Scope and Procedure. (1) Scope. A party may serve on any other party a written request to admit, for purposes of the pending action only, the truth of any matters within the scope of Rule 26(b)(1) relating to: (A) facts, the application of law to fact, or opinions about either; and (B) the genuineness of any described documents. (2) Form; Copy of a Document. Each matter must be separately stated. A request to admit the genuineness of a document must be accompanied by a copy of the document unless it is, or has been, otherwise furnished or made available for inspection and copying. (3) Time to Respond; Effect of Not Responding. A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon that defendant. A shorter or longer time for responding to requests for admission may be stipulated to under Rule 29 or be ordered by the court. (4) Answer. If a matter is not admitted, the answer must specifically deny it or state in detail why the answering party cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of the matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. (5) Objections. The grounds for objecting to a request must be stated. A party must not object solely on the ground that the request presents a genuine issue for trial. (6) Motion Regarding the Sufficiency of an Answer or Objection. The requesting party may move to determine the sufficiency of an answer or objection. Unless the court finds an objection justified, it must order that an answer be served. On finding that an answer does not comply with this rule, the court may order either that the matter is admitted or that an amended answer be served. The court may 98 defer its final decision until a pretrial conference or a specified time before trial. Rule 37(a)(5) applies to an award of expenses. (b) Effect of an Admission; Withdrawing or Amending it. A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits. An admission under this rule is not an admission for any other purpose and cannot be used against the party in any other proceeding. COMMITTEE NOTES The language of Rule 36 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 36 of the Federal Rules is adopted in its entirety with one addition. Previous Rule 36(a) allowed 45 days for response to requests for admission after service of the summons and complaint on the defendant. That provision is carried forward in Rule 36(a)(3). Rule 37. Failure to Make Discovery; Sanctions. (a) Motion for an Order Compelling Discovery. (1) In General. On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make discovery in an effort to obtain it without court action. (2) Appropriate Court. A motion for an order to a party must be made in the court where the action is pending. A motion for an order to a nonparty must be made in the court where the discovery is or will be taken. (3) Specific Motions. (A) To Compel a Discovery Response. A party seeking discovery may move for an order compelling an answer, designation, production, or inspection. This motion may be made if: (i) a deponent fails to answer a question asked under Rule 30 or 31; (ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4); (iii) a party fails to answer an interrogatory submitted under Rule 33; or 99 (iv) a party fails to respond that inspection will be permitted -- or fails to permit inspection -- as requested under Rule 34. (B) Related to a Deposition. When taking an oral deposition, the party asking a question may complete or adjourn the examination before moving for an order. (4) Evasive or Incomplete Answer or Response. For purposes of this subdivision (a), an evasive or incomplete answer or response must be treated as a failure to answer or respond. (5) Payment of Expenses; Protective Orders. (A) If the Motion is Granted or Disclosure or Discovery is Provided After Filing. If the motion is granted -- or if the requested discovery is provided after the motion was filed -- the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant’s reasonable expenses incurred in making the motion, including attorney fees. But the court must not order this payment if: (i) the movant filed the motion before attempting in good faith to obtain the discovery without court action; (ii) the opposing party’s response or objection was substantially justified; or (iii) other circumstances make an award of expenses unjust. (B) If the Motion is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust. (C) If the Motion is Granted in Part and Denied in Part. If the motion is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion. 100 (b) Failure to Comply With a Court Order. (1) Sanctions in the District Where the Deposition is Taken. If the court where the discovery is taken orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of court. (2) Sanctions by the Court Where the Action is Pending. (A) For not Obeying a Discovery Order. If a party or a party’s officer, director, or managing agent -- or a witness designated under Rule 30(b)(6) or 31(a)(4) -- fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. (B) For not Producing a Person for Examination. If a party fails to comply with an order under Rule 35(a) requiring it to produce another person for examination, the court may issue any of the orders listed in Rule 37(b)(2)(A)(i)-(vi), unless the disobedient party shows that it cannot produce the other person. (C) Payment of Expenses. Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust. 101 (c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information requested in accordance with these rules or fails to disclose information regarding opinions of a witness as required by Rule 26(b)(4), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard: (A) may order the payment of the reasonable expenses, including attorney fees, caused by the failure; (B) may inform the jury of the party’s failure; and (C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). (2) Failure to Admit. If a party fails to admit what is requested under Rule 36 and if the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses, including attorney fees, incurred in making that proof. The court must so order unless: (A) the request was held objectionable under Rule 36(a); (B) the admission sought was of no substantial importance; (C) the party failing to admit had a reasonable ground to believe that it might prevail on the matter; or (D) there was other good reason for the failure to admit. (d) Party’s Failure to Attend Its Own Deposition, Serve Answers to Interrogatories, or Respond to a Request for Inspection. (1) In General. (A) Motion; Grounds for Sanctions. The court where the action is pending may, on motion, order sanctions if: (i) a party or a party’s officer, director, or managing agent -- a person designated under Rule 30(b)(6) or 31(a)(4) -- fails, after being served with proper notice, to appear for that person’s deposition; or 102 (ii) a party, after being properly served with interrogatories under Rule 33 or a request for inspection under Rule 34, fails to serve its answers, objections, or written response. (B) Certification. A motion for sanctions for failing to answer or respond must include a certification that the movant has in good faith conferred or attempted to confer with the party failing to act in an effort to obtain the answer or response without court action. (2) Unacceptable Excuse for Failing to Act. A failure described in Rule 37(d)(1)(A) is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for a protective order under Rule 26(c). (3) Types of Sanctions. Sanctions may include any of the orders listed in Rule 37(b)(2)(A)(i)-(vi). Instead of or in addition to these sanctions, the court must require the party failing to act, the attorney advising that party, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless that failure was substantially justified or other circumstances make an award of expenses unjust. (e) Failure to Provide Electronically-Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically-stored information lost as a result of the routine, good-faith operation of an electronic information system. (f) Failure to Participate in the Framing of a Discovery Plan. If a party or its attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require that party or attorney to pay to any other party the reasonable expenses, including attorney fees, caused by the failure. COMMITTEE NOTES The language of Rule 37 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Rule 37 is, in substantial part, an adoption of Federal Rule 37. Salient additions, deletions, or changes from Federal Rule 37 as well as provisions of particular interest, not in existence under previous Rule 37, are noted below. As with Rules 26 and 30, Rule 37 is modified to delete references to the initial disclosure requirements of Rule 26 and motions related to failure to make such disclosures. This is necessary because the Committee has rejected the automatic disclosure requirements set out in Federal Rule 26(a). 103 Particular note should be taken of the Committee’s decision to adopt the “confer and certify” requirements regarding motion practice under Rule 37(a)(1). Note also should be taken of the new provision under Rule 37(a)(5)(A) addressing the situation where a motion to compel is filed and, in response, the discovery sought is provided. In those circumstances, the court is required, after giving notice and opportunity to be heard, to order the party necessitating the motion to pay the movant’s reasonable expenses in making the motion, including attorney fees. The initial motion to compel is, however, explicitly subject to the “confer and certify” requirements of Rule 37(a)(1). Rule 37(c) of the Federal Rule is adopted except for changes necessary to remove reference to disclosures required by Federal Rule 26 not adopted by Rule 26. New language in Rule 37(c)(1) makes clear the power of the court to impose the sanctions specified in Rule 37(c)(1)(A), (B), or (C) where information properly requested under these rules is not supplied as required or where there is not a proper disclosure of expert opinions under Rule 26(b)(4). Rule 37(d) of the Federal Rules of Civil Procedure is adopted verbatim. Practitioners should note the “confer and certify” requirement of Rule 37(d)(1)(B) regarding motions for sanctions. This provision requires counsel to attempt to work out their own resolution of discovery issues prior to turning to the court for assistance. Rule 37(d) specifies, but does not limit, the range of sanctions available to the court by its reference in Rule 37(d)(3) to Rule 37(b)(2)(A)(i)-(vi). Previous Rule 37(e) is carried forward unchanged, but its language is identical to Federal Rule 37(e). Previous Rule 37(g) is carried forward and is now designated as Rule 37(f). Federal Rule 37(f) is not adopted because of its reference to the discovery plan of Rule 26(f), a requirement of Federal Rule 26 not adopted by the Committee. TITLE VI. Trials Rule 38. Right to a Jury Trial; Demand. (a) Right Preserved. The right of trial by jury as declared by the Montana Constitution - - or as provided by a Montana statute -- is preserved to the parties inviolate. (b) Demand. On any issue triable of right by a jury, a party may demand a jury trial by: (1) serving the other parties with a written demand -- which may be included in a pleading -- no later than 14 days after the last pleading directed to the issue is served; and (2) filing the demand in accordance with Rule 5(d). (c) Specifying Issues. In its demand, a party may specify the issues that it wishes to have tried by a jury; otherwise, it is considered to have demanded a jury trial on all the issues 104 so triable. If the party has demanded a jury trial on only some issues, any other party may -- within 14 days after being served with the demand or within a shorter time ordered by the court -- serve a demand for a jury trial on any other or all factual issues triable by jury. (d) Waiver; Withdrawal. A party waives a jury trial unless its demand is properly served and filed. A proper demand may be withdrawn only if the parties consent. COMMITTEE NOTES The language of Rule 38 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 38 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. The 10-day periods in Rules 38(b) and (c) have been changed to 14 days to correspond to the counterpart Federal Rule. Rule 38(b) includes the Rule 5(d) compliance that was formerly incorporated in previous Rule 38(d). The change is stylistic only. Rule 38(d) wholly adopts the simplified language of Federal Rule 38(d). It drops the sentence of previous Rule 38(d), which states that “A waiver of trial by jury is not revoked by an amendment of a pleading asserting only a claim or defense arising out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” The language of Rules 38 and 39 clearly states the mechanisms for demanding a jury trial. This change does not, therefore, imply that a waiver may be revoked in the absence of the present explicit prohibition. Rule 38 does not adopt Federal Rule 38(e), pertaining to admiralty and maritime claims. Rule 39. Trial by Jury or by the Court. (a) When a Demand is Made. When a jury trial has been demanded under Rule 38, the action must be designated on the docket as a jury action. The trial on all issues so demanded must be by jury unless: (1) the parties or their attorneys file a stipulation to a nonjury trial or so stipulate on the record; or (2) the court, on motion or on its own, finds that on some or all of those issues there is no right to a jury trial. (b) When no Demand is Made. Issues on which a jury trial is not properly demanded are to be tried by the court. But the court may, on motion, order a jury trial on any issue for which a jury might have been demanded. 105 (c) Advisory Jury; Jury Trial by Consent. In an action not triable of right by a jury, the court, on motion or on its own: (1) may try any issue with an advisory jury; or (2) may, with the parties’ consent, try any issue by a jury whose verdict has the same effect as if a jury trial had been a matter of right. COMMITTEE NOTES The language of Rule 39 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 39 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 39(b) requires a motion before allowing the court to order jury trial upon an issue for which it might have been granted. The previous Rule 39(b) gives the court discretion to so order upon its own initiative. Rule 40. Scheduling Cases for Trial. Each court must provide by rule for scheduling trials. The court must give priority to actions entitled to priority by a Montana statute. COMMITTEE NOTES The language of Rule 40 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. The language of Federal Rule 40 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 41. Dismissal of Actions. (a) Voluntary Dismissal. (1) By the Plaintiff. (A) Without a Court Order. Subject to Rules 23(e), 23.1(c), 23.2, and 66 and any applicable state statute, the plaintiff may dismiss an action without a court order by filing: (i) a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment; or (ii) a stipulation of dismissal signed by all parties who have appeared. 106 (B) Effect. Unless the notice or stipulation states otherwise, the dismissal is without prejudice. (2) By Court Order; Effect. Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff’s request only by court order, on terms that the court considers proper. If a defendant has pleaded a counterclaim before being served with the plaintiff’s motion to dismiss, the action may be dismissed over the defendant’s objection only if the counterclaim can remain pending for independent adjudication. Unless the order states otherwise, a dismissal under this paragraph (2) is without prejudice. (b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule -- except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 -- operates as an adjudication on the merits. (c) Dismissing a Counterclaim, Crossclaim, or Third-Party Claim. This rule applies to a dismissal of any counterclaim, crossclaim, or third-party claim. A claimant’s voluntary dismissal under Rule 41(a)(1)(A)(i) must be made: (1) before a responsive pleading is served; or (2) if there is no responsive pleading, before evidence is introduced at a hearing or trial. (d) Costs of a Previously Dismissed Action. If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied. COMMITTEE NOTES The language of Rule 41 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are primarily stylistic. The language of Federal Rule 41 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 41(a)(1)(A) includes the updated references to Rules 23.1(c) and 23.2 of the 2007 revision of the Federal Rules. 107 Rule 41(a)(1)(B) includes the federal language relating to the dismissal as an adjudication on the merits. Rule 42. Consolidation; Separate Trials. (a) Consolidation. If actions before the court involve a common question of law or fact, the court may: (1) join for hearing or trial any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid unnecessary cost or delay. (b) Separate Trials. For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any statutory or constitutional right to a jury trial. COMMITTEE NOTES The language of Rule 42 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are primarily stylistic. The language of Federal Rule 42 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 42(b) adopts the federal language, which adds “to expedite and economize” as justifications for ordering separate trials. It also adds language preserving the right to jury trial in reflection of Article II, Section 26 of the Montana Constitution and the Seventh Amendment to the United States Constitution. In light of the dual state and federal constitutional guarantees of jury trial, Rule 42(b) substituted “constitutional right to a jury trial” in place of “state right to a jury trial.” Rule 43. Taking Testimony. (a) In Open Court. At trial, the witnesses’ testimony must be taken in open court unless a Montana statute, the Montana Rules of Evidence, these rules, or other rules adopted by the supreme court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location. (b) Affirmation Instead of an Oath. When these rules require an oath, a solemn affirmation suffices. 108 (c) Evidence on a Motion. When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions. (d) Interpreter. The court may appoint an interpreter of its choosing; fix reasonable compensation to be paid from funds provided by law or by one or more parties; and tax the compensation as costs. COMMITTEE NOTES The language of Rule 43 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 43 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. The amendments do not affect testimony in chambers. Rule 43(a) adopts the federal language, with state specific revisions. There is no present Montana equivalent rule. Rule 43(b) is previous Rule 43(d). Rule 43(c) adopts the federal language, which does not include the preface to the equivalent previous Rule 43(e), which states, “Except as otherwise provided in Rule 56 . . . .” Rule 43(d) is previous Rule 43(f). Rule 44. Proving an Official Record. (a) Means of Proving. (1) Domestic Record. Each of the following evidences an official record -- or an entry in it -- that is otherwise admissible and is kept within the United States, any state, district, or commonwealth, or any territory subject to the administrative or judicial jurisdiction of the United States: (A) an official publication of the record; or (B) a copy attested by the officer with legal custody of the record -- or by the officer’s deputy -- and accompanied by a certificate that the officer has custody. The certificate must be made under seal: (i) by a judge of a court of record in the district or political subdivision where the record is kept; or (ii) by any public officer with a seal of office and with official duties in the district or political subdivision where the record is kept. 109 (2) Foreign Record. (A) In General. Each of the following evidences a foreign official record -- or an entry in it -- that is otherwise admissible: (i) an official publication of the record; or (ii) the record -- or a copy -- that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties. (B) Final Certification of Genuineness. A final certification must certify the genuineness of the signature and official position of the attester or of any foreign official whose certificate of genuineness relates to the attestation or is in a chain of certificates of genuineness relating to the attestation. A final certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. (C) Other Means of Proof. If all parties have had a reasonable opportunity to investigate a foreign record’s authenticity and accuracy, the court may, for good cause, either: (i) admit an attested copy without final certification; or (ii) permit the record to be evidenced by an attested summary with or without a final certification. (b) Lack of Record. A written statement that a diligent search of designated records revealed no record or entry of a specified tenor is admissible as evidence that the records contain no such record or entry. For domestic records, the statement must be authenticated under Rule 44(a)(1). For foreign records, the statement must comply with (a)(2)(C)(ii). (c) Other Proof. A party may prove an official record -- or an entry or lack of an entry in it -- by any other method authorized by law. COMMITTEE NOTES The language of Rule 44 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. 110 Rule 44.1. Determining Foreign Law. A party who intends to raise an issue about a foreign country’s law must give notice by a pleading or other writing. In determining foreign law, the court may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court’s determination must be treated as a ruling on a question of law. COMMITTEE NOTES The language of Rule 44.1 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 45. Subpoena. (a) In General. (1) Form and Contents. (A) Requirements -- In General. Every subpoena must: (i) state the court from which it issued; (ii) state the title of the action, the court in which it is pending, and its cause number; (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically-stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and (iv) set out the text of Rule 45(d) and (e). (B) Command to Attend a Deposition -- Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony. (C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically-Stored Information. A command to produce documents, electronically-stored information, or tangible things, or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically- stored information is to be produced. 111 (D) Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically-stored information, or tangible things requires the responding party to permit inspection, copying, testing, or sampling of the materials. (2) Except as provided in Rule 28(c)(2), a subpoena must issue from the court in which the action is pending. (3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena as an officer of: (A) a court in which the attorney is authorized to practice; or (B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending. (4) A party or an attorney responsible for the issuance and service of a subpoena seeking health care information, as defined by Title 50, Chapter 16, shall comply with the provisions of Title 50, Chapter 16. (b) Service. A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. (c) Notice of Service. (1) Notice shall be provided to all parties no less than 10 days before the commanded production of documents, electronically-stored information, or tangible things, or inspection of premises before trial, and shall be served on each party in the manner prescribed by Rule 5(b). (2) Subject to the provisions of clause (ii) of subparagraph (d)(3)(A) of this rule, a subpoena: (A) for attendance at a hearing or trial may be served at any place within the state and may require the person subpoenaed to appear at the hearing or trial irrespective of the person’s place of residence, place of employment, or where such person regularly transacts business in person; (B) for the production of documentary evidence and/or the taking of a deposition may require a person to attend an examination or produce documentary evidence only at a place within the state; and 112 (i) in the case of residents or entities located within the state, within 100 miles of where that person resides or is employed or transacts business in person, or, if on an entity, within 100 miles of the principal location of that entity, or at such other convenient place as is fixed by order of court; (ii) in the case of non-residents who have been served within the state, within 100 miles of where the non-resident is served, or at any other convenient place as is fixed by order of court. (3) Proof of service when necessary shall be made by filing with the clerk of court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service. (d) Protecting a Person Subject to a Subpoena. (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction -- which may include lost earnings and reasonable attorney fees -- on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance not Required. A person commanded to produce designated documents, electronically-stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial. (B) Objections. A person commanded to produce designated materials or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the designated materials or to inspecting the premises -- or to producing electronically-stored information in the form or forms requested. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made, the following rules apply: (i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expenses resulting from compliance. 113 (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person -- except that, subject to Rule 45(d)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; (ii) disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party; or (iii) a person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend trial. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated. (e) Duties in Responding to a Subpoena. (1) Producing Documents or Electronically-Stored Information. These procedures apply to producing documents or electronically-stored information: 114 (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form of Producing Electronically-Stored Information Not Specified. If a subpoena does not specify a form for producing electronically-stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically-Stored Information Produced in Only One Form. The person responding need not produce the same electronically-stored information in more than one form. (D) Inaccessible Electronically-Stored Information. The person responding need not provide discovery of electronically-stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of the undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must: (i) expressly assert the claim; and (ii) describe the nature of the withheld documents, communications, or things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim. (B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved. 115 (f) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(d)(3)(A)(ii). COMMITTEE NOTES The language of Rule 45 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 46. Objecting to a Ruling or Order. A formal exception to a ruling or order is unnecessary. When the ruling or order is requested or made, a party need only state the action that it wants the court to take or objects to, along with the grounds for the request or objection. Failing to object does not prejudice a party who had no opportunity to do so when the ruling or order was made. COMMITTEE NOTES The language of Rule 46 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 47. Jurors. (a) Examination of Jurors. (1) The court shall permit the parties or their attorneys to conduct the examination of prospective jurors under its supervision. The court may supplement the examination by such further inquiry as it deems proper. (2) Challenges for cause must be tried by the court. The juror challenged and any other person may be examined as a witness on the trial of the challenge. (b) Manner of Selection and Order of Examination of Jurors. (1) Order of Examination. From the entire jury panel, an initial panel of 20 jurors shall be called in the first instance, and before any voir dire examination of the jury shall be had. Examination of all jurors in the initial panel shall be completed by the plaintiff before examination by the defendant. If challenges for cause are allowed, an additional juror shall be called from the entire panel immediately upon the allowance of challenge, and the juror called to replace the juror excused for cause shall take the number of the juror who has been excused, to provide a full initial 116 panel of 20 jurors, whose examination shall be completed before any peremptory challenges are made. (2) Peremptory Challenges. (A) When the voir dire examination has been completed, each side shall have four peremptory challenges, and they shall be exercised by the plaintiff first striking one, the defendant then striking one, and so on, until each side has exhausted or waived its right. (B) In the event one or more alternate jurors are called, the next jurors remaining in the initial panel, if any, shall be called by the clerk to be the alternate jurors. (C) In the event all jurors remaining of the original initial panel of 20 jurors, including those substituted for those jurors excused for cause, have been subjected to peremptory challenge, then the clerk shall call additional jurors from the remainder of the jury panel to provide alternate jurors who will be subject to challenge as provided by law. (D) In the event there is more than one party defendant, and should it appear that each defendant is entitled to peremptory challenges, then the original panel shall be increased to provide four additional jurors for each defendant who is entitled to exercise peremptory challenges. (E) The clerk shall keep a record of the order in which jurors are called, and in the event the entire initial panel has not been exhausted by challenges, the court shall excuse sufficient of the last-called jurors until a jury of 12 persons and the determined number of alternates shall remain to make up the trial jury. (c) Alternate Jurors. The court may direct that one or two jurors in addition to the regular panel be called and impaneled to sit as alternate jurors. (1) Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury arrives at its verdict, become unable or disqualified to perform their duties. (2) An alternate juror shall not join the jury in its deliberation unless called upon by the court to replace a member of the jury. (3) The alternate juror’s conduct during the period in which the jury is considering its verdict shall be regulated by instructions of the trial court. (4) Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take 117 the same oath, and shall have the same functions, powers, facilities, and privileges as the principal jurors. (5) An alternate juror who does not replace a principal juror shall be discharged after the jury arrives at its verdict. (6) If one or two alternate jurors are called, each party is entitled to one peremptory challenge in addition to those otherwise allowed by subdivision (b) of this rule. (7) The additional peremptory challenge may be used only against an alternate juror, and other peremptory challenges allowed by law shall not be used against the alternates. COMMITTEE NOTES The language of Rule 47 is the same as previous Rule 47 but the format has changed. Rule 47 is provided in an outline format in order to render a consistent style throughout the rules. These changes are intended to be stylistic only. Rule 48. Juries -- Verdict. At least two-thirds in number of any jury may render a verdict or finding, and such verdict or finding so rendered shall have the same force and effect as if all such jury concurred therein. The parties may stipulate that the jury shall consist of less number than 12. COMMITTEE NOTES Rule 48 is identical to previous Rule 48. Rule 49. Special Verdicts and Interrogatories. (a) Special Verdict. (1) In General. The court may require a jury to return only a special verdict in the form of a special written finding on each issue of fact. The court may do so by: (A) submitting written questions susceptible of a categorical or other brief answer; (B) submitting written forms of the special findings that might properly be made under the pleadings and evidence; or (C) using any other method that the court considers appropriate. (2) Instructions. The court must give the instructions and explanations necessary to enable the jury to make its findings on each submitted issue. (3) Issues not Submitted. A party waives the right to a jury trial on any issue of fact raised by the pleadings or evidence but not submitted to the jury unless, before 118 the jury retires, the party demands its submission to the jury. If the party does not demand submission, the court may make a finding on the issue. If the court makes no finding, it is considered to have made a finding consistent with its judgment on the special verdict. (b) General Verdict with Answers to Written Questions. (1) In General. The court may submit to the jury forms for a general verdict, together with written questions on one or more issues of fact that the jury must decide. The court must give the instructions and explanations necessary to enable the jury to render a general verdict and answer the questions in writing, and must direct the jury to do both. (2) Verdict and Answers Consistent. When the general verdict and the answers are consistent, the court must approve, for entry under Rule 58, an appropriate judgment on the verdict and answers. (3) Answers Inconsistent with the Verdict. When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may: (A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict; (B) direct the jury to further consider its answers and verdict; or (C) order a new trial. (4) Answers Inconsistent with Each Other and the Verdict. When the answers are inconsistent with each other and one or more is also inconsistent with the general verdict, judgment must not be entered; instead, the court must direct the jury to further consider its answers and verdict, or must order a new trial. COMMITTEE NOTES The language of Rule 49 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 50. Judgment as a Matter of Law in a Jury Trial; Related Motion for a New Trial; Conditional Ruling. (a) Judgment as a Matter of Law. 119 (1) In General. If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may: (A) resolve the issue against the party; and (B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. (2) Motion. A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury. The motion must specify the judgment sought and the law and facts that entitle the movant to the judgment. (b) Renewing the Motion after Trial; Alternative Motion for a New Trial. If the court does not grant a motion for judgment as a matter of law made under Rule 50(a), the court is considered to have submitted the action to the jury subject to the court’s later deciding the legal questions raised by the motion. No later than 28 days after the entry of judgment -- or if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged -- the movant may file a renewed motion for judgment as a matter of law and may include an alternative or joint request for a new trial under Rule 59. If the court does not rule on a properly filed renewed motion for judgment as a matter of law or an alternative or joint request for a new trial within 60 days from its filing date, the motion is deemed denied. In ruling on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law. (c) Granting the Renewed Motion; Conditional Ruling on a Motion for a New Trial. (1) In General. If the court grants a renewed motion for judgment as a matter of law, it must also conditionally rule on any motion for a new trial by determining whether a new trial should be granted if the judgment is later vacated or reversed. The court must state the grounds for conditionally granting or denying the motion for a new trial. (2) Effect of a Conditional Ruling. Conditionally granting the motion for a new trial does not affect the judgment's finality; if the judgment is reversed, the new trial must proceed unless the appellate court orders otherwise. If the motion for a new trial is conditionally denied, the appellee may assert error in that denial; if the judgment is reversed, the case must proceed as the appellate court orders. 120 (d) Time for a Losing Party’s New-Trial Motion. Any motion for a new trial under Rule 59 by a party against whom judgment as a matter of law is rendered must be filed no later than 28 days after the entry of the judgment. (e) Denying the Motion for Judgment as a Matter of Law; Reversal on Appeal. If the court denies the motion for judgment as a matter of law, the prevailing party may, as appellee, assert grounds entitling it to a new trial should the appellate court conclude that the trial court erred in denying the motion. If the appellate court reverses the judgment, it may order a new trial, direct the trial court to determine whether a new trial should be granted, or direct the entry of judgment. COMMITTEE NOTES The language of Rule 50 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 50(b) primarily adopts the relevant language of the Federal Rules, which allows the movant to file both a renewed motion for judgment as a matter of law and an alternative or joint request for a new trial. The language clarifies that a motion must be filed no later than 28 days after the entry of judgment or the jury was discharged, if the motion addresses a jury issue not decided by the verdict. Rule 50(b) includes an additional provision, however, that subjects a renewed motion for judgment as a matter of law or an alternative or joint request for a new trial to an automatic 60-day denial. The stylistic changes of this rule fully incorporate Montana’s present 60-day time fuse designed to prevent delayed court action. The 10-day period in Rule 52(b) for filing of a motion to amend or make additional findings is enlarged to 28 days in conformance with the Federal Rules change. The reason for this is explained in the following Federal Rules Committee Comment: Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post- judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period. 121 The Committee considered the question of whether the change from 10 to 28 days on these Rules would affect the “deemed denied” provisions in Montana’s Rules. The Committee concluded there will be no effect -- the 60-day “deemed denied” period would continue to run from the date the motion is filed, regardless of whether the motion is filed within 10 days or 28 days. The Committee also considered the question of whether the extension from 10 days to 28 days would affect the right to appeal these orders or the finality of judgments for purposes of appeal. Rule 6(3), M. R. App. P., (Orders appealable in civil cases) provides, in subsection (b), that an appeal may be taken “from a ‘deemed denied’ motion that was made pursuant to M. R. Civ. P. 50(b), 52(b), 59, or 60(b).” Accordingly, merely extending the deadlines in these rules from 10 days to 28 days will not affect appeal rights. Rule 50(e) recognizes the appellate court’s ability to direct the entry of judgment. The Federal Committee noted that this change simply acknowledged and canonized the development of federal common law on this point. Rule 51. Instructions to the Jury; Objections; Preserving a Claim of Error. (a) Requests. (1) Before or at the Close of the Evidence. At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. (2) After the Close of the Evidence. After the close of the evidence, a party may: (A) file requests for instructions on issues that could not reasonably have been anticipated by an earlier time that the court set for requests; and (B) with the court’s permission, file untimely requests for instructions on any issue. (b) Instructions. The court: (1) must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments; (2) must give the parties an opportunity to object on the record and out of the jury’s hearing before the instructions and arguments are delivered; and (3) may instruct the jury at any time before the jury is discharged. (c) Objections. 122 (1) How to Make. A party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. (2) When to Make. An objection is timely if: (A) a party objects at the opportunity provided under Rule 51(b)(2); or (B) a party was not informed of an instruction or action on a request before that opportunity to object, and the party objects promptly after learning that the instruction or request will be, or has been, given or refused. (d) Assigning Error; Plain Error. (1) Assigning Error.A party may assign as error: (A) an error in an instruction actually given, if that party properly objected; or (B) a failure to give an instruction, if that party properly requested it and -- unless the court rejected the request in a definitive ruling on the record -- also properly objected. (2) Plain Error. A court may consider a plain error in the instructions that has not been preserved as required by Rule 51(d)(1) if the error affects substantial rights. COMMITTEE NOTES The language of Rule 51 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. Rule 51(a)(1) does not provide for the court to request jury instructions as in the previous rule, but allows the parties to submit proposed instructions as a matter of right. Rule 51(a)(2) further allows parties to request instructions on issues not reasonably anticipated prior to the close of evidence. Rule 51(b)(3) allows the court to instruct the jury at any time before jury discharge, in contrast to the more restrictive previous rule which requires that they are read to the jury prior to commencement of counsel’s arguments. Rule 51(c)(2)(B) explicitly preserves the right to object if a party was not informed of an instruction or request. Rule 51 takes a more permissive stance toward jury instructions, while affording more protection against their improper application. Rule 51(d) establishes clear guidelines for the assignment of error. The previous version of the rule is without a similar compliment. 123 Rule 52. Findings and Conclusions by the Court; Judgment on Partial Findings. (a) Findings and Conclusions. (1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court. Judgment must be entered under Rule 58. (2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action. (3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion unless these rules provide otherwise. When ruling on a motion under Rule 12 or 56, a court shall specify the grounds therefor with sufficient particularity as to apprise the parties and any appellate court of the rationale underlying the ruling. This may be done in the body of the order or in an attached opinion. (4) Effect of a Master’s Findings. A master’s findings, to the extent adopted by the court, must be considered the court’s findings. (5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings. (6) Setting Aside the Findings. Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility. (b) Amended or Additional Findings. On a party’s motion filed no later than 28 days after the entry of judgment, the court may amend its findings -- or make additional findings -- and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59. (c) Judgment on Partial Finding. If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on 124 partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a). (d) Time for determining motions. Motions provided under subdivision (b) of this rule must be determined within the time provided by Rule 59 in the cases of motions for new trial and amendment of judgment and if the court fails to rule on the motion within the 60-day period, the motion must be deemed denied. COMMITTEE NOTES The language of Rule 52 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Previous Rule 52(a) states that findings are unnecessary on decisions of motions “except as provided in subdivision (c) of this rule.” Rule 52(a)(3), in adopting the present federal language, reads that findings are unnecessary “unless these rules provide otherwise.” The Federal Committee noted that they made this change to the 2007 update to incorporate provisions in other rules, including Rule 54(d)(2)(C), which requires Rule 52 findings. Rule 52(b) subjects motions, by reference to the requirements in Rule 59, to a 60- day automatic denial, incorporating the same provisions of previous Rule 52(d). The stylistic changes of this rule fully incorporate Montana’s previous 60-day time fuse designed to prevent delayed action by the court. The 10-day period in Rule 52(b) for filing of a motion to amend or make additional findings is enlarged to 28 days in conformance with the Federal Rules change. The reason for this is explained in the following Federal Rules Committee Comment: Former Rules 50, 52, and 59 adopted 10-day periods for their respective post-judgment motions. Rule 6(b) prohibits any expansion of those periods. Experience has proved that in many cases it is not possible to prepare a satisfactory post- judgment motion in 10 days, even under the former rule that excluded intermediate Saturdays, Sundays, and legal holidays. These time periods are particularly sensitive because Appellate Rule 4 integrates the time to appeal with a timely motion under these rules. Rather than introduce the prospect of uncertainty in appeal time by amending Rule 6(b) to permit additional time, the former 10-day periods are expanded to 28 days. Rule 6(b) continues to prohibit expansion of the 28-day period. The Committee considered the question of whether the change from 10 to 28 days on these Rules would affect the “deemed denied” provisions in Montana’s Rules. The 125 Committee concluded there will be no effect -- the 60-day “deemed denied” period would continue to run from the date the motion is filed, regardless of whether the motion is filed within 10 days or 28 days. The Committee also considered the question of whether the extension from 10 days to 28 days would affect the right to appeal these orders or the finality of judgments for purposes of appeal. Rule 6(3), M. R. App. P., (Orders appealable in civil cases) provides, in subsection (b), that an appeal may be taken “[f]rom a ‘deemed denied’ motion that was made pursuant to M. R. Civ. P. 50(b), 52(b), 59, or 60(b).” Accordingly, merely extending the deadlines in these rules from 10 days to 28 days will not affect appeal rights. NOTE By order entered on December 13, 2016, the Court revised Rule 52(a)(3) to require that a judgment on the pleadings or a summary judgment order must include articulation of the basis for the order. Rule 53. Masters. (a) Appointment. (1) Definition. As used in these rules, the word “master” includes a referee, an auditor, an examiner, and an assessor. (A) Standing Masters. A judicial district may appoint one or more standing masters for its district with the concurrence of a majority of all the judges in the district. (B) Special Masters. A court in which any action is pending may appoint a special master in the action. (C) Water Masters. The water court may appoint water masters as provided by law. (2) Compensation. The court must fix a special master’s compensation. The compensation must be paid either: (A) by a party or parties; or (B) from a fund or subject matter of the action within the court’s control. (3) Writ of Execution. When a party ordered to pay the master’s compensation does not pay it after notice and within the time prescribed by the court, the master is entitled to a writ of execution against the delinquent party. The master may not retain the master’s report as security for the master’s compensation. 126 (b) References Limited. (1) A court may refer to a special master: (A) an action to be tried by a jury only when the issues are complicated; (B) an action to be tried by the court only on a showing that some exceptional condition requires the reference, or in an accounting. (2) Referrals to standing masters and water masters may be as provided by law or by district court and water court rules. (c) Master’s Powers. (1) In General. The order of reference may: (A) direct the master to report only upon particular issues; (B) direct the master to do or perform particular acts; (C) direct the master to receive and report evidence only; (D) fix the time and place for beginning and closing the proceedings and for the filing of the master’s report; or (E) otherwise specify or limit the master’s powers. (2) Proceedings. Unless the order of reference directs otherwise, a master may: (A) regulate all proceedings; (B) require the production before the master of evidence upon all matters embraced in the reference; (C) rule upon the admissibility of evidence; (D) administer oaths and examine parties and other witnesses under oath; and (E) take all appropriate measures to perform the master’s duties under the order efficiently. (3) Record. On request of a party, the master must make a record of the evidence as provided in the Montana Rules of Evidence for a court sitting without a jury. (d) Procedure. (1) Meetings. When a reference is made, the clerk must promptly provide the master with a copy of the order of reference. Unless the order of reference provides otherwise, upon receipt of the order the master must set a time and place for the first 127 meeting of the parties or their attorneys and notify the parties or their attorneys of the meeting. The first meeting must be held within 20 days of the order of reference unless otherwise provided by the order. The master must proceed with all reasonable diligence. Either party, on notice to the parties and master, may apply to the court for an order requiring the master to speed the proceedings and to make the report. If a party fails to appear at a meeting, the master may proceed ex parte or, in the master’s discretion, adjourn the proceedings to a future day, giving notice to the absent party of the adjournment. (2) Witnesses. Parties may command the attendance of witnesses before the master by subpoenas as provided in Rule 45. A witness who, without adequate excuse, fails to appear or give evidence may be sanctioned or held in contempt as provided by Rules 37 and 45. (3) Statement of accounts. In accountings, the master may prescribe the form in which the accounts shall be submitted and, when appropriate, may require or receive in evidence a statement by a certified public accountant who is called as a witness. Upon objection of a party to any of the items thus submitted or upon a showing that the form of statement is insufficient, the master may: (A) require a different form of statement; (B) require proof of the accounts or specific items by oral examination of the accounting parties, or upon written interrogatories or in such other manner as the master directs. (e) Report. (1) Contents and filing. The master must prepare a report upon the matters submitted to the master by the order of reference. If required to make findings of fact and conclusions of law, the master shall set them forth in the report. The master must file the report with the clerk of the court and serve on all parties notice of the filing. In an action to be tried without a jury, unless otherwise directed by the order of reference, the master must file with the report a transcript of the proceedings and of the evidence and the original exhibits. Unless otherwise directed by the order of reference, the master shall serve a copy of the report on each party. (2) In nonjury actions. In an action to be tried by the court, the court must accept the master’s findings of fact unless clearly erroneous. Within 10 days after being served with notice of the filing of the report, any party may serve written objections to the report. Application to the court for action upon the report and objections must be by motion and upon notice as provided by Rule 6(d). After hearing, the court 128 may adopt the report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions. (3) In jury actions. In an action to be tried by a jury, the court may not direct the master to report the evidence. The master’s findings upon the issues submitted to the master are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law which may be made to the report. (4) Stipulations as to findings. The effect of a master’s report is the same whether or not the parties have consented to the reference. However, when the parties stipulate that a master’s findings of fact are final, the court may only review the master’s legal conclusions. (5) Draft report. Before filing the master’s report, a master may submit a draft of the report to counsel for all parties for the purpose of receiving their suggestions. COMMITTEE NOTES The language of Rule 53 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules. TITLE VII. Judgment Rule 54. Judgments; Costs. (a) Definition; Form. “Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment should not include recitals of pleadings, a master’s report, or a record of prior proceedings. (b) Judgment on Multiple Claims or Involving Multiple Parties. (1) When an action presents more than one claim for relief -- whether as a claim, counterclaim, crossclaim, or third-party claim -- or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities. 129 (2) Any order or other decision granted pursuant to Rule 54(b)(1) must comply with the certification of judgment requirements of Montana Rule of Appellate Procedure 6(6). (c) Demand for Judgment; Relief to Be Granted. A default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings. Every other final judgment should grant the relief to which each party is entitled, even if the party has not demanded that relief in its pleadings. (d) Costs; Attorney Fees. (1) Costs Other than Attorney Fees. Unless a Montana statute, these rules, or a court order provides otherwise, costs -- other than attorney fees -- should be allowed to the prevailing party. But costs against the State of Montana, its officers, its agencies, and its political subdivisions may be imposed only to the extent allowed by law. The clerk may tax costs on 14 days’ notice. On motion served within the next 7 days, the court may review the clerk’s action. (2) Attorney Fees. (A) Claim to Be by Motion. A claim for attorney fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages. (B) Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court so orders, the terms of any agreement about fees for the services for which the claim is made. (C) Proceedings. Subject to Rule 23(h), the court must, on a party’s request, give an opportunity for adversary submissions on the motion in accordance with Rule 43(c). The court may decide issues of liability for fees before receiving submissions on the value of services. The court must find the facts and state its conclusions of law as provided in Rule 52(a). (D) Special Procedures by Local Rule. By local rule, the court may establish special procedures to resolve fee-related issues without extensive evidentiary 130 hearings. Also, the court may refer issues concerning the value of services to a special master under Rule 53 without regard to the limitations of Rule 53. (E) Exceptions. Subparagraphs (A)-(D) do not apply to claims for fees and expenses as sanctions for violating these rules or as sanctions under section 37- 61-421. COMMITTEE NOTES The language of Rule 54 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 54 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 54(a) adopts a discretionary posture with regard to including recitals of pleadings, a master’s report, or record of prior proceedings in a judgment, substituting “should not” for the “shall not” of the previous Rule 54(a). Rule 54(c) likewise replaces “shall” with “should grant the relief to which each party is entitled.” Rule 54(b) incorporates the relevant federal language into 54(b)(1), but adds 54(b)(2) to harmonize with Montana Rule of Appellate Procedure 6(6). Rule 54(d)(1) was revised to substitute “federal” with “Montana,” “United States” with “State of Montana,” and to add “political subdivisions” to the list of state entities with limited liability for costs. The clerk’s authorization to tax costs after 14 days’ notice, subject to the court’s review upon motion from Federal Rule 54 was incorporated into the rule. The 14-day period for giving notice to the clerk to tax costs and the 7-day period for giving notice of a motion to have the court review the clerk’s action on taxing costs are based on the Federal Rule. Rule 54(d)(2) incorporates the federal provisions for attorney fees into the Montana Rules, edited to replace federal references with their state counterparts. Rule 54(d)(2)(C) adopts the relevant language of the Federal Rules except that it omits reference to “Rule 78,” which was without a state complement. Rule 54(d)(2)(C) may require an update or revision of Montana Rule 23(h). Rule 54(d)(2)(D) adopts the federal language except that it does not include referral of a motion for attorney fees to a magistrate judge. Rule 55. Default; Default Judgment. (a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party’s default. 131 (b) Entering a Default Judgment. (1) By the Clerk. If the plaintiff’s claim is for a sum certain or a sum that can be made certain by computation, the clerk -- on the plaintiff’s request, with an affidavit showing the amount due -- must enter judgment for that amount and costs against a defendant who has been defaulted for not appearing and who is neither a minor nor an incompetent person. (2) By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals -- preserving any Montana statutory right to a jury trial -- when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. (c) Setting Aside a Default or a Default Judgment. The court may set aside an entry of default for good cause, and it may set aside a default judgment under Rule 60(b). (d) Judgment against the State of Montana. A default judgment may be entered against the State of Montana, its officers, its agencies, or its political subdivisions only if the claimant establishes a claim or right to relief by evidence that satisfies the court. COMMITTEE NOTES The language of Rule 55 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 55 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 55(a) reflects the 2007 changes to the Federal Rules. The Federal Committee noted that: Former Rule 55(a) directed the clerk to enter a default when a party failed to plead or otherwise defend “as provided by these rules.” The implication from the reference to defending “as provided by these rules” seemed to be that the 132 clerk should enter a default even if a party did something showing an intent to defend, but that act was not specifically described by the rules. Courts in fact have rejected that implication. Acts that show an intent to defend have frequently prevented a default even though not connected to any particular rule. “[A]s provided by these rules” is deleted to reflect Rule 55(a)’s actual meaning. Rule 55(b)(1) drops the explicit personal service requirement and prohibition on service by publication found in the Montana Rule. Rule 55(b)(2) drops “committee” and “guardian ad litem” from the list of infant or incompetent representatives in adherence to the federal language. Rule 55(c) does not include a substantial portion of the previous rule, and instead adheres to the federal language. The previous 3-day period of Rule 55(b)(2) is changed to 7 days to conform to the Federal Rule. Previous Rule 55(d) does not have a federal counterpart, as it was deleted with the 2007 revision. The Federal Committee stated that the list was incomplete and unnecessary because Rule 55(a) applies Rule 55 to any party against whom a judgment for affirmative relief is requested, and because the second provision was a redundant reminder that Rule 54(c) limits the relief available by default judgment. Rule 55(d) was incorporated, with state-specific revisions, to limit the availability of default judgment against the state. “[P]olitical subdivisions” were added to the list of protected state entities. Rule 56. Summary Judgment. (a) By a Claiming Party. A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. (b) By a Defending Party. A party against whom relief is sought may move, with or without supporting affidavits, for summary judgment on all or part of the claim. (c) Time for a Motion, Response, and Reply; Proceedings. (1) These times apply unless the court orders otherwise: (A) a party may move for summary judgment at any time; (B) a party opposing the motion must file a response, and any opposing affidavits, within 21 days after the motion is served or a responsive pleading is due, whichever is later; and (C) the movant may file a reply within 14 days after the response is served. 133 (2) Hearing. (A) The right to a hearing is waived unless a party requests a hearing within 14 days after the time for filing a reply brief has expired. (B) The court may set a hearing on its own motion. (3) The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (d) Case Not Fully Adjudicated on the Motion. (1) Establishing Facts. If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue. The court should so determine by examining the pleadings and evidence before it and by interrogating the attorneys. It should then issue an order specifying what facts -- including items of damages or other relief -- are not genuinely at issue. The facts so specified must be treated as established in the action. (2) Establishing Liability. An interlocutory summary judgment may be rendered on liability alone, even if there is a genuine issue on the amount of damages. (e) Affidavits; Further Testimony. (1) In General. A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits. (2) Opposing Party’s Obligation to Respond. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. (f) When Affidavits Are Unavailable. If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; 134 (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. (g) Affidavits Submitted in Bad Faith. If satisfied that an affidavit under this rule is submitted in bad faith or solely for delay, the court must order the submitting party to pay the other party the reasonable expenses, including attorney fees, it incurred as a result. An offending party or attorney may also be held in contempt. COMMITTEE NOTES Montana Rule 56 follows the Federal Rule 56 changes, with minor revisions. The federal rationale for the December 1, 2009 amendment to Rule 56 is as follows and expresses that rationale: The timing provisions for summary judgment are outmoded. They are consolidated and substantially revised in new subdivision (c)(1). The new rule allows a party to move for summary judgment at any time, even as early as the commencement of the action. If the motion seems premature both subdivision (c)(1) and Rule 6(b) allow the court to extend the time to respond. The rule does set a presumptive deadline at 30 days after the close of all discovery. The presumptive timing rules are default provisions that may be altered by an order in the case or by local rule. Scheduling orders are likely to supersede the rule provisions in most cases, deferring summary-judgment motions until a stated time or establishing different deadlines. Scheduling orders tailored to the needs of the specific case, perhaps adjusted as it progresses, are likely to work better than default rules. A scheduling order may be adjusted to adopt the parties’ agreement on timing, or may require that discovery and motions occur in stages -- including separation of expert- witness discovery from other discovery. Local rules may prove useful when local docket conditions or practices are incompatible with the general Rule 56 timing provisions. If a motion for summary judgment is filed before a responsive pleadings is due from a party affected by the motion, the time for responding to the motion is 21 days after the responsive pleading is due. 135 Four minor changes from the Federal language have been adopted in Montana. First, Rule 56(c)(1) omits the following language: “a different time is set by local rule or….” The rationale for this omission is that different Rules in the various judicial districts do not make sense regarding the summary judgment procedure. Also, language in Rule 56(c)(1)(A) allowing a party to move for summary judgment at any time “until 30 days after the close of all discovery” is modified. The 30-day closure period is deleted because it is inconsistent with much of Montana’s summary judgment practice. Third, unless the court orders otherwise, Rule 56(c)(1)(B) requires any opposing affidavits to be filed according to the briefing schedule, instead of allowing an opposing party to surprise the moving party any time “prior to the day of the hearing.” Fourth, Rule 56(c)(2) expresses the parties’ general entitlement to hearing on summary judgment. See SVKV, LLC v. Harding, 2006 MT 297; Richards v. City of Missoula, 2009 MT 453. Rule 56(a) and (b) adopts the federal language, substituting “relief” for “claim, counterclaim, or cross-claim or to obtain a declaratory judgment” where it is found in the present subsections of Montana Rule 56. The Federal Committee noted that it adopted “relief” because: The list was incomplete. Rule 56 applies to third-party claimants, intervenors, claimants in interpleader, and others. . . . Rule 56(a) and (b) carry forward the present meaning by referring to a party claiming relief and a party against whom relief is sought. Rule 56 adopts the discretionary federal language in place of the mandatory state phrasing in four places in the rule. Rule 56(c) states that a judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact.” This would replace the previous Rule 56(c), which states that a judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” show no genuine issue. Rule 56(d) states that a court “should” determine what material facts are not at issue and “should” then issue an order stating that determination. The previous Rule 56(d) makes those court functions mandatory with its use of “shall.” Rule 56(e)(2) states that summary judgment “should” be entered against a party who fails to set out specific facts showing a genuine issue for trial. The previous Rule 56(e)(2) uses the mandatory “shall.” The Federal Committee explained their decision to change from “shall” to “should,” stating: It is established that although there is no discretion to enter summary judgment when there is a genuine issue as to any material fact, there is discretion to deny summary judgment when it appears that there is no genuine issue as to any material fact. Kennedy v. Silas Mason Co., 334 U.S. 249, 256-257 (1948). Many lower court decisions are gathered in 136 10A Wright, Miller & Kane, Federal Practice & Procedure: Civil 3d, § 2728. “Should” in amended Rule 56(c) recognizes that courts will seldom exercise the discretion to deny summary judgment when there is no genuine issue as to any material fact. Similarly sparing exercise of this discretion is appropriate under Rule 56(e)(2). Rule 56(d)(1), on the other hand, reflects the more open-ended discretion to decide whether it is practicable to determine what material facts are not genuinely as issue. Rule 57. Declaratory Judgments. These rules govern the procedure for obtaining a declaratory judgment under Title 27, Chapter 8. Rules 38 and 39, subject to the provisions of section 27-8-302, govern a demand for a jury trial. The existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate. The court may order a speedy hearing of a declaratory-judgment action. COMMITTEE NOTES The language of Rule 57 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 58. Entering Judgment. (a) Separate Document. Every judgment and amended judgment must be set out in a separate document, but a separate document is not required for an order disposing of a motion: (1) for judgment under Rule 50(b); (2) to amend or make additional findings under Rule 52(b); (3) for attorney fees under Rule 54; (4) for a new trial, or to alter or amend the judgment, under Rule 59; or (5) for relief under Rule 60. (b) Entering Judgment. (1) Without the Court’s Direction. Subject to Rule 54(b) and unless the court orders otherwise, the clerk must, without awaiting the court’s direction, promptly prepare, sign, and enter the judgment when: (A) the jury returns a general verdict; 137 (B) the court awards only costs or a sum certain; or (C) the court denies all relief. (2) Court’s Approval Required. Subject to Rule 54(b), the court must promptly approve the form of the judgment, which the clerk must promptly enter, when: (A) the jury returns a special verdict or a general verdict with answers to written questions; or (B) the court grants other relief not described in this subdivision (b). (c) Time of Entry. For purposes of these rules, judgment is entered at the following times: (1) if a separate document is not required, when the judgment is entered in the civil docket; or (2) if a separate document is required, when the judgment is entered in the civil docket and the earlier of these events occurs: (A) it is set out in a separate document; or (B) 150 days have run from the entry in the civil docket. (d) Request for Entry. A party may request that judgment be set out in a separate document as required by Rule 58(a). (e) Cost or Fee Awards, and Sanctions. A judgment, even though entered, is not considered final for purposes of appeal under Rule 4(1)(a), M. R. App. P., until any necessary determination of the amount of costs and attorney fees awarded, or sanctions imposed, is made. The district court is not deprived of jurisdiction to enter its order on a timely motion for attorney fees, costs, or sanctions by the premature filing of a notice of appeal. A notice of appeal filed before the disposition of any such motions shall be treated as filed on the date of such entry. COMMITTEE NOTES The language of Rule 58 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 58 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 58(a) incorporates the federal separate document requirement and exceptions into the Montana Rules. There is no similar requirement under the previous Montana Rule 58. 138 Rule 58(b)(2)(A) adds “or a general verdict with answers to written questions; or” to the language of the rule. It is directly adopted from the same Federal Rule. Rule 58(d) incorporates the Request for Entry provision into the Montana Rules. There is no similar requirement under the previous Rule 58. Rule 58(e) reflects the changes made to Rule 54(d) regarding motions for attorney fees and costs. It effectively adds motions made according to Rule 54(d)(2) (for attorney fees or costs) as well as motions for sanctions to the list of motions under M. R. App. P. 4(5)(a)(iv), extending the time to appeal. Rule 59. New Trial; Altering or Amending a Judgment. (a) In General. (1) Grounds for New Trial. The court may, on motion, grant a new trial on all or some of the issues -- and to any party -- as follows: (A) after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in Montana state court; or (B) after a nonjury trial, for any reason for which a rehearing has heretofore been granted in a suit in equity in Montana state court. (2) Further Action after a Nonjury Trial. After a nonjury trial, the court may, on motion for a new trial, open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new ones, and direct the entry of a new judgment. (b) Time to File a Motion for a New Trial. A motion for a new trial must be filed no later than 28 days after the entry of judgment. The motion for a new trial must set forth, in the heading of the motion and under the cause number and department identification, the date which is 60 days from the date of the filing of the motion, and the date which is 120 days from the date of filing of the motion. (c) Time to Serve Affidavits. When a motion for a new trial is based on affidavits, they must be filed with the motion. The opposing party has 14 days after being served to file opposing affidavits. The court may permit reply affidavits. (d) New Trial on the Court’s Initiative or for Reasons not in the Motion. No later than 28 days after the entry of judgment, the court, on its own, may order a new trial for any reason that would justify granting one on a party’s motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event, the court must specify the reasons in its order. 139 (e) Motion to Alter or Amend a Judgment. A motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment. (f) Motion Deemed Denied. If the court does not address in a written order a motion for a new trial properly filed according to Rule 59(b), or a motion to alter or amend a judgment properly filed according to Rule 59(e), within 60 days from its filing date, the motion must be deemed denied. If the court issues an order within the 60 days extending the time within which to rule on the motion, the time for ruling may be extended, but if the motion is not ruled upon within 120 days from its filing date, it will be deemed denied. COMMITTEE NOTES The language of Rule 59 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are both substantive and stylistic. The language of Federal Rule 59 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. The 10-day time periods under Rule 59(b), (d), and (e) were all changed to 28 days to conform to the Federal Rule changes. See explanation in the Committee Notes to Rules 50 and 52. Also, Rule 59(c) was changed to conform to the Federal Rules. The opposing party now has 14 days rather than 10 days, after being served, to file opposing affidavits. The language allowing an extension for up to 20 days either by the court for good cause or by the parties’ stipulation has been deleted in conformance with the federal deletions. In keeping with the State Committee’s intention to retain Montana’s 60-day time fuse for court action upon certain matters, the pertinent language was added to Rule 59(f). The previous Rule 59(d), with the exception of the 60-day timing requirement, was not incorporated into Rule 59. A decision on the motion would instead be entered according to the relevant provisions of Rule 58. NOTE By order entered on December 13, 2016, the Court revised the Rule 59(b) and (f) procedure and timelines for deemed denial of a motion for new trial or a motion to alter or amend the judgment. Rule 60. Relief from Judgment or Order. (a) Corrections Based on Clerical Mistakes; Oversights and Omissions. The court may correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record. The court may do so on motion or on its own, with or without notice. But after an appeal has been docketed in 140 the supreme court and while it is pending, such a mistake may be corrected only with the supreme court’s leave. (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. (c) Timing and Effect of the Motion. (1) Timing. A motion under Rule 60(b) must be made within a reasonable time -- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding. Motions provided by Rule 60(b) must be determined within the times provided by Rule 59 in the case of motions for new trials and amendment of judgment, and if the court shall fail to rule on the motion within the time frames set forth in Rule 59(f), the motion must be deemed denied. A motion filed under this rule shall follow the format set forth in Rule 59(b). (2) Effect on Finality. The motion does not affect the judgment’s finality or suspend its operation. (d) Other Powers to Grant Relief. This rule does not limit a court's power to: (1) entertain an independent action to relieve a party from a judgment, order, or proceeding; (2) grant relief to a defendant who was not personally notified of the action; or (3) set aside a judgment for fraud on the court. (e) Bills and Writs Abolished. The following are abolished: bills of review, bills in the nature of bills of review, and writs of coram nobis, coram vobis, and audita querela. 141 COMMITTEE NOTES The language of Rule 60 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. The language of Federal Rule 60 was amended as necessary to replace federal references and statutes with the appropriate state references and statutes. Rule 60(c)(1) adopts the relevant federal language, but adds the language of present Montana Rule 60(c)(1). NOTE By order entered on December 13, 2016, the Court revised the Rule 60(c)(1) procedure and timelines for deemed denial of a motion for new trial. Rule 61. Harmless Error. Unless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights. COMMITTEE NOTES The language of Rule 61 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 62. Stay of Proceedings to Enforce a Judgment. (a) Automatic Stay; Injunction; Exceptions. Except as stated in this rule, no execution may issue on a judgment, nor may proceedings be taken to enforce it, until 14 days have passed after its entry. During this 14-day period, there is imposed, automatically, an order enjoining the judgment debtor(s) from transferring, encumbering, or in any way making unavailable to execution any or all real or personal property, whether tangible or intangible, including, without limitation, cash, accounts, choses in action, leases, contract rights, or other property or any interest therein of the judgment debtor(s). For good cause shown and on terms that protect the respective interests of the parties, the court may enter an order modifying the automatic stay and injunction imposed by this rule. But unless the court orders otherwise, the following are not stayed after being entered, even if an appeal is taken: (1) an interlocutory or final judgment in an action for an injunction; or (2) receivership. 142 (b) Stay Pending the Disposition of a Motion. On appropriate terms for the opposing party’s security, the court may stay the execution of a judgment -- or any proceedings to enforce it -- pending disposition of any of the following motions: (1) under Rule 50, for judgment as a matter of law; (2) under Rule 52(b), to amend the findings or for additional findings; (3) under Rule 59, for a new trial or to alter or amend a judgment; or (4) under Rule 60, for relief from a judgment or order. (c) Injunction Pending an Appeal. While an appeal is pending from an interlocutory order or final judgment that grants, dissolves, or denies an injunction, the court may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights. (d) Stay with Bond on Appeal. If an appeal is taken, the appellant may obtain a stay by supersedeas bond, except in an action described in Rule 62(a)(1) or (2). The bond may be given upon or after filing the notice of appeal or after obtaining the order allowing the appeal. The stay takes effect when the court approves the bond. (e) Stay without Bond on an Appeal by the State of Montana, Its Officers, or Its Agencies. The court must not require a bond, obligation, or other security from the appellant when granting a stay on an appeal by the State of Montana, its officer, or its agencies or on an appeal directed by a department of the State of Montana. (f) Security Other Than Bond -- Stipulation of Parties. (1) In all cases under this rule where supersedeas bond or other terms that secure the opposing party’s rights are required, the court, in its discretion, may allow alternate forms of security other than a bond, when adequate equivalent security is provided and the appealing party can show that the judgment creditor’s recovery is not in jeopardy. (2) In all cases, the parties may by written stipulation waive the filing of security. (g) Appellate Court’s Power Not Limited. This rule does not limit the power of the appellate court or one of its judges or justices: (1) to stay proceedings -- or suspend, modify, restore, or grant an injunction -- while an appeal is pending; or (2) to issue an order to preserve the status quo or the effectiveness of the judgment to be entered. 143 (h) Stay with Multiple Claims or Parties. A court may stay the enforcement of a final judgment entered under Rule 54(b) until it enters a later judgment or judgments, and may prescribe terms necessary to secure the benefit of the stayed judgment for the party in whose favor it was entered. COMMITTEE NOTES The language of Rule 62 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Additionally, Rule 62(a), providing for a 14-day automatic stay period, except in cases of injunction and receivership, has been reinstated, following the Federal Rule. It is unclear to the Committee why Rule 62(a) was previously abrogated. Subsection (f)(2) preserves language from previous Rule 62(e) (“In all cases, the parties may by written stipulation waive the filing of security.”). Subsection (f)(1) is new and substantive. Because the definition of supersedeas bond has never been entirely clear and, in some cases, works harsh consequences, the decision was made to allow for the provision of other forms of security such as cash (as provided in section 25-1-401), an appropriate irrevocable letter of credit, a certificate of deposit, or other security in the court’s discretion. Stay of execution and bond practice is also governed by Rules 22 and 23 of the Montana Rules of Appellate Procedure. Rule 62.1. Indicative Rule on a Motion for Relief that is Barred by a Pending Appeal. (a) Relief Pending Appeal. If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the supreme court remands for that purpose or that the motion raises a substantial issue. (b) Notice to the Supreme Court. The movant must promptly notify the supreme court clerk if the district court states that it would grant the motion or that the motion raises a substantial issue. (c) Remand. The district court may decide the motion if the supreme court remands for that purpose. 144 COMMITTEE NOTES Montana adopts new Rule 62.1, following Federal Rule 62.1, allowing “indicative” rulings where a district court has lost jurisdiction because a matter is pending before the supreme court, but it may be beneficial to obtain a district court ruling. The rationale for adopting this new rule is the same as the federal rationale. The federal rationale for Federal Rule 62.1 from the Federal Committee Notes is as follows: This new rule adopts for any motion that the district court cannot grant because of a pending appeal the practice that most courts follow when a party makes a Rule 60(b) motion to vacate a judgment that is pending on appeal. After an appeal has been docketed and while it remains pending, the district court cannot grant a Rule 60(b) motion without a remand. But it can entertain the motion and deny it, defer consideration, or state that it would grant the motion if the court of appeals remands for that purpose or state that the motion raises a substantial issue. Experienced lawyers often refer to the suggestion for remand as an “indicative ruling.” (Appellate Rule 4(a)(4) lists six motions that, if filed within the relevant time limit, suspend the effect of a notice of appeal filed before or after the motion is filed until the last such motion is disposed of. The district court has authority to grant the motion without resorting to the indicative ruling procedure.) This clear procedure is helpful whenever relief is sought from an order that the court cannot reconsider because the order is the subject of a pending appeal. Rule 62.1 does not attempt to define the circumstances in which an appeal limits or defeats the district court’s authority to act in the face of a pending appeal. The rules that govern the relationship between trial courts and appellate courts may be complex, depending in part on the nature of the order and the source of appeal jurisdiction. Rule 62.1 applies only when those rules deprive the district court of authority to grant relief without appellate permission. If the district court concludes that it has authority to grant relief without appellate permission, it can act without falling back on the indicative ruling procedure. To ensure proper coordination of proceedings in the district court and in the appellate court, the movant must notify the circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district court states that it would grant the motion or that 145 the motion raises a substantial issue. Remand is in the court of appeals’ discretion under Appellate Rule 12.1. Often it will be wise for the district court to determine whether it in fact would grant the motion if the court of appeals remands for that purpose. But a motion may present complex issues that require extensive litigation and that may either be mooted or be presented in a different context by decision of the issues raised on appeal. In such circumstances the district court may prefer to state that the motion raises a substantial issue, and to state the reasons why it prefers to decide only if the court of appeals agrees that it would be useful to decide the motion before decision of the pending appeal. The district court is not bound to grant the motion after stating that the motion raises a substantial issue; further proceedings on remand may show that the motion ought not be granted. Rule 63. Judge’s Inability to Proceed. (a) Replacement Judge May Proceed. If a judge conducting a hearing or trial is unable to proceed, any other judge may proceed upon certifying familiarity with the record and determining that the case may be completed without prejudice to the parties. In a hearing or a nonjury trial, the successor judge must, at a party’s request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may also recall any other witness. (b) Chief Justice to Assign. The successor judge shall be assigned by the chief justice of the supreme court by written order and may be from a different district. COMMITTEE NOTES For reasons which are unclear, Montana did not have a counterpart to Federal Rule 63. It appears that Montana statutes, particularly sections 3-5-111 and -112, do not directly deal with a situation in which a judge is unable to act because of disability, death or disqualification which arises mid-trial or mid-hearing. Accordingly, it was decided to follow the Federal Rule. Prior to the 1991 amendment to Federal Rule 63, the rule authorized a successor judge to continue with the proceedings only when the original judge’s disability arose after a verdict was returned or findings of fact and conclusions of law were filed. Thus, most circuit courts of appeal held that if the judge’s disability occurred at an earlier point in the proceedings, a new trial was necessary. See 12 Moore’s Federal Practice, 3d, § 63 App. 101[1]. The amended rule allows a successor judge to assume duty and continue the proceedings at any time after a trial or hearing is commenced, if the judge is able to certify familiarity with the record and make a determination that the case may be completed without prejudice to the parties. 146 The rule provides for assignment of the replacement judge by the chief justice because replacements envisioned by this rule will usually be in emergencies and the regular rotation rules of the particular district may interfere with speedy replacement. TITLE VIII. Provisional and Final Remedies and Special Proceedings Rule 64. Seizing a Person or Property. At the commencement of and during the course of an action, every remedy is available that provides for seizing a person or property to secure satisfaction of the potential judgment. COMMITTEE NOTES The language of Rule 64 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules. Rule 65. Injunctions. The procedure for granting restraining orders and temporary and permanent injunctions shall be as provided by statute. COMMITTEE NOTES The Committee opted to continue Montana’s practice of governing injunction practice by statute. There is substantial case law in Montana regarding injunction procedure. The statutes and case law provide adequate guidance. *No Montana Rule 65.1.* COMMITTEE NOTES The Committee opted not to adopt the equivalent of Federal Rule 65.1 which deals with security and proceedings against sureties. Although Federal Rule 65.1 follows Rule 65, which deals with injunctions, Rule 65.1 regarding security and proceedings against sureties is broader than injunction bonds. Professor Moore describes some of the situations in which a surety may be required or permitted by the Federal Rules to enter into a bond or stipulation or other undertaking, including: (1) state proceedings to enforce a judgment, including a stay on appeal; (2) incidental to attachment, garnishment, and other provisional remedies where state law requires security; (3) as a condition to granting a TRO or preliminary injunction; and (4) security for costs under Rule 83. Moore’s Federal Practice, 3d, § 65.1.02. Rule 65.1 provides a summary procedure for the enforcement of a surety’s liability under these circumstances. “The importance of this provision is that it obviates the need to bring an independent action to enforce a liability of a surety and alternatively allows for a summary procedure on motion.” Id. Nothing in Rule 65.1, however, precludes a judgment creditor from bringing a wholly separate and independent action to enforce a surety’s liability. Id., § 65.1.03. 147 With respect to proceedings against a surety relating to a supersedeas bond for stay pending appeal, Rule 24(c), M. R. App. P., covers this, allowing a surety’s liability to be enforced on motion in the district court and irrevocably appointing the district court’s clerk as the surety’s agent on whom any papers may be served. Rule 66. Receivers. These rules govern an action in which the appointment of a receiver is sought or a receiver sues or is sued. But the practice in administering an estate by a receiver or a similar court-appointed officer must accord with Montana statutes and the historical practice in Montana courts or local rule. An action in which a receiver has been appointed may be dismissed only by court order. COMMITTEE NOTES The language of Rule 66 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 67. Deposit into Court. (a) Depositing Property. If any part of the relief sought is a money judgment or the disposition of a sum of money or some other deliverable thing, a party -- on notice to every other party and by leave of court -- may deposit with the court all or part of the money or thing, whether or not that party claims any of it. The depositing party must deliver to the clerk a copy of the order permitting deposit. (b) Investing and Withdrawing Funds. Money paid into court under this rule must be deposited and withdrawn in accordance with the provisions of Title 25, Chapter 8. COMMITTEE NOTES The language of Rule 67 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes have also been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Note, however, that Federal Rule 67(b) requires that “[t]he money must be deposited in an interest-bearing account or invested in a court-approved, interest-bearing instrument.” Montana did not adopt that language because it is potentially inconsistent with the statutory language in Title 25, Chapter 8. Rule 68. Offer of Judgment. (a) Making an Offer; Judgment on an Accepted Offer. More than 14 days before the trial begins, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued. If, within 14 days after 148 being served, the opposing party serves written notice accepting the offer, either party may then file the offer and notice of acceptance, plus proof of service. The clerk must then enter judgment. (b) Unaccepted Offer. An unaccepted offer is considered withdrawn, but it does not preclude a later offer. Evidence of an unaccepted offer is not admissible except in a proceeding to determine costs. (c) Offer after Liability is Determined. When one party’s liability to another has been determined but the extent of liability remains to be determined by further proceedings, the party held liable may make an offer of judgment. It must be served within a reasonable time -- but at least 14 days -- before a hearing to determine the extent of liability. (d) Paying Costs after an Unaccepted Offer. If the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made. COMMITTEE NOTES The language of Rule 68 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 69. Execution. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of and supplementary to execution shall be in accordance with the statutes of the state of Montana. In aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for taking depositions. COMMITTEE NOTES The Committee recommends that the present Montana rule be re-adopted with no changes. The Federal Rule is complicated by Federal statutory idiosyncrasies and the fact that Federal procedure incorporates “the procedure of the state where the court is located.” Rule 70. Enforcing a Judgment for a Specific Act. (a) Party’s Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done 149 -- at the disobedient party’s expense -- by another person appointed by the court. When done, the act has the same effect as if done by the party. (b) Vesting Title. If the real or personal property is within the state, the court -- instead of ordering a conveyance -- may enter a judgment divesting any party’s title and vesting it in others. That judgment has the effect of a legally-executed conveyance. (c) Obtaining a Writ of Attachment or Sequestration. On application by a party entitled to performance of an act, the court may order the clerk to issue a writ of attachment or sequestration against the disobedient party’s property to compel obedience. (d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance. (e) Holding in Contempt. The court may also hold the disobedient party in contempt. COMMITTEE NOTES The language of Rule 70 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 71. Enforcing Relief For or Against a Nonparty. When an order either grants relief to a nonparty or may be lawfully enforced against a nonparty, the procedure for enforcing the order is the same as for a party. COMMITTEE NOTES The language of Rule 71 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. * Montana has no Rule 71.1.* COMMITTEE NOTES Condemnation law is addressed by statute in Montana, so the Committee opted to adopt no counterpart to Federal Rule 71.1. 150 TITLE IX. Appeals COMMITTEE NOTES The Federal Rules’ title “IX” is for “Special Proceedings” and includes Rules 71 through 76, dealing with condemnation and with magistrate judges. Montana’s title IX, on the other hand, is labeled “Appeals.” Recommendation is to retain Montana’s title “IX. Appeals” in connection with Rule 72. Rule 72. Appeal from A District Court to the Supreme Court. When an appeal is permitted by law from a district court to the supreme court of Montana, or in any case where original proceedings are commenced in the supreme court, such appeal or original proceeding shall be taken, perfected, and prosecuted pursuant to the provisions of the Montana Rules of Appellate Procedure and controlling statutes to the extent that they are not superseded by the Montana Rules of Appellate Procedure. COMMITTEE NOTES The Committee decided not to change Rule 72. TITLE X. District Courts and Clerks: Conducting Business; Issuing Orders *No Montana Rules 73-76* COMMITTEE NOTES Federal Rules 73 through 76 address magistrate judges. There are no counterpart Montana Rules 73 through 76. Rule 77. Conducting Business; Clerk’s Authority; Notice of an Order or Judgment. (a) When Court Is Open. Every district court is considered always open for filing any paper, issuing and returning process, making a motion, or entering an order. (b) Place for Trial and Other Proceedings. Every trial on the merits must be conducted in open court and, so far as convenient, in a regular courtroom. Any other act or proceeding may be done or conducted by a judge in chambers, without the attendance of the clerk or other court official, and anywhere inside or outside the district. But no hearing -- other than one ex parte -- may be conducted outside the district unless all the affected parties consent. (c) Clerk’s Orders. Subject to the court’s power to suspend, alter or rescind the clerk’s action for good cause, the clerk may: (A) issue process; (B) enter a default; (C) enter a default judgment under Rule 55(b)(1); and (D) act on any other matter that does not require the court’s action. 151 (d) Notice of Entry of Judgment or Order Served. Within 14 days after entry of judgment or an order in an action in which an appearance has been made, notice of such entry, together with a copy of such judgment or order or general description of the nature and amount of relief and damages thereby granted, shall be served by the prevailing party upon all parties who have made an appearance, but any other party may in addition serve a notice of such entry in the manner provided in Rule 5 for the service of papers. (e) Transmittal of File on Removal. Upon the filing of a copy of the petition for removal of any state district court action to the district court of the United States, district of Montana, and a request in writing therefor, the clerk of such state district court shall promptly deliver to the clerk of court of the district court of the United States, district of Montana, all papers then in the original state court file, or theretofore issued and subsequently filed and shall keep in the state court file only the copy of the petition for removal and such papers as were filed with the request for removal. COMMITTEE NOTES The language of Rule 77 has been amended as part of the general restyling of the Civil Rule to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are largely stylistic. Federal wording modifications of Rules 77(a) and (b) were followed. Also, Federal Rule 77(c)(2), Orders, is adopted as Rule 77(c). Federal Rule 77(c)(1), dealing with Hours, is not adopted because the Civil Rules do not need to micro-manage the operations of the offices of the clerks of court. Montana retains its previous practice under Rule 77(d) of requiring the prevailing party (or any other party) to serve the notice of entry of judgment, rather than have that done by the clerk of the court. * No Montana Rule 78.* COMMITTEE NOTES Montana previously had no Rule 78. The Committee opted not to adopt counterpart Federal Rule 78. The Committee recommends that Montana not adopt a counterpart Rule 78. This matter is adequately addressed in the district court rules and in the local court rules. * No Montana Rule 79.* COMMITTEE NOTES The Committee decided that Montana not adopt a counterpart to Federal Rule 79. This matter is adequately addressed in sections 3-5-501 through -509. 152 Rule 80. Stenographic Transcript as Evidence. If stenographically reported testimony at a hearing or trial is admissible in evidence at a later trial, the testimony may be proved by a transcript certified by the person who reported it. COMMITTEE NOTES The language of Rule 80 has been amended as part of the revisions to make the language consistent with the Federal Rules which were recently restyled to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. TITLE XI. General Provisions COMMITTEE NOTES The Committee decided not to change Title XI. Rule 81. Applicability in General. (a) Appeals to District Courts. These rules do not supersede the provisions of statutes relating to appeals to or review by the district courts, but shall govern procedure and practice relating thereto insofar as these rules are not inconsistent with such statutes. (b) Rules Incorporated into Statutes. Where any statute heretofore or hereafter enacted, whether or not applicable to a special statutory proceeding, provides that any act in a civil proceeding in a district court shall be done in the manner provided by law or as in a civil action or as provided by any statute superseded by these rules, such act shall be done in accordance with these rules and the procedure thereon shall conform to these rules, insofar as practicable. COMMITTEE NOTES Subsections (b) and (c) are retained in present form but relettered (a) and (b). Subsection (a) “Special statutory proceedings” is deleted because it is no longer useful. Rule 82. Jurisdiction and Venue Unaffected. Except as provided in Rule 4, these rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts. COMMITTEE NOTES The language of Rule 82 has been amended as part of the general restyling of the Civil rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. 153 Rule 83. Rules by District Courts. Each district court, upon agreement of the judges or a majority thereof, may from time to time make and amend rules governing its practice not inconsistent with these rules or other rules prescribed by the supreme court. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the supreme court of this state. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules. COMMITTEE NOTES The Committee decided not to change Rule 83. Rule 84. Forms. The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate. COMMITTEE NOTES The language of Rule 84 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. These changes are intended to be stylistic only. Rule 85. Title. These rules shall be known as the Montana Rules of Civil Procedure and may be cited as M. R. Civ. P. COMMITTEE NOTES The Committee decided not to change Rule 85. Rule 86. Effective Date -- Statutes Superseded. (a) In General. These rules and any amendments take effect at the time specified by the supreme court. They govern: (1) proceedings in an action commenced after their effective date; and (2) proceedings after that date in an action then pending unless: (A) the supreme court specifies otherwise; or (B) the court determines that applying them in a particular action would be unfeasible or work an injustice. (b) October 1, 2011 Amendments. If any provision in Rules 1-86 conflicts with another law, priority in time for the purpose of section 3-2-706 is not affected by the amendments taking effect on October 1, 2011. 154 COMMITTEE NOTES The language of Rule 86 has been amended as part of the general restyling of the Civil Rules to make them more easily understood. The changes also have been made to make style and terminology consistent throughout these rules and to conform to the recent changes in the Federal Rules. Significant detail in previous Rule 86 concerning procedures for adoption of rule amendments, submission to the public and to the bar are deleted. Previous Rule 86(b) referenced “Statutes superseded” and contained Tables B and C listing correlating rules with superseded statutes. Tables B and C, which reference the old Revised Codes Annotated, 1947, are no longer of utility and are deleted.	December 14, 2016
bbe88ad1-712f-44fd-a7ff-634a63cdd276	Citizens v. Flathead Co. Comm.	2016 MT 325	DA 15-0582	Montana	Montana Supreme Court	DA 15-0039 IN THE SUPREME COURT OF THE STATE OF MONTANA 2013 MT 316 IN THE MATTER OF: Z. F., Respondent and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. DI 15-0022 Honorable Dirk M. Sandefur, Presiding Judge COUNSEL OF RECORD: For Appellant: Michael J. Moore; Missoula, MT For Appellee: Tim Fox; Helena ,MT; Eileen Joyce; Butte, MT Jordan Rhodes Kilby; Missoula, MT Submitted on Briefs: [SubmissionDate] Decided: Filed: __________________________________________ Clerk 12/16/2016 Case Number: DA 15-0582	December 16, 2016
964e987d-c8e1-4b9a-b45e-3f725e07ca46	State v. J. Hofer	2016 MT 328N	DA 15-0560	Montana	Montana Supreme Court	DA 15-0560 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 328N STATE OF MONTANA, Plaintiff and Appellee, v. JOHNNY GEORGE HOFER, Defendant and Appellant. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Valley, Cause No. DC-2015-06 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeremy S. Yellin, Attorney at Law, Havre, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal S. Wellenstein Assistant Attorney General, Helena, Montana Dylan J. Jensen, Valley County Attorney, Glasgow, Montana Submitted on Briefs: November 2, 2016 Decided: December 13, 2016 Filed: /S/ ED SMITH Clerk 12/13/2016 Case Number: DA 15-0560 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In September 2014, Hofer was cited for aggravated driving under the influence of alcohol, a misdemeanor. In April 2015, the State of Montana amended the complaint to charge Hofer with first offense driving while under the influence of alcohol (DUI), also a misdemeanor. The Valley County Justice Court conducted a jury trial and the six-person jury found Hofer guilty. Following sentencing, Hofer filed a notice of appeal to the Seventeenth Judicial District Court, Valley County. The Justice of the Peace issued an order staying imposition of Hofer’s sentence pending appeal. ¶3 The District Court conducted a jury trial on July 30 and 31, 2015. During trial, Hofer objected to admission of the blood alcohol test results asserting that the State failed to establish that his blood was collected in conformance with Admin. R. M. 23.4.220(2) (2005) (hereinafter Rule 23.4.220(2) or the Rule). His specific complaint was that the State provided no testimony that Hofer’s skin at “the area of the puncture” was “thoroughly cleansed and disinfected” as required by the Rule. ¶4 The State responded that Stacy Garwood, a registered nurse at the Frances Mahon Deaconess Hospital in Glasgow, Montana, testified that she performed Hofer’s blood 3 draw using an evidence collection kit supplied by the Valley County Sheriff’s Department and containing a Betadine swab for cleansing the area of the puncture. Additionally, and in accordance with procedure, Garwood initialed the “Checklist for Medical Staff”—a form included in the evidence collection kit. By initialing the form, Garwood indicated that “[a] non-alcoholic or non-phenolic swab was used to prepare the site for blood draw.” The form further provided that “Povidine-Iodine swab supplied in kit or an appropriate substitute, betadine solution, may be used.” ¶5 After discussion with the attorneys outside of the presence of the jury and review of the evidence presented, the District Court overruled Hofer’s objection. The court further ruled that whether Garwood’s testimony that she used Betadine to swab the puncture site was “sufficient to comply with the administrative procedure for ‘thoroughly cleansing and disinfecting’” was a question of fact that could be argued before the jury. ¶6 The jury found Hofer guilty of misdemeanor DUI and the District Court sentenced Hofer to six months in the Valley County jail with all but two days suspended. The court gave Hofer credit for the two days he spent in jail after his arrest. Hofer was also ordered to pay a $500 fine and $75 in surcharges. The District Court stayed imposition of Hofer’s sentence pending his appeal to this Court. ¶7 We review a district court’s rulings on the admission of evidence for an abuse of discretion. State v. Awbery, 2016 MT 48, ¶ 10, 382 Mont. 334, 367 P.3d 346. Additionally, whether an adequate foundation supports the admission of evidence is within the trial court’s discretion. State v. Delaney, 1999 MT 317, ¶ 14, 297 Mont. 263, 991 P.2d 461. 4 ¶8 On appeal, Hofer maintains that the District Court committed reversible error when it admitted Hofer’s blood alcohol sample results into evidence. He contends that the State failed to lay a proper foundation that Garwood properly performed Hofer’s blood draw. He opines that the jury would not have found him guilty if the District Court had granted his motion to suppress the test evidence. ¶9 The State counters that § 61-8-404(1)(b)(ii), MCA, rather than Rule 23.4.220(2), controls the admissibility of a blood test report in a DUI case. It asserts that the State Crime Lab report on Hofer’s blood test result was in compliance with § 61-8-404, MCA, and therefore was properly admitted. Moreover, the State argues that Garwood’s testimony that she swabbed Hofer’s arm with a Betadine swab prior to puncture establishes compliance with the requirement in Rule 23.4.220(2) to thoroughly clean and disinfect Hofer’s skin. ¶10 Section 61-8-404(1)(b)(ii), MCA, addresses under what conditions a blood sample analysis report is admissible in a trial or criminal action against a DUI defendant. As Hofer is not challenging the State laboratory’s analysis and reporting of his blood sample but rather is challenging the hospital’s drawing of the blood sample, we need not address the applicability of § 61-8-404(1)(b)(ii), MCA. Rule 23.4.220(2) provides “The skin at the area of puncture must be thoroughly cleansed and disinfected with an aqueous solution of a non-volatile antiseptic i.e. betadine, etc. Alcohol phenolic solution may not be used.” In this case, Garwood, a registered nurse with eight years’ experience and three years’ experience as a CNA, testified that she swabbed Hofer’s arm with a Betadine swab before she drew blood from Hofer. While Garwood did not expressly testify that she 5 “thoroughly cleansed and disinfected” Hofer’s arm with the Betadine solution, we conclude the District Court did not abuse its discretion in allowing the evidence to go to the jury. Additionally, while defendants charged with DUI are entitled to the procedural safeguards set forth in the Administrative Rules of Montana, to require a witness to recite specific words in the Rule elevates form over substance. Garwood testified she cleaned the site with Betadine. She also completed the Checklist for Medical Staff by initialing the various provisions including the provision that a Betadine swab was used to “prepare the site for blood draw.” Clearly, for a medical professional, preparing the site for a blood draw means to clean and disinfect the site with an appropriate solution prior to puncturing the skin. The State’s evidence established that Garwood performed Hofer’s blood test in accordance with the approved Checklist and the applicable Rule. ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. In the opinion of the Court, the District Court did not abuse its discretion is denying Hofer’s motion to suppress the blood test evidence and admitting the evidence during trial. ¶12 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE	December 13, 2016
600a7b83-1d03-42ae-94f6-74a5f3fe60c9	State v. Nuessle	2016 MT 335	DA 14-0636	Montana	Montana Supreme Court	DA 14-0636 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 335 STATE OF MONTANA, Plaintiff and Appellee, v. JERALD NUESSLE, Defendant and Appellant. APPEAL FROM: District Court of the Twentieth Judicial District, In and For the County of Sanders, Cause No. DC 13-47 Honorable Deborah Kim Christopher, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mark W. Mattioli, Assistant Attorney General, Helena, Montana Robert Zimmerman, Sanders County Attorney, Amy Kenison, Deputy County Attorney, Thompson Falls, Montana Submitted on Briefs: October 26, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 14-0636 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Jerald Nuessle (Nuessle) appeals the judgment entered by the Twentieth Judicial Court, Sanders County, convicting him of felony Obstructing Justice under § 45-7- 303(2)(a), MCA. We affirm and restate the issues as follows: 1. Did the District Court improperly instruct the jury, committing plain error? 2. Was defense counsel ineffective for failing to submit a jury instruction defining the statutory term “knowing”? FACTUAL AND PROCEDURAL BACKGROUND ¶2 Shelley Nelson (Nelson), Nuessle’s former girlfriend, stole a vehicle in Lewistown and drove it to Thompson Falls. Acting on a tip, law enforcement officers from the City of Thompson Falls, Sanders County, and the Montana Highway Patrol converged on the home of Sharon Dexter (Dexter), where Nelson and the stolen vehicle were reported to be. ¶3 Dexter, her son, John Dexter, Nuessle, and Nelson were in the Dexter residence when police arrived. Two officers approached the front door of the residence while a third officer took a position near the back door. One officer heard people running inside the house. The two officers at the front door advised Dexter they had a warrant for Nelson’s arrest, and asked if Nelson was inside. Dexter answered that she believed Nelson was inside and gave permission to the officers to enter and search for Nelson. ¶4 Dexter led officers through the living room and down the hallway to the bedrooms. Upon arriving at the back bedroom, the officers encountered Nuessle, who was sitting on a bed. Nuessle reported that Nelson had fled out the back door. However, 3 the officer stationed outside the back door stated that Nuessle had looked outside the door, observed the law enforcement presence, and retreated back inside the residence. No one else exited the residence. Police located Nelson underneath the headboard of the bed upon which Nuessle had been sitting, and arrested her. ¶5 Nelson initially told officers that Nuessle was not involved in hiding her from police. She later admitted that she hid from officers, knowing law enforcement was looking for her, and that Nuessle had aided her in hiding, including telling officers that she had fled from the residence, which was not true. Nelson explained that she had initially lied about Nuessle’s involvement because she was “covering for [Nuessle]” and “didn’t want him to get in trouble.” ¶6 Nuessle was charged with Obstructing Justice under § 45-7-303(2)(a), MCA, which provides that “[a] person commits the offense of obstructing justice if, knowing another person is an offender, the person purposely: (a) harbors or conceals an offender.” Nelson pled guilty to theft charges and testified at Nuessle’s trial, stating: [Nuessle] came running in from the kitchen area and he said, oh shit, let’s hide, let’s hide you, you know, let’s hide you; run straight back to his bedroom. He lifted up part of the bed to help me under it. I crawled under. He put it back down, and I said, oh, they’re going to know I’m here obviously if you don’t throw some of my stuff under here. So he threw some of my stuff under there and hid me under the bed. And then he sat on the bed. Nuessle also testified, stating that he did not know Nelson had stolen the pickup, but, rather, was under the impression Nelson had borrowed the pickup from a friend. He denied knowing that Nelson was under the bed. 4 ¶7 The jury instructions included the following: Instruction No. 8 A person commits the offense of obstructing justice if, knowing a person is an offender, he purposely harbors or conceals an offender. Instruction No. 9 To convict the Defendant of the charge of obstructing justice, the State must prove the following elements: 1. That the Defendant knew that Shelly Nelson was an offender; AND 2. That the Defendant harbored or concealed Shelly Nelson. AND 3. That the Defendant acted purposely. The instructions defined “purposely” but did not separately define “knowing” or “knew.” Nuessle did not offer an instruction defining these terms. Nuessle was convicted by the jury. He appeals. STANDARDS OF REVIEW ¶8 We review jury instructions in criminal cases to determine whether the instructions as a whole fully and fairly instruct the jury on the applicable law. State v. Williams, 2015 MT 247, ¶ 10, 380 Mont. 445, 358 P.3d 127 (citing State v. Myran, 2012 MT 252, ¶ 16, 366 Mont. 532, 289 P.3d 118). ¶9 Claims of ineffective assistance of counsel that are reviewed on direct appeal present mixed questions of law and fact, which we review de novo. State v. Root, 2015 MT 310, ¶ 8, 381 Mont. 314, 359 P.3d 1088; State v. Chafee, 2014 MT 226, ¶ 11, 376 Mont. 267, 332 P.3d 240 (citing State v. Ugalde, 2013 MT 308, ¶ 28, 372 Mont. 234, 311 P.3d 772). 5 DISCUSSION ¶10 1. Did the District Court improperly instruct the jury, committing plain error? ¶11 Nuessle argues that “the failure to include a jury instruction defining the ‘knowing’ element of [O]bstructing [J]ustice relieved the State of its burden to prove Nuessle was aware that [Nelson] was an offender,” and, thus, a requisite mental state was not established and his due process rights were violated. Because neither an objection was made nor an instruction offered by his counsel, Neussle asks that this Court exercise plain error review or, alternatively, conclude his counsel rendered ineffective assistance. Neussle asks that his trial be vacated and a new trial ordered. The State responds that plain error review is inappropriate “because the jury was instructed regarding all of the elements of the offense of obstructing justice” and, therefore, Nuessle’s due process rights were not violated. Further, the State argues the meaning of the terms “knowing” and “knew” are easily comprehended by jurors and Nuessle was not prejudiced by the lack of a definitional instruction. The State contends it was not relieved of proving an element of the offense, and clearly proved that Nuessle knew or was aware that Nelson was an offender. ¶12 Obtaining plain error review of unpreserved issues requires the appellant to: (1) show “the claimed error implicates a fundamental right”; and (2) “firmly convince this Court that failure to review would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial proceedings, or compromise the integrity of the judicial process.” Williams, ¶ 16 (citing State v. Carnes, 2015 MT 6 101, ¶ 13, 378 Mont. 482, 346 P.3d 1120); accord State v. Favel, 2015 MT 336, 381 Mont. 472, 362 P.3d 1126. “We invoke plain error review sparingly, on a case-by-case basis, according to narrow circumstances, and by considering the totality of the circumstances.” Williams, ¶ 16 (citing State v. Wilson, 2011 MT 277, ¶ 16, 362 Mont. 416, 264 P.3d 1146). Finally, we bear in mind the appellant “carries the burden of proof.” Favel, ¶ 27 (citing State v. Hart, 2000 MT 332, ¶ 52, 303 Mont. 71, 15 P.3d 917). ¶13 Obstructing Justice by harboring or concealing an offender, § 45-7-303(2)(a), MCA, uniquely references two mental states. However, the general mental state, formerly known in Montana law as the mens rea, for commission of this crime is “purposely.” Black’s Law Dictionary defines mens rea as: “The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime. . . . [Mens rea] describes the state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense.” Black’s Law Dictionary 1134-35 (Bryan A. Garner ed., 10th ed. 2014) (emphasis added). Thus, the harboring or concealing conduct criminalized by § 45-7-303(2)(a), MCA, must be committed purposely. In addition, the elements of the offense require the defendant to know a particular fact: that the person he was harboring was an offender.1 ¶14 The record reveals the defense addressed the elements of Obstructing Justice in its opening statement, and both sides addressed the elements during their closing arguments. 1 “Offender” is defined as “a person who has been or is liable to be arrested, charged, convicted, or punished for a public offense.” Section 45-7-303(1), MCA. 7 The jury was properly instructed on all of the elements of the offense, including the requirement that Neussle knew Nelson was an offender. Even without an instruction defining “knowing,” the State was not relieved of its burden to prove the “knowing” element, and the jury was well aware of the burden. We would note that a jury “need not be instructed on words or phrases of common understanding or meaning.” State v. Crisp, 249 Mont. 199, 205, 814 P.2d 981, 984 (1991) (citing State v. Gould, 216 Mont. 455, 477, 704 P.2d 20, 34 (1985)). ¶15 We decline to undertake consideration of the merits of the instruction issue pursuant to the plain error doctrine because failure to review would not “result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial proceedings, or compromise the integrity of the judicial process.” Williams, ¶ 16. ¶16 2. Was defense counsel ineffective for failing to submit a jury instruction defining the statutory term “knowing”? ¶17 We evaluate ineffective assistance of counsel claims under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and Whitlow v. State, 2008 MT 140, 343 Mont. 90, 183 P.3d 861. A defendant must show that his attorney’s performance was deficient by demonstrating that it fell below an objective standard of reasonableness, and that the attorney’s deficient performance prejudiced the defense. Whitlow, ¶ 10. “A defendant must satisfy both prongs of this test in order to prevail on an ineffective assistance of counsel claim.” Whitlow, ¶ 11. “[T]he proper measure of counsel’s performance is objective reasonableness.” Whitlow, ¶ 12. 8 ¶18 Nuessle argues that his trial counsel was ineffective because she failed to propose a jury instruction defining “knowing” or “knew.” Nuessle contends these actions reduced the State’s burden as to the mental state element of the offense and that there was no plausible justification for trial counsel’s failure to submit the instruction. The State responds that Nuessle’s defense counsel performed reasonably and within established professional norms. We agree. ¶19 Within the stated elements of the offense, the word “knowing,” as explained above, fulfilled a limited purpose that was commonly understood by the jurors, and was emphasized by the parties during trial. The State’s burden was not reduced by the absence of a specific instruction defining the term, and defense counsel’s performance was not deficient for failing to offer such an instruction. Therefore, Nuessle has not established that he received ineffective assistance of counsel. ¶20 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA	December 20, 2016
6a9edbdc-cd12-4db4-8cfe-4731c5884dc7	IN RE THE RULES OF PROFESSIONAL CON	N/A	AF 09-0688	Montana	Montana Supreme Court	IN THE SUPREME COURT OF THE STATE OF MONTANA AF 09-0688 _________________ IN RE THE RULES OF PROFESSIONAL CONDUCT O R D E R _________________ After soliciting and considering comments on the proposal, the Court hereby adopts a proposed revision to Rule 1.18(e)(1) of the Montana Rules of Professional Conduct. The Montana Justice Foundation Board and the State Bar of Montana Board of Trustees jointly petitioned for the revision, regarding noncompliance with annual trust account and IOLTA reporting requirements. Similar to the rules regarding failure to pay state bar dues and other assessments, the revision gives the State Bar of Montana authority to suspend Montana attorneys from the practice of law if they fail to file annual IOLTA certification. A non-complying lawyer would receive written notice allowing the lawyer thirty days from the date of the notice to comply before the lawyer’s license would be suspended. The revision is reflected in the text of the Montana Rules of Professional Conduct appended to this Order. The revision is effective immediately. This Order shall be published on the Montana Supreme Court website and notice of this Order shall be posted on the website of the State Bar of Montana and in the next available issue of the Montana Lawyer. The Clerk is directed to provide copies of this Order to the Montana State Law Library; the State Bar of Montana; Todd Everts, Connie Dixon, and Derek Gallagher at Montana Legislative Services Division; Helene Haapala and Colena Webb at Thomson Reuters; and Robert Roy and Patti Glueckert at LexisNexis. Dated this 16th day of December, 2016. /S/ MIKE McGRATH /S/ BETH BAKER /S/ LAURIE McKINNON 12/16/2016 Case Number: AF 09-0688 2 /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE 1 MONTANA RULES OF PROFESSIONAL CONDUCT PREAMBLE: A LAWYER’S RESPONSIBILITIES (1) A lawyer shall always pursue the truth. (2) A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice. (3) As a representative of clients, a lawyer performs various functions. In performance of any functions a lawyer shall behave consistently with the requirements of honest dealings with others. As advisor, a lawyer endeavors to provide a client with an informed understanding of the client’s legal rights and obligations and explains their practical implications. As advocate, a lawyer asserts the client’s position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements under these Rules of honest dealings with others. As an evaluator, a lawyer acts by examining a client’s legal affairs and reporting about them. (4) In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonrepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, e.g., Rules 1.12 and 2.3. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4. (5) In all professional functions a lawyer should be competent, prompt and diligent. Competence implies an obligation to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. A lawyer should maintain communication with a client concerning the representation. A lawyer should keep in confidence information relating to representation of a client except so far as disclosure is required or permitted by the Rules of Professional Conduct or other law. (6) A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. A lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of official action, it is also a lawyer’s duty to uphold legal process. (7) As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to 2 maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. (8) Many of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service. (9) A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are harmonious. A lawyer can be a dedicated advocate on behalf of a client, even an unpopular one, but in doing so must comply with these Rules of Professional Conduct. So also, a lawyer can be sure that preserving client confidences ordinarily serves the public interest because people are more likely to seek legal advice, and thereby heed their legal obligations, when they know their communications will be private. (10) In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules. These principles include the lawyer’s obligation to protect and pursue a client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system. (11) The legal profession is self-governing. Although other professions also have been granted powers of self-government, the legal profession is unique in this respect because of the close relationship between the profession and the processes of government and law enforcement. This connection is manifested in the fact that ultimate authority over the legal profession is vested in the courts. (12) Self-regulation helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice. (13) The legal profession’s relative autonomy carries with it special responsibilities of self-government. The profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar. Every lawyer is responsible for observance of the Rules of Professional Conduct. A lawyer should also aid in securing their observance by other 3 lawyers. Neglect of these responsibilities compromises the independence of the profession and the public interest which it serves. (14) Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. All lawyers understand that, as officers of the court, they have a duty to be truthful, which engenders trust in both the profession and the rule of law. The Rules of Professional Conduct, when properly applied, serve to define that relationship. Trust in the integrity of the system and those who operate it is a basic necessity of the rule of law; accordingly truthfulness must be the hallmark of the legal profession, and the stock-in-trade of all lawyers. (15) The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself. Some of the Rules are imperatives, cast in the terms “shall” or “shall not.” These define proper conduct for purposes of professional discipline. Others, generally cast in the term “may,” are permissive and define areas under the Rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. Other Rules define the nature of relationships between the lawyer and others. The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role. Many of the Comments use the term “should.” Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules. (16) The Rules presuppose a larger legal context shaping the lawyer’s role. That context includes court rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and substantive and procedural law in general. The Comments are sometimes used to alert lawyers to their responsibilities under such other law. (17) Compliance with the Rules, as with all law in an open society, depends primarily upon understanding and voluntary compliance, secondarily upon reinforcement by peer and public opinion and finally, when necessary, upon enforcement through disciplinary proceedings. The Rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules. The Rules simply provide a framework for the ethical practice of law. (18) Furthermore, for purposes of determining the lawyer’s authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists. Most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so. But there are some duties, such as that of confidentiality under Rule 1.6, that attach when the lawyer agrees to consider whether a client-lawyer relationship shall be established. See Rule 1.20. Whether a client-lawyer relationship exists for any specific purpose can depend on the circumstances and may be a question of fact. (19) Under various legal provisions, including constitutional, statutory and common law, the responsibilities of government lawyers may include authority concerning legal matters that ordinarily reposes in the client in private client-lawyer relationships. For 4 example, a lawyer for a government agency may have authority on behalf of the government to decide upon settlement or whether to appeal from an adverse judgment. Such authority in various respects is generally vested in the attorney general and the state’s attorney in state government, and their federal counterparts, and the same may be true of other government law officers. Also, lawyers under the supervision of these officers may be authorized to represent several government agencies in intragovernmental legal controversies in circumstances where a private lawyer could not represent multiple private clients. These Rules do not abrogate any such authority. (20) Failure to comply with an obligation or prohibition imposed by a Rule is a basis for invoking the disciplinary process. The Rules presuppose that disciplinary assessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of a sanction, depend on all the circumstances, such as the willfulness and seriousness of the violation, extenuating factors and whether there have been previous violations. (21) Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule provides just basis for self-assessment by a lawyer of his/her conduct or a basis for sanctioning a lawyer under the disciplinary process does not imply that an opposing party or lawyer has standing to seek enforcement of the Rules in a collateral proceeding or transaction outside of the disciplinary process. RULE 1.0: TERMINOLOGY (a) “Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true. A person’s belief may be inferred from circumstances. (b) “Bona fide” denotes in or with good faith; honestly, openly, and sincerely; without deceit or fraud. (c) “Consult” or “consultation” denotes communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question. (d) “Confirmed in writing,” when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (g) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter. 5 (e) “Firm” or “law firm” denotes a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a legal services organization or the legal department of a corporation or other organization. (f) “Fraud” or “fraudulent” denotes conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. (g) “Informed consent” denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. (h) “Knowingly,” “known” or “knows” denotes actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances. (i) “Partner” denotes a member of a law partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. (j) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer denotes the conduct of a reasonably prudent and competent lawyer. (k) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer denotes that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable. (l) “Reasonably should know” when used in reference to a lawyer denotes that a lawyer of reasonable prudence and competence would ascertain the matter in question. (m) “Screened” denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law. (n) “Substantial” when used in reference to degree or extent denotes a material matter of clear and weighty importance. (o) “Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party’s interests in a particular matter. (p) “Writing” or “written” denotes a tangible or electronic record of a communication or representation, including handwriting, typewriting, printing, Photostatting, photography, audio or video recording, and electronic communications. A “signed” writing includes the electronic equivalent of a signature, such as an electronic sound, symbol or process, which is attached to a writing and executed or adopted by a person with the intent to sign the writing. 6 CLIENT-LAWYER RELATIONSHIP RULE 1.1: COMPETENCE A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. (b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities. (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing. (1) The client’s informed consent must be confirmed in writing unless: (i) the representation of the client consists solely of telephone consultation; (ii) the representation is provided by a lawyer employed by a nonprofit legal services program or participating in a nonprofit court-annexed legal services program and the lawyer’s representation consists solely of providing information and advice or the preparation of court-approved legal forms; or (iii) the court appoints the attorney for a limited purpose that is set forth in the appointment order. (2) If the client gives informed consent in writing signed by the client, there shall be a presumption that: (i) the representation is limited to the attorney and the services described in the writing; and (ii) the attorney does not represent the client generally or in matters other than those identified in the writing. (d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. 7 RULE 1.3: DILIGENCE A lawyer shall act with reasonable diligence and promptness in representing a client. RULE 1.4: COMMUNICATION (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(g), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. RULE 1.5: FEES (a) A lawyer shall not make an agreement for, charge or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent. (b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing. This paragraph does not apply in any matter in which it is reasonably foreseeable that total cost to a client, including attorney fees, will be $500 or less. (c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall 8 state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (d) A lawyer shall not enter into an arrangement for, charge or collect: (1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of maintenance or support or property settlement in lieu thereof; or (2) a contingent fee for representing a defendant in a criminal case. (e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (3) the total fee is reasonable. RULE 1.6: CONFIDENTIALITY OF INFORMATION (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to secure legal advice about the lawyer’s compliance with these Rules; (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client; or (4) to comply with other law or a court order. (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client. 9 RULE 1.7: CONFLICT OF INTEREST: CURRENT CLIENTS (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. RULE 1.8: CONFLICT OF INTEREST: CURRENT CLIENTS: SPECIFIC RULES (a) A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless: (1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; (2) in matters in which a lawyer wishes to assert a retaining lien against client property, papers or materials in the lawyer’s possession to secure payment for the lawyer’s services and costs advanced relating to such property, papers or materials, a written agreement for such a lien shall expressly set forth the limitations contained in paragraph (i)(3); (3) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (4) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction. (b) A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules. (c) A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to 10 the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative. (d) Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. (e) A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; (2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; (3) a lawyer may, for the sole purpose of providing basic living expenses, guarantee a loan from a regulated financial institution whose usual business involves making loans if such loan is reasonably needed to enable the client to withstand delay in litigation that would otherwise put substantial pressure on the client to settle a case because of financial hardship rather than on the merits, provided the client remains ultimately liable for repayment of the loan without regard to the outcome of the litigation and, further provided that neither the lawyer nor anyone on his/her behalf offers, promises or advertises such financial assistance before being retained by the client. (f) A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives written informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by Rule 1.6. (g) A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. (i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer: 11 (1) may acquire and assert a charging lien only against causes of action or counterclaims in litigation pursuant to and only to the extent specified in MCA 37- 61-420(2); such a charging lien does not extend to other client property, papers or materials in the lawyer’s possession, to any matter not in litigation, or to any matter otherwise not covered by the specific language of MCA 37-61-420(2); (2) may contract with a client for a reasonable contingent fee in a civil case; and (3) may not acquire or assert a retaining lien to secure payment due for the lawyer’s services against any client property, papers or materials other than those related to the matter for which payment has not been made and, upon termination of representation, shall deliver to the client any client property, papers or materials reasonably necessary to protect the client’s interest in the matter to which the property, papers or materials relate as provided in Rule 1.16(d). (j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. (k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them. RULE 1.9: DUTIES TO FORMER CLIENTS (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client: (1) whose interests are materially adverse to that person; and (2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client. RULE 1.10: IMPUTATION OF CONFLICTS OF INTEREST: GENERAL RULE (a) While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. 12 (b) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) any lawyer remaining in the firm has information protected by Rules 1.6 and 1.9(c) that is material to the matter. (c) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless: (1) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule. (d) A disqualification prescribed by this Rule may be waived by the affected client under the conditions stated in Rule 1.7. (e) The disqualification of lawyers associated in a firm with former or current government lawyers is governed by Rule 1.11. RULE 1.11: SPECIAL CONFLICTS OF INTEREST FOR FORMER AND CURRENT GOVERNMENT OFFICERS AND EMPLOYEES (a) Except as law may otherwise expressly permit, a lawyer who has formerly served as a public officer or employee of the government: (1) is subject to Rule 1.9(c); and (2) shall not otherwise represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency gives its informed consent, confirmed in writing, to the representation. (b) When a lawyer is disqualified from representation under paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter unless: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this Rule. (c) Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. As used in this Rule, the term “confidential government information” means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law 13 from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. (d) Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee: (1) is subject to Rules 1.7 and 1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or (ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b). (e) As used in this Rule, the term “matter” includes: (1) any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties; and (2) any other matter covered by the conflict of interest rules of the appropriate government agency. RULE 1.12: FORMER JUDGE, ARBITRATOR, SETTLEMENT MASTER, MEDIATOR, OR OTHER THIRD-PARTY NEUTRAL (a) Except as stated in paragraph (d), a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, settlement master, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing. (b) A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, settlement master, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer. (c) If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless: 14 (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule. (d) An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party. RULE 1.13: ORGANIZATION AS CLIENT (a) A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer shall proceed as is reasonably necessary in the best interest of the organization. In determining how to proceed, the lawyer shall give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization and the apparent motivation of the person involved, the policies of the organization concerning such matters and any other relevant considerations. Any measures taken shall be designed to minimize disruption of the organization and the risk of revealing information relating to the representation to persons outside the organization. Such measures may include among others: (1) asking for reconsideration of the matter; (2) advising that a separate legal opinion on the matter be sought for presentation to appropriate authority in the organization; and (3) referring the matter to higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest authority that can act on behalf of the organization as determined by applicable law. (c) If, despite the lawyer’s efforts in accordance with paragraph (b), the highest authority that can act on behalf of the organization insists upon action, or a refusal to act, that is clearly a violation of law and is likely to result in substantial injury to the organization, the lawyer may resign in accordance with Rule 1.16. (d) In dealing with an organization’s directors, officers, employees, members, shareholders or other constituents, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing. (e) A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization’s consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders. 15 RULE 1.14: CLIENT WITH DIMINISHED CAPACITY (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian. (c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests. RULE 1.15: SAFEKEEPING PROPERTY (a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in accordance with Rule 1.18 and this Rule. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this Rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property. (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. RULE 1.16: DECLINING OR TERMINATING REPRESENTATION (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. 16 (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. A lawyer is entitled to retain and is not obliged to deliver to a client or former client papers or materials personal to the lawyer or created or intended for internal use by the lawyer except as required by the limitations on the retaining lien in Rule 1.8(i). Except for those client papers which a lawyer may properly retain under the preceding sentence, a lawyer shall deliver either the originals or copies of papers or materials requested or required by a client or former client and bear the copying costs involved. RULE 1.17: GOVERNMENT EMPLOYMENT An attorney employed full time by the State of Montana or a political subdivision shall not accept other employment during the course of which it would be possible to use or otherwise rely on information obtained by reason of government employment that is injurious, confidential or privileged and not otherwise discoverable. RULE 1.18: INTEREST ON LAWYER TRUST ACCOUNTS (IOLTA) PROGRAM (a) Purpose. The purpose of the Interest on Lawyer Trust Accounts (IOLTA) program is to provide funds for the Montana Justice Foundation to pay the reasonable costs of administering the program and to make grants to entities with missions within the following general categories: 17 (1) Providing legal services, through both paid staff program(s) and pro bono program(s), to Montana’s low income citizens who would otherwise be unable to obtain legal assistance; (2) promoting a knowledge and awareness of the law; and (3) improving the administration of justice. (b) Required participation. IOLTA program participation is mandatory, except as provided in subsection (d), below. Every non-exempt lawyer admitted to practice in Montana, and/or every law firm composed of any such lawyers, which receives client funds, shall establish and maintain an interest-bearing trust account for pooled client funds, termed an “IOLTA Trust Account.” Each lawyer/firm shall also establish separate interest-bearing trust accounts for individual clients, termed “Client Trust Accounts,” when appropriate pursuant to this Rule. (c) Administration. (1) Deposits of clients’ funds. (A) All client funds paid to a lawyer/firm, including advances for costs and expenses, shall be deposited and maintained in one or more identifiable interest-bearing trust accounts (Trust Accounts) in the State of Montana. No funds belonging to the lawyer/firm shall be deposited into a Trust Account except: (i) funds reasonably sufficient to pay account charges not offset by interest; (ii) an amount to meet a minimum balance requirement for the waiver of service charges; and/or (iii) funds belonging in part to a client and in part presently or potentially to the lawyer/firm, but the portion belonging to the lawyer/firm shall be withdrawn when due unless the right of the lawyer/firm to such funds is disputed by the client, in which event the disputed portion shall remain in the account until the dispute is resolved. (B) The lawyer/firm shall comply with all Rules relating to preserving the identity of clients’ funds and property. (C) Every Trust Account shall be established with a federally-insured and state or federally regulated financial institution authorized by federal or state law to do business in Montana. Funds in each Trust Account shall be subject to immediate withdrawal. (D) The interest rate payable on a Trust Account shall not be less than the rate paid to non-lawyer depositors. Higher rates offered for deposits meeting certain criteria, such as certificates of deposit, may be obtained on Trust Account funds if immediate withdrawal is available. (E) Every Trust Account shall bear the name of the lawyer/firm and be clearly designated as either an IOLTA Trust Account or a Client Trust Account established under this Rule. 18 (2) IOLTA Trust Accounts. Every IOLTA Trust Account shall comply with the following provisions: (A) The lawyer/firm shall maintain all client funds that are either nominal in amount or to be held for a short period of time in an IOLTA Trust Account. (B) No client may elect whether his/her funds should be deposited in an IOLTA Trust Account, receive interest or dividends earned on funds in an IOLTA Trust Account, or compel a lawyer/firm to invest funds that are nominal in amount or to be held for a short period of time in a Client Trust Account. (C) The determination of whether a client’s funds are nominal in amount or to be held for a short period of time rests solely in the sound judgment of each lawyer/firm. No charge of professional misconduct or ethical impropriety shall result from a lawyer’s exercise of good faith judgment in that regard. (D) To determine if a client’s funds should be deposited in an IOLTA Trust Account, a lawyer/firm may be guided by considering: (i) the amount of interest the funds would earn during the period they are expected to be deposited; (ii) the costs of establishing and administering the account, including the lawyer’s/firm’s fees, accounting fees and tax reporting requirements; (iii) the amount of funds involved, the period of time they are expected to be held and the financial institution’s minimum balance requirements and service charges; (iv) the financial institution’s ability to calculate and pay interest to individual clients; and (v) the likelihood of delay in the relevant transaction or proceeding. (E) The lawyer/firm shall require the financial institution in which the IOLTA Trust Account is established to: (i) remit to the Montana Justice Foundation, at least quarterly, all interest or dividends on the average monthly balance in the IOLTA Trust Account, or as otherwise computed according to the institution’s standard accounting practices, less reasonable service fees, if any; (ii) with each remittance, provide the Montana Justice Foundation and the lawyer/firm with a statement showing for which lawyer/firm the remittance is sent, the period covered, the rate of interest applied, the total amount of interest earned, any service fees assessed against the account and the net amount of interest remitted; (iii) charge no fees against an IOLTA Trust Account greater than fees charged to non-lawyer depositors for similar accounts, or which are otherwise unreasonable; and 19 (iv) collect no fees from the principal deposited in the IOLTA Trust Account. (F) Annually the Montana Justice Foundation shall make available a list of all financial institutions offering IOLTA accounts and meeting this Rule’s IOLTA depository qualifying requirements. Lawyers/firms shall be entitled to rely on the most recently published list for purposes of IOLTA Rule compliance. The Montana Justice Foundation shall pay all service charges incurred in operating an IOLTA Trust Account from IOLTA funds, to the extent the charges exceed those incurred in operating non-interest-bearing checking accounts at the same financial institution. (G) Confidentiality. The Montana Justice Foundation shall protect the confidentiality of information regarding Trust Accounts pursuant to this Rule. (3) Non-IOLTA client Trust Accounts. All client funds shall be deposited in an IOLTA Trust Account, unless they are deposited in a separate interest-bearing account for a particular client’s matter with the net interest paid to the client. Such interest must be held in trust as the property of the client as provided in this Rule for the principal funds of the client. (d) A lawyer/firm is exempt from this Rule’s requirements if: (1) the nature of their practice is such that no client funds are ever received requiring a Trust Account; (2) the lawyer practices law in another jurisdiction and not in Montana; (3) the lawyer is a full-time judge, or government, military or inactive lawyer; or (4) the Montana Justice Foundation’s Board of Directors, on its own motion, exempts the lawyer/firm from participation in the program for a period of no more than two years when: (A) service charges on the lawyer’s/firm’s Trust Account equal or exceed any interest generated; or (B) no financial institution in the county where the lawyer/firm does business will accept IOLTA accounts. (e) Lawyer filings and records. (1) Filings. Each lawyer/firm shall file an annual certificate of compliance with or exemption from this Rule with the Montana Justice Foundation. The certification must include the name of the lawyer/firm listed on the account, the account number, and the financial institution name and address. The certification may be made in conjunction with the annual dues billing process. Failure to provide the certification may result in suspension from the practice of law in this state until the lawyer complies with the requirements of this Rule. Such suspension will be effected pursuant to the Rules of the State Bar of Montana governing a lawyer’s failure to pay dues and assessments. (2) Records. Lawyer trust accounts shall be maintained as prescribed by the Montana Supreme Court in the “Trust Account Maintenance and Audit Requirements” (adopted February 27, 1989). 20 (f) Implementation. Implementation will be effected through this Rule and the Rules of the State Bar of Montana, all as amended and approved by the Montana Supreme Court. RULE 1.19: SALE OF LAW PRACTICE A lawyer or a law firm may sell or purchase a law practice, including good will, if the following conditions are satisfied: (a) The seller ceases to engage in the private practice of law in the geographic area in which the practice has been conducted. (b) The entire practice is sold to one or more lawyers or law firms. (c) Actual written notice is given to each of the seller’s clients regarding: (1) the proposed sale; (2) the client’s right to retain other counsel or to take possession of the file; and (3) the fact that the client’s consent to the sale will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice. If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file. (d) The fees charged clients shall not be increased by reason of the sale. RULE 1.20: DUTIES TO PROSPECTIVE CLIENTS (a) A person who consults with or has had consultations with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had consultations with a prospective client shall not use or reveal information learned in the consultation(s), except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) Representation is permissible if both the affected client and the prospective client have given informed consent, confirmed in writing, or: (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (2) written notice is promptly given to the prospective client. 21 COUNSELOR RULE 2.1: ADVISOR In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation. RULE 2.2: EVALUATION FOR USE BY THIRD PERSONS (a) A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client. (b) When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. (c) Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6. RULE 2.3: LAWYERS SERVING AS THIRD-PARTY NEUTRAL (a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, settlement master, mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter. (b) A lawyer serving as a third-party neutral shall inform all parties that the lawyer is not representing them. The lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client. ADVOCATE RULE 3.1: MERITORIOUS CLAIMS AND CONTENTIONS (a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein: (1) without having first determined through diligent investigation that there is a bona fide basis in law and fact for the position to be advocated; (2) for the purpose of harassment, delay, advancement of a nonmeritorious claim or solely to gain leverage; or (3) to extend, modify or reverse existing law unless a bona fide basis in law and fact exists for advocating doing so. (b) A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. 22 RULE 3.2: EXPEDITING LITIGATION A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. RULE 3.3: CANDOR TOWARD THE TRIBUNAL (a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false. (b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. (c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. RULE 3.4: FAIRNESS TO OPPOSING PARTY AND COUNSEL A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence, unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act; (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists; (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party; (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of 23 a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or (f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information. RULE 3.5: IMPARTIALITY AND DECORUM OF THE TRIBUNAL A lawyer shall not: (a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law; (b) communicate ex parte with such a person except as permitted by law; or (c) engage in conduct intended to disrupt a tribunal. RULE 3.6: TRIAL PUBLICITY (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. 24 (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a). RULE 3.7: LAWYER AS WITNESS (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9. RULE 3.8: SPECIAL RESPONSIBILITIES OF A PROSECUTOR The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule consistent with the Confidential Criminal Justice Information Act. 25 RULE 3.9: ADVOCATE IN NONADJUDICATIVE PROCEEDINGS A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5. OTHER THAN CLIENTS RULE 4.1: TRUTHFULNESS IN STATEMENT TO OTHERS In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. RULE 4.2: COMMUNICATION WITH PERSON REPRESENTED BY COUNSEL (a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. RULE 4.3: DEALING WITH UNREPRESENTED PERSON (a) In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client. (b) An otherwise unrepresented person to whom limited representation is being provided or has been provided in accordance with Rule 1.2(c) is considered to be unrepresented for purposes of this Rule unless the opposing party or lawyer has been provided with a written notice of appearance under which, or a written notice of time period during which, he or she is to communicate only with the limited representation lawyer as to the subject matter within the limited scope of the representation. 26 RULE 4.4: RESPECT FOR RIGHTS OF THIRD PERSONS (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person. (b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. LAW FIRMS AND ASSOCIATIONS RULE 5.1: RESPONSIBILITIES OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer within a firm shall be responsible for another lawyer in the firm’s violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RULE 5.2: RESPONSIBILITIES OF A SUBORDINATE LAWYER (a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person. (b) A subordinate lawyer does not violate the Rules of Professional Conduct if the lawyer acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable question of professional duty. RULE 5.3: RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer; 27 (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies or ignores the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. RULE 5.4: PROFESSIONAL INDEPENDENCE OF A LAWYER (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer’s firm, partner or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled or disappeared lawyer may, pursuant to the provisions of Rule 1.19, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit- sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. 28 RULE 5.5: UNAUTHORIZED PRACTICE OF LAW (a) A lawyer shall not: (1) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction; or (2) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. (b) A lawyer admitted in another jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this state to the lawyer’s employer or its organizational affiliates provided that those legal services are not services for which Montana requires pro hac vice admission and, when provided by a foreign lawyer and requiring advice on the law of this or another jurisdiction of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice. For purposes of this subsection, the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to effective regulation and discipline by a duly constituted professional body or a public authority. RULE 5.6: RESTRICTIONS ON RIGHT TO PRACTICE A lawyer shall not participate in offering or making: (a) a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy. PUBLIC SERVICE RULE 6.1: PRO BONO PUBLICO SERVICE Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least fifty (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the fifty (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means; or (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and (b) provide additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational 29 purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. RULE 6.2: ACCEPTING APPOINTMENTS A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as: (a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law; (b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or (c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client- lawyer relationship or the lawyer’s ability to represent the client. RULE 6.3: MEMBERSHIP IN LEGAL SERVICES ORGANIZATION A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization: (a) if participating in the decision would be incompatible with the lawyer’s obligations to a client under Rule 1.7; or (b) where the decision could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer. RULE 6.4: LAW REFORM ACTIVITIES AFFECTING CLIENT INTERESTS A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client. RULE 6.5: NONPROFIT AND COURT-ANNEXED LIMITED LEGAL SERVICES PROGRAMS (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: 30 (1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and (2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule. INFORMATION ABOUT LEGAL SERVICES RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S SERVICES A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false if it contains a material misrepresentation of fact or law. A misleading communication includes, but is not limited to those that: (a) omits a fact as a result of which the statement considered as a whole is materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve; (c) proclaims results obtained on behalf of clients, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts or settlements, without stating that past results afford no guarantee of future results and that every case is different and must be judged on its own merits; (d) states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (e) compares the quality of a lawyer’s or a law firm’s services with other lawyers’ services, unless the comparison can be factually substantiated; (f) advertises for a specific type of case concerning which the lawyer has neither experience nor competence; (g) indicates an area of practice in which the lawyer routinely refers matters to other lawyers, without conspicuous identification of such fact; (h) contains any paid testimonial about, or endorsement of, the lawyer without conspicuous identification of the fact that payments have been made for the testimonial or endorsement; (i) contains any simulated portrayal of a lawyer, client, victim, scene, or event without conspicuous identification of the fact that it is a simulation; (j) provides an office address for an office staffed only part time or by appointment only, without conspicuous identification of such fact; (k) states that legal services are available on a contingent or no-recovery, no-fee basis without stating conspicuously that the client may be responsible for costs or expenses, if that is the case; or (l) advertises for legal services without identifying the jurisdictions in which the lawyer is licensed to practice. 31 RULE 7.2: ADVERTISING (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service; and (3) pay for a law practice in accordance with Rule 1.19. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; (2) the solicitation involves coercion, duress or harassment; (3) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person cannot exercise reasonable judgment in employing a lawyer; or (4) the lawyer reasonably should know that the person is already represented by another lawyer. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a) (2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan. Lawyers who participate in a legal services plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See Rule 8.4(a). 32 RULE 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his/her practice is limited to or concentrated in a particular field of law, if such communication does not imply an unwarranted expertise in the field so as to be false or misleading under Rule 7.1. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication. RULE 7.5: FIRM NAMES AND LETTERHEADS (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1. (b) A law firm with offices in more than one jurisdiction may use the same name or other professional (e.g., website) designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located. (c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm. (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. MAINTAINING THE INTEGRITY OF THE PROFESSION RULE 8.1: BAR ADMISSION AND DISCIPLINARY MATTERS An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for 33 information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. RULE 8.2: JUDICIAL AND LEGAL OFFICIALS (a) A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office. (b) A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the code of judicial conduct. RULE 8.3: REPORTING PROFESSIONAL MISCONDUCT (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable code of judicial conduct that raises a substantial question as to the judge’s fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program. RULE 8.4: MISCONDUCT It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable code of judicial conduct or other law. RULE 8.5: JURISDICTION AND CERTIFICATION A lawyer who is not an active member in good standing of the State Bar of Montana and who seeks to practice in any state or federal court located in this State pro hac vice, by motion, or before being otherwise admitted to the practice of law in this State, shall, prior to engaging in the practice of law in this State, certify in writing and under oath to this Court that, except as to Rules 6.1 through 6.4, he or she will be bound by these Rules of Professional Conduct in his or her practice of law in this State and will be subject to the 34 disciplinary authority of this State. A copy of said certification shall be mailed, contemporaneously, to the business offices of the State Bar of Montana in Helena, Montana. A lawyer not admitted to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that: (1) involves the practice of law in this State by that lawyer; (2) involves that lawyer holding himself or herself out as practicing law in this State; (3) advertises, solicits, or offers legal services in this State; or (4) involves the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.	December 16, 2016
ba7be7d9-5941-4fd2-b994-327b8d8bdfff	Ohio Farmers Insurance Co. v. JEM Contracting, Inc.	2016 MT 343	DA 16-0181	Montana	Montana Supreme Court	DA 16-0181 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 343 OHIO FARMERS INSURANCE COMPANY, an Ohio Corporation, Plaintiff and Appellee, v. JEM CONTRACTING, INC., JOHN SCHWICHTENBERG and EILEEN SCHWICHTENBERG, Defendants and Appellants. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 14-0336 Honorable Michael G. Moses, Presiding Judge COUNSEL OF RECORD: For Appellants: Ryan K. Jackson, Jackson Law, P.C., Bozeman, Montana For Appellee: Harlan B. Krogh, Eric Edward Nord, Crist, Krogh & Nord, PLLC, Billings, Montana Submitted on Briefs: November 2, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 16-0181 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 JEM Contracting, Inc. and John and Eileen Schwichtenberg (collectively, “JEM”) appeal an order of the Thirteenth Judicial District Court, Yellowstone County, granting Ohio Farmers Insurance Company’s (OFIC) motion for partial summary judgment on the pleadings. We address the following issue: Whether the District Court erred in granting partial summary judgment on the pleadings to OFIC. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 JEM is a general contractor specializing in construction. OFIC is an insurance company that issues surety bonds. In 2008 and 2009, OFIC and JEM executed two indemnity agreements so that JEM could obtain bonding from OFIC for construction projects. The indemnity agreements both included the following language: The Indemnitors [JEM] shall exonerate, indemnify, and keep indemnified the Surety [OFIC] from and against any and all liability for losses and/or expenses of whatsoever kind or nature (including, but not limited to, interest, court costs and counsel fees) and from and against any and all such losses and/or expenses which the Surety may sustain and incur: (1) By reason of having executed or procured the execution of the Bonds, (2) By reason of the failure of the Indemnitors to perform or comply with the covenants and conditions of this Agreement or (3) In enforcing any of the covenants and conditions of this Agreement. ¶4 On May 6, 2010, JEM contracted with Gallatin and Madison counties on a construction project on Ousel Falls Road and South Fork Road in Big Sky, Montana. On behalf of JEM, OFIC executed and delivered a $2,113,797.25 bond for this contract. On July 1, 2010, JEM contracted with the State of Montana on a sanding project in Bozeman, 3 Montana. On behalf of JEM, OFIC executed and delivered a $752,212.00 bond for this contract. JEM hired a subcontractor, Hollow Contracting, Inc. (Hollow), to furnish labor, materials, and equipment for both projects. After a dispute arose between JEM and Hollow regarding payment for work Hollow performed, Hollow filed a complaint against JEM and OFIC in the Eighteenth Judicial District Court, Gallatin County (Hollow Litigation). Hollow alleged that OFIC was obligated to pay Hollow for labor, materials, and equipment Hollow furnished for the projects because JEM failed to make the payment. This lawsuit was resolved, and on October 16, 2013, the Gallatin County District Court issued an order dismissing the Hollow Litigation. ¶5 On February 28, 2014, OFIC filed a complaint in the Yellowstone County District Court in the action that is the basis for this appeal. OFIC sought indemnification from JEM for attorney fees and costs OFIC incurred in the Hollow Litigation. In its answer to OFIC’s complaint, JEM alleged that the fees and costs OFIC incurred were wholly related to OFIC defending itself from its own negligence and, therefore, not covered under the indemnity agreements. OFIC moved for partial summary judgment on the pleadings, requesting a judgment requiring JEM to indemnify OFIC. On July 2, 2015, the District Court issued an order granting OFIC’s motion and holding that, pursuant to express language in the indemnity agreements, JEM was required to indemnify OFIC for “appropriate expenses.” JEM appeals that order. STANDARDS OF REVIEW ¶6 A district court’s decision on a motion for judgment on the pleadings is a question of law, which we review for correctness. Firelight Meadows, LLC v. 3 Rivers Tel. Coop., 4 Inc., 2008 MT 202, ¶ 12, 344 Mont. 117, 186 P.3d 869. Likewise, a district court’s construction and interpretation of a contract is a question of law that we review for correctness. Johnston v. Centennial Log Homes & Furnishings, Inc., 2013 MT 179, ¶ 25, 370 Mont. 529, 305 P.3d 781. DISCUSSION ¶7 Whether the District Court erred in granting partial summary judgment on the pleadings to OFIC. ¶8 Pursuant to M. R. Civ. P. 12(c), a party may move for judgment on the pleadings “[a]fter the pleadings are closed–but early enough not to delay trial.” In order to succeed, “[t]he movant must clearly establish that no material issue of fact remains to be resolved and that he is entitled to judgment as a matter of law.” Firelight Meadows, LLC, ¶ 9 (quoting Clayton v. Atl. Richfield Co., 221 Mont. 166, 169-70, 717 P.2d 558, 560 (1986)) (internal quotation marks and citations omitted). Additionally, “when considering a Rule 12(c) motion, the court must assume that all of the well-pleaded factual allegations in the nonmovant’s pleadings are true and that all contravening assertions in the movant’s pleadings are false.” Firelight Meadows, LLC, ¶ 11 (citations omitted). The court must deny the motion if the nonmovant’s answer raises a defense that, if proven, would defeat the movant’s claim. Clayton, 221 Mont. at 170, 717 P.2d at 560. ¶9 In interpreting an indemnity agreement, as with any other contract, a court’s job “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-4-101, MCA. Additionally, contracts “must receive such an interpretation as will make [them] 5 lawful, operative, definite, reasonable, and capable of being carried into effect if it can be done without violating the intention of the parties.” Section 28-3-201, MCA. The District Court specifically limited its decision on partial summary judgment to the issue of whether the indemnity agreements allow OFIC to seek indemnity for “appropriate expenses,” stating: “The issue of damages and the amount of damages is not before this Court. That will be left to the trier of fact.” Regarding “the specific issue of liability for express indemnity,” the District Court concluded: “[T]he plain language of the indemnity documents establishes liability.” JEM contends this conclusion was incorrect. ¶10 JEM first contends that the indemnity agreements violate §§ 28-2-701 and -702, MCA, because they mandate indemnity for OFIC’s own fraud, willful injury to another, or violation of the law. Pursuant to § 28-2-701, MCA, a contract provision is unlawful if it is: “(1) contrary to an express provision of law; (2) contrary to the policy of express law, though not expressly prohibited; or (3) otherwise contrary to good morals.” Section 28-2-702, MCA, provides, in pertinent part: “[A]ll contracts that have for their object, directly or indirectly, to exempt anyone from responsibility for the person’s own fraud, for willful injury to the person or property of another, or for violation of law, whether willful or negligent, are against the policy of the law.” The indemnity agreements at issue do not provide OFIC with carte blanche indemnification. They require JEM to indemnify OFIC from liability for losses or expenses incurred by OFIC in three specifically enumerated categories: “(1) By reason of having executed or procured the execution of the Bonds, (2) By reason of the failure of the Indemnitors to perform or comply with the covenants and conditions of this Agreement or (3) In enforcing any of 6 the covenants and conditions of this Agreement.” OFIC’s alleged fraudulent acts, willful injury to another, or violation of the law do not fall within any of these categories. Thus, JEM is not required to indemnify OFIC for any illegal actions, and the District Court correctly found that the indemnity agreements do not violate §§ 28-2-701 or -702, MCA. ¶11 JEM next contends that the indemnity agreements are ambiguous regarding indemnification for negligence, and thus OFIC cannot be indemnified for its own negligent actions. However, the District Court did not address whether OFIC may be indemnified for its own negligence. Therefore, this issue is not before us. See Christian v. Atl. Richfield Co., 2015 MT 255, ¶ 45, 380 Mont. 495, 358 P.3d 131 (declining to address issues not yet decided by the district court); Saucier v. McDonald’s Rests. of Mont., Inc., 2008 MT 63, ¶ 60, 342 Mont. 29, 179 P.3d 481 (declining to address an issue “because the District Court has not yet reached th[e] issue and therefore has not taken any action which this Court could affirm or reverse”). Likewise, the District Court was not, as JEM alleges, “required to accept that OFIC was seeking indemnification for its own negligence” based on JEM’s affirmative defenses and counterclaim. The District Court specifically did not decide the amount of damages to be awarded to OFIC. Rather, it limited its holding to whether the indemnity agreements provide for indemnification to OFIC, leaving the issue of damages to the trier of fact. For the same reason, we will not fault the District Court for not deciding whether the attorney fees and costs OFIC incurred were related to defending itself from its own fraud, willful injury to another, or violation of the law. The trier of fact will be in a position to assess which, if any, of OFIC’s actions fell into categories that are indemnifiable under its contract with JEM. 7 ¶12 Finally, JEM alleges that the District Court erred in holding that the indemnity agreements allow OFIC to seek indemnity for “appropriate expenses” because that term does not exist in the agreements. The District Court’s conclusion that OFIC may seek indemnity for “appropriate expenses” merely is a declaration that OFIC may seek indemnity for those expenses that are covered by the categories for which the contract allows OFIC to seek indemnification from JEM. JEM has not raised a defense that, if proven, would defeat OFIC’s claim that it may seek indemnification under the indemnity agreements for lawful and recoverable expenses. See Clayton, 221 Mont. at 170, 717 P.2d at 560. Therefore, the District Court correctly granted partial summary judgment on the pleadings to OFIC on the limited issue of whether OFIC may seek indemnification from JEM pursuant to the indemnification agreements. CONCLUSION ¶13 We affirm the District Court’s decision and order granting partial summary judgment on the pleadings to OFIC. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ LAURIE McKINNON	December 27, 2016
c303cf21-dfe2-40e1-8fd2-c014250f8754	Bureau of Land Management - Barthelmess	2016 MT 348	DA 15-0533	Montana	Montana Supreme Court	DA 15-0533 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 348 CLAIMANT: United States of America, (Bureau of Land Management) OBJECTORS: Barthelmess Ranch Corporation; Double O Ranch, Inc.; Lela M. French; William R. French; Conni D. French; Craig R. French; M Cross Cattle Company. APPEAL FROM: Montana Water Court, Cause No. 40M-300 Honorable Douglas Ritter, Water Judge COUNSEL OF RECORD: For Appellants: John E. Bloomquist, Rachel K. Meredith (argued), Bloomquist Law Firm, P.C., Helena, Montana For Appellee: John C. Cruden, Assistant Attorney General, Elizabeth Ann Peterson, John L. Smeltzer (argued), James J. Dubois, Anna K. Stimmel, Appellate Attorneys, United States Department of Justice, Washington, DC Argued: September 23, 2016 Submitted: September 27, 2016 Decided: December 28, 2016 Filed: __________________________________________ Clerk 12/28/2016 Case Number: DA 15-0533 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 This is an appeal by Barthelmess Ranch, Double O Ranch, William French, Conni French, Craig French and M Cross Cattle (the Objectors) from the Water Court’s August 11, 2015 Order Granting Partial Summary Judgment and Order Remanding to the Master. We affirm. ¶2 We restate the issues on appeal as follows: Issue One: Whether the Water Court erred in concluding that the United States Bureau of Land Management (BLM) holds stockwatering rights under Montana law in reservoirs constructed on federal land for the use of permittees. Issue Two: Whether the Water Court erred in concluding that the United States owns reserved water rights for stockwatering by permittees in a pothole lake on federal grazing land under the 1926 Executive Order providing for Public Water Reserve 107. FACTUAL AND PROCEDURAL BACKGROUND ¶3 In Montana’s ongoing water rights claims adjudication proceedings, the BLM filed six water right claims related to five reservoirs and one natural pothole. The five reservoir claims are based in Montana law while the Pothole Lake claim is based upon a federal reservation of lands. The water sources are located wholly or partially on federal land, and the BLM claims the right to use each for stockwatering by its grazing permittees and for wildlife. In June 2014 the BLM moved for summary judgment on the objections raised to each claim. The Water Court consolidated those claims, objections and motions for summary judgment into the present single case. 3 ¶4 In November 2014 the Water Master recommended summary judgment in favor of the BLM on each of these claims, finding that the claims were valid and properly owned by the BLM. The Objectors objected to the Water Master’s recommendation, but agreed in briefing that the BLM had the right to obtain water rights in its name under Montana law for use on federal lands.1 The Objectors stated the issue as whether the BLM “under applicable state and federal laws, actually made appropriations for beneficial use.” The Objectors contend that the BLM did not perfect any water rights and sought an order from the Water Court transferring all of the claimed BLM water rights to the current grazing permittee on the federal lands, and an order terminating all the wildlife claims. The Water Court upheld the Water Master’s recommendation in most respects, and the Objectors appeal. ¶5 The following is a summary of the BLM claims involved in the present case. Windy Day Reservoir (Claim 40M 74594-00) was built by the BLM in August 1955 with the participation and cost-sharing of Marie Karstens-Redding, the BLM grazing permittee at the time. The French objectors in the present appeal own property surrounding the Windy Day Reservoir. They claim that as early as 1911 individual “free grazers” who were ancestors or predecessors to their current land interests (hereafter “ancestral free grazers”) “owned livestock” on the land now containing this reservoir. ¶6 North Flat Creek Reservoir (Claim 40M 74590-00) was built by the BLM in 1937. It is partially located on lands patented by Elsie Kemp/Tole in 1923 and conveyed to the 1 Federal law recognizes the jurisdiction of state courts to resolve federal water rights claims. 43 U.S.C. § 666; Confederated Salish & Kootenai Tribes v. Clinch, 2007 MT 63, ¶¶ 12-13, 336 Mont. 302, 158 P.3d 377. 4 Frenches in 1995. Frenches filed a statement of claim to a use right for stockwater out of the reservoir. They claim that as early as 1911 ancestral free grazers placed livestock on the land now containing this reservoir. ¶7 Tallow Creek Reservoir (Claim 40M 74670-00) was built by the BLM in June 1936. The Objectors contend that ancestral free grazers in the area of this reservoir owned livestock there as early as 1915, and that their stock grazed in the area and drank water. ¶8 Sharon Reservoir (Claim 40M 74883-00) was built by the BLM in 1961 with the assistance of the Oxarart Brothers, grazing permittees at the time. M Cross is a grazing permit successor to Oxararts and has repair and maintenance responsibility for the reservoir. M Cross claims that its ancestral free grazers “owned livestock” on property around Sharon Reservoir “as early as 1917” and that they grazed and watered the stock. ¶9 The Water Court found as undisputed facts that the preceding four reservoirs were developed by the BLM and that the BLM’s claimed priority date for each stockwater right is the date the reservoir was completed. The BLM does not own livestock, but provides the water for use by grazing permittees and others. The Water Court found that the reservoirs have been “consistently used for stockwatering since they were completed.” ¶10 The Water Court found that it was undisputed that none of the Objectors or their predecessors filed claims for stockwatering from any of the sources of water that are 5 impounded in the reservoirs. The exception is the claim filed by Lela and William French, claim 40M 169526-00, for stockwater from the North Flat Creek Reservoir. ¶11 The Water Court noted that the common law elements of a valid (use right) appropriation of water are intent to appropriate, notice of the appropriation, diversion and beneficial use. In the Matter of the Adjudication of Existing Rights (Bean Lake III), 2002 MT 216, ¶ 10, 311 Mont. 327, 55 P.3d 396. Prior to 1973 an appropriator in Montana could secure a water right simply by putting the water to a beneficial use. Mont. Trout Unlimited v. Mont. DNRC, 2006 MT 72, ¶ 5, 331 Mont. 483, 133 P.3d 224. The Water Court concluded that impoundment of water in a reservoir is a sufficient diversion of water to support a claim to a use right of water under Bean Lake III, and noted that the Objectors contested only whether the BLM had applied the water to a beneficial use. The Objectors contended that since the BLM did not own any livestock of its own, it did not use water from the reservoirs and therefore could not have perfected the stockwatering claims under Montana law. ¶12 The Water Court resolved this issue by applying this Court’s venerable opinion in Bailey v. Tintinger, 45 Mont. 154, 122 P. 575 (1912), relied upon by both the BLM and the Objectors. Bailey established that a person, association or corporation could appropriate water under Montana law “to sell, rent, or otherwise dispose to others.” Under the principles of the Bailey case, an appropriation of water for the use of others was complete upon completion of the diversion system (in this case the reservoirs) and making the water available for use by others. Bailey, 45 Mont. at 166-67, 122 P. at 579. 6 The Water Court concluded that these principles applied to appropriations by the United States and that ownership of stock was not required to complete the appropriation. Finally, the Water Court determined that participation by non-governmental parties in the construction or maintenance of some of the reservoirs did not affect the validity of the BLM claims because Montana law recognizes that multiple claims may exist in the same source of water. St. Onge v. Blakley, 76 Mont. 1, 23, 245 P. 532, 536 (1926); Mont. Trout Unlimited, ¶ 7. ¶13 The BLM acquired the Funnells Reservoir (Claim 40M 74655-00) in 1951 when it acquired some of the surrounding property. At that time the dam was in place providing 1.2 acre feet of water storage. The BLM claims a priority date in this reservoir of August 1945. A portion of the reservoir is on Barthelmess land, and Barthelmess filed a stockwater claim in the reservoir. Barthelmess also contends that its ancestral free grazers had stock in the area around Funnells as early as 1915. The Water Court found as an undisputed fact that the reservoir has been used for stockwater consistently since the BLM acquired its interest in the property. ¶14 The Water Court concluded that under Montana law the BLM acquired any appurtenant water rights when it acquired the property. Section 85-2-403(1), MCA; Maclay v. Missoula Irrig. Dist., 90 Mont. 344, 353, 3 P.2d 286, 290 (1931). In addition, the Water Court rejected the Objectors’ argument that the BLM could not show when the reservoir was constructed or when it was actually used for stockwatering, and that the BLM water claim therefore could only date from when it acquired the property in 1951. 7 The Water Court noted that this argument was inconsistent with the Objectors’ own contention that they derived rights from their ancestral free grazers who had grazed animals in the same area since 1915. In addition, the Water Court held that under Montana law a statement of water right claim is prima facie evidence of its content, § 85-2-227, MCA, and Teton Co-Op Canal Co. v. Teton Coop Reservoir Co., 2015 MT 344, ¶ 20, 382 Mont. 1, 365 P.3d 442, and that the Objectors had not carried their burden to prove that essential elements of the BLM water right claim were incorrect. As was the case with the prior BLM reservoirs, the Water Court noted that under Montana law two parties can claim ownership in water rights from the same source. ¶15 Pothole Lake (Claim 40M 74579-00) is a natural feature2 located on BLM land that has been available for use by others. The Objectors, for example, claim that Frenches or their ancestral free grazers grazed stock in the area of the Pothole as early as 1917. The BLM claims a reserved water right in the Pothole with a priority date of April 1926. The claim of a reserved right is based upon the Stock Raising Homestead Act (SRHA) enacted by Congress in 1916 and the Public Water Reserve (PWR) No. 107 signed by the President in April 1926. The SRHA allowed the Secretary of the Interior to reserve lands that “contain waterholes or other bodies of water needed or used by the public for watering purposes.” 43 U.S.C. § 300 (1912). The subsequent PWR 107 reserved all springs and water holes on vacant, unappropriated, and unreserved public 2 A “pothole” in this context usually describes a natural depression in the landscape that contains water. 8 land throughout the country. The Water Court found that the Pothole Lake was part of the reservation of land and water provided for by PWR 107. ¶16 The Objectors contended as to all of the BLM claims, that their ancestral free grazers grazed the land and watered their stock in the available water sources long prior to construction of any of the BLM reservoirs. The Objectors contend that they thereby obtained the sole and paramount right to all of the waters at issue in this case and that any BLM claims to water should therefore be transferred to them. ¶17 The Water Court concluded that any stockwatering by the Objectors’ ancestral free grazers were direct uses from the water sources, unaided by reservoir impoundments, and are therefore separate from the subsequent BLM reservoir claims. The governing principle of water law is that the existence of a prior right or claim in a particular water source does not preclude appropriation of subsequent rights from the same source. St. Onge, 76 Mont. at 23, 245 P. at 536; Mont. Trout Unlimited, ¶¶ 7-8. This principle is at the core of appropriation water rights under Montana law, allowing multiple appropriators to enjoy rights from the same source of water. The Objectors’ claim that prior use by their ancestral free grazers precludes later claims by the BLM or any other person or entity is contrary to the precepts of prior appropriation. ¶18 The Objectors also argued that prior Water Court decisions support their argument that they should be given title to the right to use the water stored in the BLM reservoirs.3 The Water Court disagreed with the Objectors’ construction of these decisions. 3 Edwards v. BLM, Water Court Case No. 40E-A (Water Court Opinion June 29, 2005); Hamilton Ranches v. BLM, Water Court Case No. 41G-190 (Water Court Opinion July 19, 2005). 9 Construing its own decisions, the Water Court found that “neither case addressed any restriction on BLM ownership of stock claims on federal land or found that stock rights on federal land must be owned by permittees.” In addition, one of the cases “recognizes that stock rights on federal land are routinely owned by the BLM.” ¶19 In addition to BLM stockwater claims, the BLM also claimed the right to provide water for wildlife at each of the reservoirs and the Pothole Lake. The Objectors argued that any wildlife use was only incidental to stockwatering, and that the BLM never intended to appropriate water for wildlife, never gave notice of any intent to do so, and never took steps to put water to use for wildlife, thereby precluding any claim under Montana law. The Water Court disagreed, finding that claims for fish, wildlife and recreational use are recognized by Montana law, and that no diversion is required when a diversion is not necessary for the wildlife use. Bean Lake III, ¶ 40. ¶20 The Water Court determined that the nature and extent of a water claim for wildlife use “depends on the specific facts surrounding the claimed appropriation” and that wildlife claims must be supported by evidence of intent to appropriate, notice of intent and application of the water to a beneficial use. The Water Court relied upon statements by Congress referencing management of BLM lands for stock and for wildlife as showing intent to do so. In addition, publication of these Congressional statements and enactments gave notice that the BLM intended to appropriate for wildlife. The Water Court found that developing the reservoirs was sufficient appropriation to consummate a right for wildlife uses. Because wildlife uses require less water than consumptive uses 10 such as stockwatering, adding wildlife uses to each of the reservoirs did not expand the amount of water claimed. Therefore, as to the four reservoirs constructed by the BLM, there was sufficient proof of a water right for wildlife. ¶21 As to the Funnells Reservoir, the BLM acquired it as a constructed facility in 1951. The Water Court found that the same Congressional enactments that supported a wildlife claim for the first four reservoirs, constructed by BLM, also supplied the required intent for Funnells. While Funnells was originally constructed for stockwatering, the Water Court found that when the BLM acquired it in 1951, wildlife had already benefitted from its water, and after that time it was also managed for wildlife use. This represented a change in the stockwater right the BLM acquired with the reservoir. The law in effect at the time of this change, § 89-803, RCM (1947, repealed in 1973), required no prior approval for a change in use, and the wildlife claim did not represent a new appropriation because it did not expand the amount of water used. Therefore under that statute the Water Court determined that the priority date for the wildlife use related back to the priority of the original appropriation in 1945, before the BLM acquired the facility. ¶22 As to the Pothole Lake, the Water Court determined that there are factual issues that remain to be decided concerning the wildlife claim for that water source. The Water Court remanded the wildlife portion of the Pothole Lake claim to the Water Master for further proceedings. 11 ¶23 The Water Court last determined that the volume of water for each of the BLM claims remained unresolved. While the BLM argued that the Objectors had not refuted its volume claims, the Water Court accepted the Objectors’ argument that they had not been given a full and fair opportunity to present evidence as to the volume of water that should be decreed to each of the BLM storage claims. Therefore the Water Court remanded all of the BLM claims to the Water Master for further proceedings on the volume of each of the BLM storage claims. ¶24 The Objectors appeal. STANDARD OF REVIEW ¶25 This Court recently set out the standards of review in an appeal from the Water Court’s review of a Water Master’s report. Heavirland v. State, 2013 MT 313, ¶¶ 13-16, 372 Mont. 300, 311 P.3d 813; Skelton Ranch v. Pondera County Canal & Res. Co., 2014 MT 167, ¶¶ 25-27, 375 Mont. 327, 328 P.3d 644. In summary, the Water Court reviews the Water Master’s findings of fact under the “clearly erroneous” standard, and reviews the Water Master’s conclusions of law to determine whether they are correct. This Court reviews the Water Court’s decision under the same standards as applied to the review of District Court decisions. 12 DISCUSSION ¶26 Issue One: Whether the Water Court erred in concluding that the United States Bureau of Land Management (BLM) holds stockwatering rights under Montana law in reservoirs constructed on federal land, for the use of grazing permittees. ¶27 The Objectors argue that the BLM did not properly perfect state law water rights in the reservoirs and so may not maintain claims in the adjudication process.4 As noted above, perfecting a water appropriation claim in Montana prior to 1973 required an intent to appropriate, notice of the appropriation, diversion and beneficial use, Bean Lake III, ¶ 10. While the Objectors acknowledge that Montana law allows an appropriator to appropriate water for sale or distribution to others, they contend that the BLM does not qualify to do so. The Objectors also contend that the BLM never applied water to a beneficial use because it did not own any livestock and therefore could not have perfected the stockwatering claims. ¶28 The parties argue that Bailey either supports or defeats the BLM water claims. A primary issue in Bailey was whether a person could appropriate water under Montana law “to sell, rent, or otherwise dispose to others” without otherwise using the water himself. This Court in Bailey held that Montana law recognized that an appropriation of water to be used by others was complete upon construction of the diversion system (such as a reservoir) and making the water available to others. Bailey, 45 Mont. at 166-67, 122 P. at 579. This Court recently explained the holding in Bailey: The appropriation of water for sale has long been accepted as a beneficial use. Our first Constitution in 1889 explicitly recognized the right to sell 4 This argument excludes the claim for the Pothole Lake, which is not a claim based in state law. 13 and rent water to others as a beneficial use. Mont. Const. art. III, § 15. The verbiage used in the 1889 Constitution referencing the sale of water was imported almost verbatim nearly one hundred years later into the 1972 Constitution. Compare Mont. Const. art. IX, § 3 with Mont. Const. art. III, § 15 (1889). This constitutional provision, along with its interpretations in our case law, clearly shows a steadfast commitment to recognizing the ability to appropriate water for its ultimate use by a third party. Curry v. Pondera County Canal & Reservoir Co., 2016 MT 77, ¶ 25, 383 Mont. 93, 370 P.3d 440 (internal citations omitted). The Water Court in the present case concluded that these principles applied to appropriations by the United States, and that Montana law did not require that the BLM own and graze livestock to perfect a water right. ¶29 The Objectors next argue that Bailey established a rule that only a “public service corporation” can appropriate water for use by third parties. The Objectors argue that since the BLM is not a “public service corporation” it cannot perfect its claims to appropriate water for the use of others under Montana law. An examination of the Bailey Opinion shows that the Objectors misconstrue its holding. ¶30 The dispute in Bailey involved water right claims in Big Timber Creek. In 1892 three individuals commenced work on an appropriation of water, some for their own use and the rest to “sell, rent, and otherwise distribute” to others. One of those individuals, named Hatch, succeeded to the interests of his former partners in the appropriation; an individual named Wormser succeeded to Hatch’s interests; and a subsequently-organized canal company succeeded to the interests of Wormser. The canal company continued to construct miles of canals and ditches to distribute the water to customers, and its interests were acquired by yet another company. By 1910 the original appropriation by Hatch and 14 his partners was being used to distribute water to others who were irrigating about 1000 acres. A controversy arose with other appropriators over whether successive enlargements to the capacity of the system were new appropriations or whether they related back to the original Hatch appropriation in 1892. ¶31 The Bailey Opinion traced the history of Montana law relating to the appropriation of water, Bailey, 45 Mont. at 166-75, 122 P. at 581-82, concluding that since 1877 Montana law “specifically recognized the right of an individual to appropriate water to rent or sell to another.” Bailey, 45 Mont. at 174, 122 P. at 582 (emphasis added). The Bailey Court noted that since 1907 it has “been held that the appropriator need not be either an owner or in possession of land in order to make a valid appropriation for irrigation purposes.” Bailey, 45 Mont. at 175, 122 P. at 582. Further: In cases of appropriation for the purpose of supplying water to others, we do not understand how it can be said that the use of the water is an essential element of its appropriation. If the intended appropriator constructs the works and appliances necessary for the diversion of the water and the carrying of it to points where its use is desirable and profitable, and has actually carried it there, or is ready and willing to do so and offers it to all persons who are willing to pay for its use, we apprehend that his appropriation is complete. Bailey, 45 Mont. at 177, 122 P. at 583. The Bailey Court warned that unless such appropriations were allowed it would “retard the reclamation of arid lands” in areas where the “magnitude of the undertaking is too great for individual enterprise.” The Court warned that failure to adopt such a policy could also defeat the land reclamation goals of the United States in making appropriations “as a corporation or individual” for use by others. Bailey, 45 Mont. at 177, 122 P. at 583. 15 ¶32 The Bailey Court then declared it the public policy of the State of Montana to encourage “public service corporations” to appropriate water for sale, rental or distribution to others. Bailey, 45 Mont. at 177, 122 P. at 583. The Bailey Court did not define “public service corporations.” At the time the Bailey case was litigated the entity that owned the original Hatch appropriation from Big Timber Creek was called the “Glass-Lindsay Land Company.” The Bailey Opinion stated that Glass-Lindsay was “organized under the laws of this state” with the “authority to purchase or construct an irrigation system and to sell, rent or otherwise dispose of water.” Bailey, 45 Mont. at 161, 122 P. at 577. The Objectors assume from this that Glass-Lindsay was organized as a corporation under Montana law and that organization as a corporation under Montana law was therefore a vital prerequisite to appropriating water for the eventual use by others. ¶33 This assumption is not warranted by the Bailey Opinion, which clearly did not limit appropriations for sale or use by others to “public service corporations.” Critically, the Objectors’ construction of Bailey overlooks the fundamental fact of the case that the appropriation at issue there was commenced by three individuals; was then owned by one of those individuals; and was then owned by another individual before the canal companies got involved. The actual water right at issue in Bailey was therefore initiated by individuals, and not by a “public service corporation.” It is also significant that the priority date for the appropriation in Bailey related back to the date that the three individuals put the water to use, and was not the later date when the canal companies 16 appeared. Regardless of the fact that the Bailey Opinion referred to the entity holding the appropriation at the time of the opinion as a “public service corporation,” that entity was holding an appropriation initially established by individuals. And, significantly, the Bailey Opinion, as noted, expressly recognized the right of the United States to proceed under Montana law to appropriate water to sell, rent or otherwise dispose of to others. ¶34 Under the law established in Bailey, there is no “public service corporation rule,” but only the recognition of a public policy of the state of Montana to allow and even encourage individuals and entities who are able to do so to appropriate water and make it available for use by others. Curry, ¶ 25. We also reject as being without support, the Objectors’ argument that the BLM cannot appropriate water under Montana law because it does not separately charge grazers for the use of the reservoir water. Charging money for the water is not a requirement of perfecting a water right for “sale, rental or disposal to others.” As long as the water is made available for sale, rental, or distribution or disposal to others, it is a valid appropriation under Bailey. As we recently held, Montana law “clearly shows a steadfast commitment to recognizing the ability to appropriate water for its ultimate use by a third party.” Curry, ¶ 25. ¶35 The Dissent argues that the BLM has never put water to a beneficial use. To the contrary, recognition that storage of water as BLM has done is a beneficial use is expressly provided by the Montana Constitution: “The use of all water that is now or may hereafter be appropriated for sale, rent, distribution, or other beneficial use . . . and the sites for reservoirs necessary for collecting and storing water shall be held to be a 17 public use.” Mont. Const. art. IX, § 3(2); Curry, ¶¶ 31-33. We agree with the Water Court that the BLM was entitled to proceed under Montana law to appropriate water in its reservoirs for use by grazing permittees and others. ¶36 The Objectors also argue that the BLM claims are invalid because the BLM did not appropriate any water, but “simply facilitated use of water already appropriated” by their ancestral free grazers in the early 20th century. This argument cannot be supported under Montana water law. First, as previously noted, it has long been the common law and then statutory law in Montana that multiple appropriators can claim water rights from the same source, and that the first in time has the best right. It is well known that there have been so many different appropriators on some water sources that the waters have become “over appropriated” in that the amount of water claimed by all the appropriators far exceeds the water actually available. Mont. Trout Unlimited, ¶¶ 7-8. While over-appropriation creates its own issues, it does not mean that the person or entity that made the first use on a water source acquired the right to exclude any other person or entity from claiming water from the same source. Far from it, as we have said, a fundamental precept of Montana water law is that multiple claims can exist on a single source of water. Adopting the Objectors’ position would cause chaos in Montana prior appropriation law. Senior appropriators could claim not just that they had the earliest right to use water in a stream, but also that no one else could claim rights from that stream because the senior appropriators were there first—an argument contrary to the 18 fundamental precepts of prior appropriation law. Federal Land Bank v. Morris, 112 Mont. 445, 456, 116 P.2d 1007, 1012 (1941). ¶37 The BLM is not claiming water rights based upon any ancestral free-grazer stockwater use in the early years of the twentieth century such as that cited by the Objectors. The BLM claims are clearly based upon subsequent appropriations via reservoir construction. The earliest BLM claim in this case is 1926 (Pothole Lake) and the latest is 1961 (Sharon Reservoir). If the Objectors hold any viable stockwatering claims based upon water use in the first decades of the twentieth century, those rights are separate from and clearly would be senior to, any reservoir rights claimed by the BLM.5 As the Water Court concluded, those early water uses were direct from the source, unaided by any reservoir storage. Any right arising from the ancestral free grazing before World War I is separate from the later BLM reservoirs, and the existence of prior rights does not preclude subsequent appropriation of water from the same sources. Each right has its own priority in time. 5 The Objectors assert, and the Water Court seems to have agreed, that their ancestral free grazers utilized water on public lands to water their stock a hundred or more years ago. However, at least in the briefing in this appeal, the Objectors do not cite any specific water right claim based upon this historic stockwatering. The Water Court noted that at least as to claims to water in the BLM reservoirs, Montana law required that the Objectors file their claims by July 1, 1996, at the latest, and that if they failed to do so, they lost their right to make such claims. Section 85-2-226, MCA; Matter of the Adjudication of Water Rights in the Yellowstone River, 253 Mont. 167, 175, 832 P.2d 1210, 1214 (1992). The Water Court specifically held, however, that under § 85-2-222(1), MCA, failing to file on in-stream stockwater uses is optional and that the Objectors could still voluntarily file claims on those rights if they choose to do so. The Objectors do not expressly claim that the BLM claims are objectionable because the reservoirs interfere with the Objectors’ prior rights to water. 19 ¶38 Second, the Objectors contend that the BLM’s construction of the reservoirs “did not constitute a new appropriation” but “simply modified” the prior stockwatering practices by their ancestral free grazers. It is certainly true, as the Objectors concede, that a direct-flow water user can add a reservoir to stabilize the available water so that it can be used throughout the year, without creating a new appropriation. Teton Cooperative Res. Co. v. Farmers Cooperative Canal Co., 2015 MT 208, 380 Mont. 146, 354 P.3d 579. This is not what happened in the case of the BLM reservoirs. The BLM does not claim any earlier direct-flow water rights. It claims only new rights to stored water, with appropriation dates in the mid-twentieth century. Contrary to the Objectors’ argument, this situation is materially different from the one considered in Teton. Additionally, In Granite County v. McDonald, 2016 MT 281, 385 Mont. 262, ___ P.3d ___, decided November 3, 2016, we upheld the water right of a subsequent reservoir owner to impound water on a stream as long as it did not interfere with the senior rights of downstream direct-flow users. In fact, that relationship had been recognized by a water right decree entered in 1906. This, and not Teton, represents the present situation with regard to the BLM reservoirs and the rights, if any, deriving from ancestral free grazers. The BLM rights are separate rights with their own priority dates. ¶39 We emphasize that the foregoing analysis of the Objectors’ claims is based upon fundamental and long-established principles of Montana water law. The first in time is the first in right, and multiple persons may therefore perfect claims to water from the same source as is the case across the breadth of our State. Ignoring this fundamental 20 principle to uphold the Objectors’ claims in this case would throw Montana water rights into chaos. Water use by the Objectors’ ancestral free grazers does not, under established Montana law, preclude the BLM or any other person or entity from making a claim of water right in the same source. Further, it could not be more clear that for over one hundred years Montana has recognized the right of individuals and entities to appropriate water for the sale, rental, or distribution to others. There is no “public service corporation” limitation upon this important principle of law. It has long been the public policy of Montana to recognize and encourage the benefits to agriculture and stock raising that flow from allowing appropriations that make water available for the use of others. We are unwilling to depart from these bedrock principles of Montana water law in this case. Finally, the principle of loss by “nonuser” (Dissent ¶ 66, quoting Bailey), is not an issue in this case and the Water Court has yet to adjudicate the quantity of the BLM rights. ¶40 Because we agree with the Water Court that the BLM has valid appropriations under Montana law, and that there is no basis in fact or in law to assign ownership of the BLM claims to the Objectors, we decline to consider the Objectors’ arguments concerning the authority of the Water Court to do so. ¶41 Issue Two: Whether the Water Court erred in granting partial summary judgment on the Pothole Lake claim when there were genuine issues of material fact. ¶42 The Water Court noted that the Objectors did not challenge the fact that PWR 107 can serve as the basis for a reserved stock water right on federal land. In fact, it is well established that the SRHA and PWR 107 provide a valid basis upon which the federal 21 government can support claims to reserved water rights. Other state courts have recognized the validity of these claims in their water adjudication processes. United States v. Denver, 656 P.2d 1, 32 (Colo. 1982) (Court agreed that the federal government has “reserved rights to provide a watering supply for animal and human consumption . . . so that no person could monopolize or control vast areas of western land by homesteading the only available water supply.”); United States v. Idaho, 959 P.2d 449, 452 (Idaho 1998) (“After considering the plain and ordinary words of the enabling statutes and executive order underlying PWR 107, we conclude that PWR 107 evidences an express intention by Congress that reserves a water right in the United States.”)6 These courts recognized that giving a single party control of these reserved water sources could lead to the monopolization of the water and surrounding land, contrary to the express intent of Congress. ¶43 The Objectors’ challenge to the Pothole Lake water claim is based upon arguments that it is too small to qualify for reservation under PWR 107; that the BLM has never listed the Pothole in its inventory of such reserved water sources; and that the BLM did not present this claim to the Montana Reserved Water Rights Compact Commission. The Objectors cite a federal regulation from 1980 which states that the reservation provisions of SRHA and PWR 107 should not be applied to “small springs or water holes affording 6 Reserved water rights were recognized in Winters v. United States, 207 U.S. 564, 28 S. Ct. 207 (1908), a case arising from Montana, holding that when Congress established Indian reservations it impliedly reserved sufficient water to satisfy the purposes of that reservation, with a priority date as of the creation of the reservation. This concept has been extended to include all types of federal reservations of land. Cappert v. United States, 426 U.S. 128, 138, 96 S. Ct. 2062 (1976). 22 only enough water for the use of one family and its domestic animals.”7 The Water Court noted that while the Objectors contend that the Pothole is too small to qualify for reservation, at the same time they contend that they and their ancestral free grazers have grazed stock there since the early twentieth century. They also contend that the Pothole right should be transferred to the Objectors for the same stockwater use. These inconsistent positions, the Water Court concluded, undermined the Objectors’ position on this claim. ¶44 The original PWR 107 in 1926 reserved “every spring or waterhole, located on unsurveyed public land.” (Emphasis added.) The broad language of the reservation clearly included this Pothole Lake and there is nothing to indicate that the original reservation has been reversed. The Objectors misconstrue the 1980 regulation language that they rely upon. That regulation did not retroactively unreserve water sources like the Pothole Lake that had been reserved since 1926. Rather, the regulation implemented statutory changes that Congress made in 1976, intended to limit future reservations of federal land. United States v. Idaho, 959 P.2d at 453. The regulation that the Objectors rely upon has no effect upon the original intent of SRHA and PWR 107 and does not provide any support for an argument that the property has been unreserved. The BLM’s failure to inventory this Pothole was likewise not significant in light of the original 7 The Objectors contend that State guidelines provide that a single family requires 1.5 acre feet of water per year, which is slightly more than is supplied by the Pothole. This guideline provides no authority that this Pothole Lake is no longer part of the reserved lands of the United States. 23 withdrawal, and while the BLM could have submitted its claim to the Reserve Water Right Compact Commission, it was not required to do so. ¶45 We agree with the Water Court’s conclusion that the Pothole Lake was properly reserved by an act of Congress in 1926 and that nothing raised by the Objectors supports any change in that status. We find no evidence that the Water Court made any determination based upon contested issues of material fact. The Water Court denied summary judgment as to the volume of each of the BLM claims and remanded to the Water Master for further proceedings to resolve those issues. ¶46 The decisions of the Water Court are affirmed. /S/ MIKE McGRATH We Concur: /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE Justice Laurie McKinnon, dissenting. ¶47 The Court’s conclusion that the claims of Objectors (Stockowners) are separate from the claims of BLM ignores that both share the same beneficial use: BLM’s claims are premised upon the actual beneficial use of water consumed by Stockowners’ cattle. In order to conclude that BLM has perfected its claim, which may only be characterized 24 as overlapping Stockowners’ claim, the Court again revisits Bailey and erodes, further, the long established principle in western water law that the application of water to beneficial use is essential to a completed appropriation. This time the Court ignores Bailey’s express language limiting it to public service corporations and expands Bailey’s narrow exception, which has been undisturbed for a century, to include “anyone” who “distributes” water has perfected a water right. By concluding BLM has a water right in the same water which has been placed to an actual beneficial use for over a century by Stockowners, the Court distorts Bailey; fails to address well-reasoned Montana and federal water law; and upends the touchstone of the prior appropriation doctrine that the application of water to beneficial use is essential to a completed appropriation. ¶48 It is well to consider, once again, the situation of the arid West prior to passage of several congressional acts, in particular, the Taylor Grazing Act of 1934. To do so, provides a foundation for our consideration of these overlapping claims and the purpose underlying the rule that application of water to a beneficial use is essential to a completed appropriation. The following excerpt eloquently explains the struggles of Montana pioneers and the role Congress understood it should play in development of the lands and waters of the arid West. In the beginning, the task of reclaiming . . . [the arid West] was left to the unaided efforts of the people who found their way by painful effort to its inhospitable solitudes. These western pioneers, emulating the spirit of so many others who had gone before them in similar ventures, faced the difficult problem of wresting a living and creating homes from the raw elements about them, and threw down the gage of battle to the forces of nature. With imperfect tools, they built dams, excabated canals, constructed ditches, plowed and cultivated the soil, and transformed dry 25 and desolate lands into green fields and leafy orchards. In the success of that effort, the general government itself was greatly concerned -- not only because, as owner, it was charged through Congress with the duty of disposing of the lands, but because the settlement and development of the country in which the lands lay was highly desirable. To these ends, prior to the summer of 1877, Congress had passed the mining laws, the homestead and preemption laws, and finally, the Desert Land Act. It had encouraged and assisted, by making large land grants to aid the building of the Pacific railroads and in many other ways, the redemption of this immense landed estate. That body thoroughly understood that an enforcement of the common-law rule, by greatly retarding if not forbidding the diversion of waters from their accustomed channels, would disastrously affect the policy of dividing the public domain into small holdings and effecting their distribution among innumerable settlers. In respect of the area embraced by the desert-land states, with the exception of a comparatively narrow strip along the Pacific seaboard, it had become evident to Congress, as it had to the inhabitants, that the future growth and well-being of the entire region depended upon a complete adherence to the rule of appropriation for a beneficial use as the exclusive criterion of the right to the use of water. The streams and other sources of supply from which this water must come were separated from one another by wide stretches of parched and barren land which never could be made to produce agricultural crops except by the transmission of water for long distances and its entire consumption in the processes of irrigation. Necessarily, that involved the complete subordination of the common-law doctrine of riparian rights to that of appropriation. And this substitution of the rule of appropriation for that of the common law was to have momentous consequences. It became the determining factor in the long struggle to expunge from our vocabulary the legend “Great American Desert,” which was spread in large letters across the face of the old maps of the far west. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 156-58, 55 S. Ct. 725, 728-29 (1935). ¶49 To ensure the success of the settlers’ efforts and to encourage the economic development of these arid public lands, Congress passed the mining laws, the homestead and preemption laws, the Desert Land Act of 1877, and the Taylor Grazing Act of 1934. 26 Departure from the riparian rights doctrine employed in the eastern states allowed for severance of land and water, with the consequence that water could be appropriated away from the channels of its source. In considering the Desert Land Act, the Supreme Court explained, “[i]t is hard to see how a more definite intention to sever the land and water could be evinced.” California Oregon Power Co., 295 U.S. at 161, 55 S. Ct. at 730 (1935). Two years later, the Supreme Court again explained [t]he federal government, as owner of the public domain, had the power to dispose of the land and water composing it together or separately; and by the Desert Land Act of 1877 (c. 107, 19 Stat. 377), if not before, Congress had severed the waters constituting the public domain and established the rule that for the future the lands should be patented separately. Ickes v. Fox, 300 U.S. 82, 95, 57 S. Ct. 412, 417 (1937). ¶50 The several congressional acts “simply recognize[] and give[] sanction, in so far as the United States and its future grantees are concerned, to the state and local doctrine of appropriation. . . . The public interest in such state control in the arid land states is definite and substantial.” California Oregon Power, 295 U.S. at 164-65, 55 S. Ct. at 731-32. By these various acts passed in the mid-1800s, Congress authorized private individuals to appropriate water on the public domain through compliance with local laws and customs. To this end, the Mining Act of 1866, 43 U.S.C. § 661 (2012), provides: Whenever, by priority of possession, rights to the use of water for mining, agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by local customs, laws, and decisions of the courts, the possessors and owners of such vested rights shall be maintained and protected in the same[.] . . . The Desert Land Act of 1877, 43 U.S.C. § 321 (2012), also provides: 27 That the right to use of water by the [entryman] . . . shall depend upon bona fide prior appropriation: and such right shall not exceed the amount of water actually appropriated, and necessarily used for the purpose of irrigation and reclamation: and all surplus water over and above such actual appropriation and use . . . shall remain and be held free for the appropriation and use of the public for irrigation, mining and manufacturing purposes subject to existing rights. ¶51 Finally, the Taylor Grazing Act of 1934 authorized the Secretary of the Interior to withdraw “. . . vacant, unappropriated, and unreserved lands from any part of the public domain of the United States . . . which in his opinion are chiefly valuable for grazing and raising forage crops . . . .” 43 U.S.C. § 315 (2012). The primary purpose of the Taylor Grazing Act was to “. . . preserve the land and its resources from destruction or unnecessary injury, to provide for orderly use, improvement, and development of the range . . . .” 43 U.S.C. § 315a. (2012) Thus, the Taylor Grazing Act did not reserve lands for a specific purpose, but was rather a management tool to establish grazing districts on the public domain and to ensure the orderly and efficient management of range resources. Public Lands Council v. Babbitt, 529 U.S. 728, 733, 120 S. Ct. 1815, 1819. Significantly, the Taylor Grazing Act did not provide an independent statutory basis for claims for federal water uses which would be inconsistent with the substantive requirements of state law. Indeed, the language of the Act itself provided: [N]othing in this Act shall be construed or administered in any way to diminish or impair any right to the possession and use of water for mining, agriculture, manufacturing, or other purposes which has heretofore vested or accrued under existing law validly affecting the public lands or which may be hereinafter initiated or acquired and maintained in accordance with such law. 28 43 U.S.C. § 315b (2012). Hence, water rights located within grazing districts are subject to state substantive law. ¶52 The general rule recognized throughout the states and territories of the arid region was “that the acquisition of water by prior appropriation for a beneficial use was entitled to protection[.]” California Oregon Power, 295 U.S. at 154, 55 S. Ct. at 727. Local custom and usage of the West held that the first appropriator of water for a beneficial use had the better right to use of the water to the extent of actual use. Thus, fundamental to water law in the West is the principle that “beneficial use shall be the basis, the measure and the limit of all rights to the use of water.” McDonald v. State, 220 Mont. 519, 530, 722 P.2d 598, 605 (1986) (emphasis in original). “State constitutions, statutes, and judicial decisions throughout the western states recognize the concept.” A. Dan Tarlock, et al., eds., Water Resource Management: A Casebook in Law & Public Policy 195 (4th ed. 1993). ¶53 Montana fully embraced the western water law principle that every citizen has the right to the use of the waters in the streams of this state by declaring in our 1889 Constitution that “[t]he use of all water now appropriated, or that may hereafter be appropriated for sale, rental, distribution or other beneficial use . . . shall be held to be a public use.” Mont. Const., art III, § 15 (1889) (emphasis added). This Court explained “public use” and set forth the controlling rule over a century ago in Bullerdick v. Hermsmeyer: The use of waters in the streams in this state is declared by the Constitution to be a public use. (Constitution, Art. III, sec. 15) Such being the case, 29 every citizen has a right to divert and use them, so long as he does not infringe upon the rights of some other citizen who has acquired a prior right by appropriation. Each citizen may divert and use them without let or hindrance when no prior right prevents. When his necessary use ceases, he must restore them to the channel of the stream, whereupon they may be used by any other person who needs them. 32 Mont. 541, 544-55, 81 P. 334, 338 (1905). Thus the 1889 Constitution declared that waters of this state are for “public use,” and are not owned by any particular citizen as they are under the riparian doctrine. This important principle of “public use,” which is distinct from and should not be confused with the “beneficial use” necessary to perfect a water right, has remained unchanged for a century. Montana’s 1973 Constitution, art. IX, § 3 (2), similarly provides “the use of all water that is now or may hereafter be appropriated for sale, rent, distribution, or other beneficial use . . . shall be held to be a public use.” (Emphasis added.) Significantly, to ensure continued adherence to the prior appropriation doctrine and the bedrock principle of beneficial use, the 1973 Constitution addressed specifically the requirement of “beneficial use” by expressly providing “[a]ll surface, underground, flood, and atmospheric waters within the boundaries of the state are property of the state for the use of its people and are subject to appropriation for beneficial use as provided by law.” Mont. Const., art. IX, § 3(2) (emphasis added). As further protection of the prior appropriation doctrine and existing rights, the 1973 Constitution added that “[a]ll existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed.” Mont. Const., art. IX, § 3(1). 30 Undisputedly, the requirement of beneficial use for a completed appropriation is deeply rooted in Montana’s history.1 ¶54 This Court, as well, has continuously recognized the significance of beneficial use in the prior appropriation doctrine. “Judicial opinions and scholarly commentators have repeatedly stated the rule that application to a beneficial use is the touchstone of the appropriation doctrine.” Bean Lake III, ¶ 10. In Montana, like all other western states, to complete a valid appropriation an appropriator must: (1) demonstrate a bona fide intention to apply the water to some existing or contemplated beneficial purpose, and (2) actually beneficially apply the water to the intended lands. Toohey v. Campbell, 24 Mont. 13, 17, 60 P. 396, 397 (1900); Bean Lake III, ¶ 10 (“the true test of appropriation of water is the successful application thereof to the beneficial use designed”). Both elements need not occur simultaneously; rather, an appropriator is permitted a reasonable amount of time to actually apply the water to the intended lands. McDonald, 220 Mont. at 529, 722 P.2d at 604. However, until the appropriator perfects his water right by actual use, the appropriator holds only an “inchoate right” to the water. Mont. Dep’t of Natural Res. & Conservation v. Intake Water Co., 171 Mont. 416, 436, 558 P.2d 1110, 1121 (1976). Thus, the ultimate “application of the water to the intended beneficial use is the final step taken by the appropriator in acquiring an appropriative right” and the “[a]pplication of the water to such use is absolutely essential to acquisition of the right.” 1 The Court confuses “public use” with “beneficial use.” Opinion, ¶ 35. Montana’s Constitution provides that reservoirs and storage are a “public use”, not a beneficial use,” and expressly recognizes the requirement that water, for a completed appropriation, must be applied to a beneficial use. 31 1 Wells A. Hutchins, Water Rights Laws in the Nineteen Western States 442 (1971) (emphasis added). ¶55 It is thus clear that in Montana, like all western states applying the prior appropriation doctrine, the true test of appropriation, and ultimately the perfection of a water right, is the successful application of water to a beneficial use. Bean Lake III, ¶ 10, citing Thomas v. Guiraud, 6. Colo. 530, 533 (Colo. 1993). The right to use water has always depended on an actual appropriation of the water for a beneficial use. See Toohey, 24 Mont. 11, 60 P. 396, 397. The Montana Water Use Act of 1973 did not change this bedrock principle of the prior appropriation doctrine. ¶56 As relevant here, water rights on federal land may be acquired in Montana by private appropriation. This Court has explained The legal title to the land upon which a water right acquired by appropriation made on the public domain is used or intended to be used in no wise affects the appropriator’s title to the water right, for the bona fide intention which is required of an appropriator to apply the water to some useful purpose may comprehend a use upon lands and possessions other than those . . . for which the right was originally appropriated. Smith v. Denniff, 24 Mont. 20, 29, 60 P. 398 (1900) (emphasis added, bona fide emphasized in original); see also Hays v. Buzzard, 31 Mont. 74, 81, 77 P. 423 (1904). This Court held in Bailey: While the Act of 1870 . . . sought to limit the right to appropriate water for irrigation to persons or corporations owning or in possession of agricultural lands, the provision was omitted advisedly from the Codes of 1895 and 1907, and it has since been held that the appropriator need not be either an owner or in possession of land in order to make a valid appropriation for irrigation purposes. 32 45 Mont. at 175, 122 P. at 582 (emphasis added). Finally, this Court addressed the right to appropriate water on federal lands in St. Onge v. Blakely, holding as follows: The right to use water may be owned without regard to the title to the land upon which the water is used; it is a possessory right which may be acquired by appropriation and diversion for a beneficial use; such a right can be acquired by a squatter on public lands . . . . 76 Mont at 18, 254, P. at 537. Finally, Wells A. Hutchins addressed the rule in Montana, explaining: The Montana rule does not require fee simple title in the appropriator to land to be irrigated under his right. It does apparently contemplate that if the appropriator does not own the land he intends to irrigate, at least rightful possession – that is, a possessory interest – is necessary to his acquisition of a valid water right. This requirement is satisfied by lawful entry and settlement on public lands or a bona fide intent to acquire title to both land and water, or by one holding lands under contract for its purchase. Also acceptable is rightful possession of land under a contract with the owner the nature of which does not appear in the record. Hutchins, at 263-64. See also In re Powder River Drainage Area, 216 Mont. 361, 702 P.2d 948 (1895) (validating stockwater rights appropriated by lessees on and for use on school trust land, even though ownership accrued to state); Sayre v. Johnson, 33 Mont. 15, 81 P. 389 (1905) (recognizing validity of water rights appropriated on public domain for use on school trust land, even though appropriator did not own or intend to patent place of use); Bullerdick v. Hermsmeyer, 32 Mont 541, 81 P. 334 (1905) (recognizing validity of water right appropriated to irrigate land appropriator only occupied on public domain); Hays v. Buzard, 31 Mont. 74, 77 P. 423 (1904) (recognizing validity of water right appropriated for use on land rented by appropriator) and Toohey, 24 Mont. 13, 60 P. 396 (denying claimant full amount of his claim, not for failure of possession or intent to 33 use, but because Act by which he acquired land was passed five years after his claimed irrigation appropriation). ¶57 The beneficial use contemplated in making an appropriation is one that inures to the benefit of the appropriator. Smith, 24 Mont. at 25, 60 P. at 401; Maclay v. Missoula Irr. Dist., 90 Mont. 344, 353, 3 P.2d 286, 290 (1931). “When a water right is acquired by appropriation and used for a beneficial and necessary purpose in connection with a given tract of the land, it is an appurtenance thereto and, as such, passes with the conveyance of the land, unless expressly reserved from the grant.” Maclay, 90 Mont. at 353, 3 P.2d at 290. See also Yellowstone Valley Co. v. Assoc. Mtg. Investors, 88 Mont. 73, 81, 295 P. 255, 257-58 (1930); Lensing v. Saay & Hansen Security Co., 67 Mont. 382, 384, 215 P. 999, 1000 (1923). Accordingly, a water right appropriated on the public domain in accordance with Montana law and custom vests in the appropriator. Osne Livestock Co. v. Warren, 103 Mont. 284, 290, 62 P.2d 206, 209 (1936); St. Onge, 76 Mont. at 18, 245 P. at 537; Smith, 24 Mont. at 26-27, 60 P. at 400. When stockwater is appropriated on federal or leased lands, the water is used for the benefit of the appropriator’s privately owned lands and becomes appurtenant thereto. Once perfected, the water right includes “an incorporeal hereditament . . . the right to have the water flow in the stream, without diminution or deterioration, to the head of the ditch or place of diversion, an easement in the stream . . . an easement not attached to land, and therefore akin to an easement in gross at the common law,” which may or may not become an easement annexed or attached to particular land. Smith, 24 Mont at 25, 27, 60 P. at 400. The mere use of a 34 water right by the appropriator on land titled in another, however, does not necessarily make the water right appurtenant to that land. “A water right, legally acquired, is in the nature of an easement in gross, which according to circumstances, may or may not be an easement annexed or attached to certain lands as an appurtenance thereto. Maclay, 90 Mont. at 353, 3 P.2d at 290 (citing Smith, 24 Mont. 20, 60 P. 398). ¶58 Here, the stockwater appropriated on federal land, in accordance with state law and custom, established a valid water right that vested in the Stockowners as the appropriator. These stockwater rights do not attach to federal land as appurtenances, but instead are used for the benefit of Stockowners’ privately owned lands and are appurtenant to those lands. See In re Hamilton Ranches Partnership, Mont. Water Ct. Case No. 41G-190; In re Edwards, Mont. Water Ct. Case No. 40E-A. ¶59 BLM argues that Stockowners water claims are not inconsistent with BLM’s federal claims and that, when constructing dams and reservoirs on federal grazing lands to impound stream flows and create ponds or lakes to benefit livestock, the BLM appropriated water for beneficial uses within the plain terms of the Water Use Act and in accordance with principles of prior appropriation. The BLM argues there is no authority which precludes them from acquiring rights to impound water for stock in the reservoirs. ¶60 While there may be no authority precluding BLM from filing a claim, the manner in which a water right may be perfected under Montana law is well-established. BLM ignores that the “touchstone of the appropriation doctrine” and the “true test” of a water right is the application of water to a beneficial use. Bean Lake III, ¶ 10. As the beneficial 35 use contemplated in an appropriation is one inuring to the appropriator, Smith, 24 Mont. at 30, 60 at 401-02; MacLay, 90 Mont. at 353, 3 P.2d at 290, the present issue concerns whether the benefit of water use inures to the Stockowners, whose stock use the water, or to BLM, who manages the lands which have been severed from the water. Here, actual beneficial use was accomplished by the Stockowners’ predecessors whose cattle drank the water BLM claims it has put to actual beneficial use. However, BLM is not the actual appropriator or proper owner of the water rights in these cases because the BLM never owned the livestock that appropriated the water or grazed federal lands. BLM may not claim as its actual beneficial use the actual beneficial use underlying Stockowners’ claims or, for that matter, any other appropriator of water for livestock. Stockowners and their predecessors, not BLM, were the actual appropriators of the water. ¶61 Importantly, we did not hold in Teton Coop., nor have we ever held that impoundment of water in and of itself is a beneficial use. In Teton Coop., we held, “[w]ater storage, which stabilizes and conserves water supplies, is encouraged in this state.” Teton Coop., ¶ 12. We did not say that storage or impoundment of water was an actual beneficial use. BLM attempts to obscure its dilemma of having failed to put the water it claims to actual beneficial use by attaching either Stockowners’ actual beneficial use or some yet to be determined livestock in the future; hence, the overlapping nature of the instant claims. However, our precedent clearly establishes that the benefit contemplated in an appropriation inures to the benefit of the appropriator. Smith, 24 Mont. at 25, 60 P. at 400; Maclay, 90 Mont. at 353, 3 P.2d at 290. The role of actual 36 beneficial use is significant to the outcome of these proceedings and cannot be overemphasized. ¶62 It is also clear that BLM’s construction of reservoirs does not, by itself, entitle BLM to a water right. The construction of reservoirs is not the “touchstone” of a valid appropriation, as opposed to beneficial use. Moreover, it is well-established in Montana that “the right to use water may be owned without regard to the title to the land upon which the water is used. . . .” St. Onge, 76 Mont. at 18, 254 P. at 537; see also Smith, 24 Mont. at 29-30, 60 P. at 401. As demonstrated by the aforementioned authority, valid rights to appropriate are not perfected upon reservoir construction alone. ¶63 This brings me full circle to Bailey. BLM could not have perfected a water right because it never put the water to actual beneficial use under Montana law. The Court fails to appreciate the distinction between making a claim and perfecting a claim, which likely stems from the Court’s similar confusion between a “public use” and a “beneficial use.” Opinion, ¶¶ 35, 39. While it is well-established that “two parties may at the same time be in possession of water from a creek and neither hold adverse to the other . . . ,” St. Onge, 76 Mont. at 16, 245 P. at 536, the question before the Court is not whether the use of water by a subsequent appropriator, BLM, can be said to be adverse or mutually exclusive of Stockowners’ use. The question is whether BLM has perfected a water right by applying the water it claims to an actual beneficial use—the touchstone of the prior appropriation doctrine. Stockowners object to the perfection of BLM’s claim because BLM has never applied the water to beneficial use except by overlapping Stockowners’ 37 beneficial use or some yet to be determined livestock in the future.2 Nonetheless, the Court reaches out to Bailey to find actual beneficial use for the BLM. This Court’s distortion of Bailey, however, does not address the overlapping nature of the claims regarding actual beneficial use. Application to an actual beneficial use was a perfection requirement for both common law and statutory rights under Bailey. Casting aside a significant amount of federal and state water law, not to mention the prior appropriation doctrine, the Court simply announces that there is no “public service corporation rule,” and that “as long as the water is made available for sale, rental or distribution or disposal, it is a valid appropriation under Bailey.” Opinion, ¶ 33. ¶64 Bailey addressed the narrow exception to the general rule that water rights perfect only upon actual beneficial use. Due to the nature of a public service corporation and consistent with the goals of irrigating the arid West, Bailey explained that to hold a corporation to the “actual beneficial use” requirement would be impractical because the corporation could not perfect its right until the water was put to actual beneficial use through the assistance of third parties at some point in time in the future. However, Bailey never altered the requirement that there be actual beneficial use for a valid appropriation. ¶65 In Bailey, we discussed the parties’ varying views on whether actual beneficial use is necessary to perfect a water right for a public service corporation. We explained that 2 The Court insists on interjecting, unnecessarily, new terminology into an area of law well entrenched in Montana’s history. The evidence clearly established that Stockowners’ “ancestral free grazers,” Opinion,¶ 39, were multi-generational ranching families who undisputedly established that they were successors-in-interest to the stockwater now claimed by the BLM. 38 under the corporation’s “theory thus advanced, the claimant who proceeds under the statute, and performs the acts required as set forth [in the statute], has a completed appropriation of water upon the completion of the work on his ditch, canal, or other means of diversion, even before the water is actually applied to a beneficial use.” Bailey, 45 Mont. at 174, 122 P. at 582 (emphasis added). We contrasted this view with the traditional principles advanced by the objectors wherein “it is held that actual application of the water to a beneficial use is a necessary prerequisite of a completed appropriation[.]” Bailey, 45 Mont. at 174, 122 P. at 582 (emphasis added). We rejected the latter view “as to a public service corporation” because the “public policy of this state [is] to encourage these public service corporations” to develop the arid regions and corporations would be unwilling to do so without the certainty of a completed appropriation. Bailey, 45 Mont. at 177, 122 P. at 583. ¶66 We made the following holdings. First, we agreed with the corporation that it could perfect a water right based on future beneficial use, explaining that, while the statute requires “beneficial use,” the beneficial use “may be prospective or contemplated.” Bailey, 45 Mont. at 175, 122 P. at 582. Second, we held that “as to a public service corporation, its appropriation is complete when it has fully complied with the statute and has its distributing system completed and is ready and willing to deliver water to users upon demand, and offers to do so.” Bailey, 45 Mont. at 177-78, 122 P. at 583. Lastly, we concluded that the extent of the appropriation is limited by: (1) the corporation’s “bona fide intention at the time” the appropriation is made; (2) the 39 corporation’s reasonably anticipated “needs”; and (3) the “capacity” of the corporation’s diversion. Bailey, 45 Mont. at 178-79, 122 P. at 583-84. We further imposed a condition subsequent on the right, concluding that the right may be lost by “nonuser for an unreasonable length of time.” Bailey, 45 Mont. at 179, 122 P. at 584. ¶67 BLM is not organized as a public service corporation under Montana law for purposes of Bailey. More fundamentally, BLM manages grazing districts and forage land. BLM cannot be characterized as an entity formed or created for the purpose of appropriating water for sale, distribution, or rental to others; and, indeed, such a claim would be inconsistent with the purpose of the Taylor Grazing Act. Grazing permits and fees are not issued for the purpose of selling, renting, and distributing of water. ¶68 In contrast, Bureau of Reclamation projects, as in Bailey, are organized for the purpose of selling, renting, and distributing water in exchange for users paying back the costs of construction of the projects. Significantly, the United States Supreme Court has already held that the Bureau of Reclamation, which is organized for the purpose of distributing water, does not own the water sold and distributed to its users. In Ickes, 300 U.S. at 94-95, 57 S. Ct. at416-17, the Supreme Court explained Although the government diverted, stored and distributed the water, the contention of petitioner that thereby ownership of the water or water-rights became vested in the United States is not well founded. Appropriation was made not for the use of the government, but, under the Reclamation Act, for the use of the land owners; and by the terms of the law and of the contract already referred to, the water-rights became the property of the land owners, wholly distinct from the property right of the government in the irrigation works. 40 Recall the Supreme Court’s early precedent, as well, recognizing severance of land and water in order to facilitate irrigation and economic growth in the arid West. Appropriation, as recognized in Ickes, was not for the use of BLM, but for the use of landowners to water their livestock and fields. Furthermore, in contrast to the Bureau of Reclamation whose sole purpose is the distribution of water, BLM, pursuant to the Taylor Grazing Act, manages grazing districts, forage, and land. The conclusion reached in Ickes, that the water rights became the property of the landowners as against a federal agency whose purpose was to distribute water, undermines this Court’s reliance on Bailey. Ickes is consistent with the prior appropriation doctrine that a completed appropriation inures to the appropriator upon application of water to actual beneficial use. ¶69 Without actual beneficial use, there can be no water right. BLM attempts to perfect a water right on the basis that it constructed reservoirs, owns the lands beneath the reservoirs, and has the duty to manage grazing districts. None of these assertions establish a valid water right under Montana law. The Court’s expansion of Bailey distorts bedrock principles of the prior appropriation doctrine; namely, that the application of water to beneficial use is essential to a completed appropriation which inures in the appropriator. Bailey certainly does not recognize that offering or making available for future consumption is an application of water to an actual beneficial use. To conclude otherwise would be tantamount to permitting water rights to be created without an actual use and then indefinitely held without any actual use until the appropriator sees fit. It has long been established that water is too scarce a resource to speculate with. See 41 Thorpe v. Freed, 1 Mont. 651, __ P. __ (1872). BLM has never put the water it seeks to appropriate to a beneficial use; it simply overlaps its claims with those of the Stockowners and unnamed stockowners in the future. Here, BLM made available water, through its partial participation in the construction of reservoirs, which was to be consumed by Stockowners’ livestock. Stockowners’ livestock put to actual beneficial use Stockowners’ water, and it is therefore Stockowners who own these water rights under Montana law and not the BLM.3 ¶70 Finally, I disagree with the Court’s decision regarding PWR107 and believe the Court has misunderstood Stockowners’ objections. Stockowners maintain that, for purposes of summary judgment, the court should not have assessed the pothole size. More particularly, Stockowners argue that in utilizing the DNRC stockwater consumption guideline it applied one standard for calculation to the exclusion of another, with neither party advocating a particular standard or calculation as to how many animals could be watered from the pothole. Further, Stockowners argue that the DNRC guideline was applied inconsistently in that the court did not consider the domestic consumption standard (1.5 acre-feet per household), which demonstrates that there was not enough water in the pothole to meet even domestic needs. ¶71 The Water Court and this Court appear to decide this issue on the basis that Stockowners position was inconsistent with their position that historically the pothole had been used to water cattle. However, as Stockowners point out, reserved rights are 3 The Montana Water Court can modify or adjust any claim element to the extent supported by the evidence of historical use. McDonald v. State, 220 Mont. 519, 722 P.2d 598 (1986); Mont. Trout Unlimited v. Beaverhead Water Co., 2011 MT 151, ¶¶ 21, 23, 361 Mont. 77. 42 evaluated, adjudged, and quantified by considering the use intended by the federal legislation; in contrast, state based rights are evaluated in accordance with historic use. State ex rel Greely v. Confederated Salish & Kootenai Tribes, 219 Mont. 76, 89, 712 P.2d 754, 762 (1985). For these reasons, summary judgment on the PWR 107 was inappropriate and I would reverse and remand for further proceedings. ¶72 I dissent. /S/ LAURIE McKINNON	December 28, 2016
4ba01993-4519-4f76-9e0a-3930ad462eda	State v. J. Meacham	2016 MT 334N	DA 16-0174	Montana	Montana Supreme Court	DA 16-0174 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 334N STATE OF MONTANA, Plaintiff and Appellee, v. JESSIE WILLIAM MEACHAM, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2014-298 Honorable Karen Townsend, Presiding Judge COUNSEL OF RECORD: For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy County Attorney, Missoula, Montana Submitted on Briefs: November 16, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 16-0174 12/21/2016 Case Number: DA 16-0174 FILED Ed Smith CLERK OF THE SUPREME COURT STATE OF MONTANA 12/21/2016 Case Number: DA 16-0174 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Jessie Meacham appeals the Fourth Judicial District Court’s order denying his motion to suppress evidence and to dismiss charges relating to his arrest for driving under the influence. We affirm.1 ¶3 Missoula County Deputy Sheriff Rebecca Birket observed Meacham’s vehicle stuck in a snowbank behind a local saloon on February 27, 2014, at around 10:30 p.m. She approached Meacham’s vehicle to see if she could render aid. Meacham initially avoided eye contact with Deputy Birket and stared blankly straight ahead. Deputy Birket testified that she got out of her patrol car and approached to within approximately three feet of Meacham’s vehicle. She asked Meacham if he needed assistance. Meacham opened his car door and responded, “I’m good.” During this brief interaction, Deputy Birket noticed that Meacham slurred his words, that he smelled of alcohol, and that his eyes were “glossy,” “watery,” and “red.” 1 The appendix of appellant’s opening brief contained transcripts from hearings on October 17 and November 10, 2014. These transcripts were not made part of the District Court record according to M. R. App. P. 8(1). Because both parties cited to these transcripts on appeal, and because the transcripts appear to constitute authentic records of the proceedings, we rely on them in part in our summary of the factual background of this case. 3 ¶4 Deputy Birket began looking around the rear of Meacham’s vehicle. As she did, Meacham’s tires gained traction and he drove away. Deputy Birket yelled at him to stop. He did not respond, so Deputy Birket pursued him in her patrol car. Meacham initially eluded Deputy Birket, but another law enforcement officer stopped him. Deputy Birket arrived and questioned Meacham, and Meacham admitted that he had been drinking. Deputy Birket arrested Meacham. ¶5 The State charged Meacham with felony driving under the influence, obstructing a peace officer, and driving while license suspended or revoked. Meacham moved to suppress the evidence against him and to dismiss the charges. He argued that Deputy Birket lacked particularized suspicion to justify her investigative stop of his vehicle. ¶6 The District Court denied Meacham’s motion. It reasoned that Deputy Birket properly initiated contact with Meacham under the “community caretaker doctrine” and that, while acting in her community caretaker capacity, she observed facts sufficient to establish particularized suspicion that Meacham had been driving under the influence. ¶7 On appeal, Meacham concedes that Deputy Birket properly initiated contact with him under the community caretaker doctrine. He contends, however, that her community caretaker function ceased at the moment Meacham told her that he did not need her assistance. Meacham argues that Deputy Birket did not, at that point, possess particularized suspicion of criminal wrongdoing. He contends that her subsequent interactions with him constituted an unlawful seizure. As a result, all the evidence she obtained during that unlawful seizure should have been suppressed. 4 ¶8 We review a district court’s grant or denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were applied correctly as a matter of law. City of Missoula v. Moore, 2011 MT 61, ¶ 10, 360 Mont. 22, 251 P.3d 679. A district court’s finding that particularized suspicion exists is a question of fact, which we review for clear error. City of Missoula, ¶ 10. We review the grant or denial of a motion to dismiss in a criminal proceeding de novo to determine whether the district court’s conclusion of law is correct. State v. Kant, 2016 MT 42, ¶ 11, 382 Mont. 239, 367 P.3d 726. ¶9 This Court recognizes the community caretaker doctrine, which serves as an exception to the warrant requirement for seizures. State v. Spaulding, 2011 MT 204, ¶ 18, 361 Mont. 445, 259 P.3d 793. The doctrine allows a police officer to stop and investigate when the officer reasonably suspects that “a citizen is in need of help or is in peril.” State v. Lovegren, 2002 MT 153, ¶ 25, 310 Mont. 358, 51 P.3d 471. Once the officer is “assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure which must be justified by something other than the community caretaker doctrine, such as particularized suspicion or probable cause.” Spaulding, ¶ 21. ¶10 Particularized suspicion requires that an officer possess: “(1) objective data and articulable facts from which he or she can make certain reasonable inferences; and (2) a resulting suspicion that the person to be stopped has committed, is committing, or is 5 about to commit an offense.” Brunette v. State, 2016 MT 128, ¶ 17, 383 Mont. 458, 372 P.3d 476 (citing Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842). ¶11 As Meacham acknowledges, the community caretaker doctrine permitted Deputy Birket to initiate contact with Meacham to see if he needed assistance. Lovegren, ¶ 25. Once Meacham assured Deputy Birket that he did not require her assistance, any further actions by Deputy Birket constituted a seizure which needed to “be justified by something other than the community caretaker doctrine, such as particularized suspicion.” Spaulding, ¶ 21. ¶12 Deputy Birket’s testimony establishes that she had developed particularized suspicion by the time Meacham assured her that he did not need her help. Deputy Birket had observed Meacham’s car stuck in a snowbank behind a saloon at night. Meacham avoided eye contact with her and was staring blankly straight ahead when she first approached him. During her conversation with Meacham, Deputy Birket noticed numerous objective signs of intoxication. These observations constituted “articulable facts” from which Deputy Birket made the reasonable inference that Meacham had committed or was committing the offense of driving under the influence. See Brown, ¶ 20; Hulse v. DOJ, Motor Vehicle Div., 1998 MT 108, ¶ 40, 289 Mont. 1, 961 P.2d 75 (stating that a driver’s smell of alcohol, bloodshot and glassy eyes, and slurred speech may establish particularized suspicion that the driver is intoxicated); State v. Marcial, 2013 MT 242, ¶¶ 5, 19, 371 Mont. 348, 308 P.3d 69 (holding that where an officer asked defendant driver who nearly crashed his car if he was okay, and where the officer smelled 6 alcohol on defendant among other signs of intoxication, the officer possessed particularized suspicion that defendant had been driving under the influence). Deputy Birket’s investigation and pursuit of Meacham after Meacham assured her that he did not require assistance was thus “justified by something other than the community caretaker doctrine”—particularized suspicion. Spaulding, ¶ 21. ¶13 The District Court’s conclusion that Deputy Birket possessed particularized suspicion was not clearly erroneous. City of Missoula, ¶ 10. Because Deputy Birket possessed particularized suspicion, the investigation that followed was lawful. The District Court thus correctly denied Meacham’s motion to suppress evidence and to dismiss the charges. City of Missoula, ¶ 10; Kant, ¶ 11. ¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. The judgment is affirmed. /S/ BETH BAKER We concur: /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ JIM RICE	December 21, 2016
21513403-71be-43f3-a143-0baa3db63f01	Suzor v. International Paper Co.	2016 MT 344	DA 15-0510	Montana	Montana Supreme Court	DA 15-0510 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 344 CHARLOTTE SUZOR, Plaintiff, Appellant and Cross-Appellee, v. INTERNATIONAL PAPER COMPANY, SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CINDY BERGLIND-GROOMS, and DOROTHY “DOT” SCOTT, Defendants, Appellees and Cross-Appellants. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 10-1115 Honorable Robert L. Deschamps, Presiding Judge COUNSEL OF RECORD: For Appellant: Rex Palmer, Attorneys Inc., P.C., Missoula, Montana For Appellees: Gerry Fagan, Moulton Bellingham PC, Billings, Montana Submitted on Briefs: October 12, 2016 Decided: December 27, 2016 Filed: __________________________________________ Clerk 12/27/2016 Case Number: DA 15-0510 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Charlotte Suzor injured her knees in a workplace accident in 1982, and her knees have been prone to giving out unpredictably ever since. She settled her workers’ compensation claims in 1987 with her self-insured employer, Champion International Corporation, but reserved the right to seek future medical benefits for ongoing complications from her injury. In 2009, Suzor fell and broke her hip after her knees gave out. Her physician filed a claim with Sedgwick Claims Management Services, Inc. (Sedgwick), the third-party administrator for the workers’ compensation plan now funded by her employer’s successor in interest, International Paper Company. Sedgwick initially denied the claim, leading Suzor to sue International Paper Company, Sedgwick, and two of Sedgwick’s employees (collectively, the “Appellees”) for bad faith and breach of fiduciary duty. Following a jury trial in the Fourth Judicial District Court, Missoula County, judgment was entered in favor of the Appellees. Suzor timely appealed. We affirm. ISSUES ¶2 We address the following issues on appeal: 1. Did the Appellees owe Suzor a fiduciary duty? 2. Did the District Court abuse its discretion in denying Suzor’s jury instruction on causation? 3. Was the mistaken association of the wrong juror questionnaire with a juror a structural error that necessitates a new trial? 4. Is the jury’s award of no damages supported by sufficient evidence? 5. Did the District Court abuse its discretion in its award of attorney’s fees? 3 BACKGROUND ¶3 In 1982, Suzor injured her knees while working for Champion International. At the time of her injury, Champion International self-insured its workers’ compensation liability. Suzor eventually settled her workers’ compensation claim, reserving the right to be reimbursed for all medical treatment that would result from her injury. At some point after her injury, International Paper bought Champion International and assumed its outstanding workers’ compensation obligations. International Paper contracted with Sedgwick to handle workers’ compensation claims as a third-party administrator. ¶4 In the spring of 2009, Suzor fell and fractured her hip while getting into her pickup truck. According to her orthopedist, Dr. Michael Woods, the patellectomy Suzor underwent to treat her prior injury had made her knees unstable, and that instability was the cause of the fall that broke her hip. Under the terms of her workers’ compensation settlement, Suzor was entitled to medical benefits for the broken hip, as it was a consequence of her workplace injury. ¶5 Suzor made an appointment with Dr. Woods for April 23, 2009. The day after her appointment, Woods initiated a worker’s compensation claim by requesting authorization for an MRI. Cindy Berglind-Grooms, a claims adjustor at Sedgwick, fielded the request and denied it the same day. Suzor visited Dr. Woods again on May 4, and Dr. Woods sent his notes from that appointment to Sedgwick to substantiate the claim. Sedgwick again denied the claim, concluding that it was “not related to the original claim.” ¶6 Suzor met with Dr. Woods again on May 18. At that appointment, Suzor indicated the pain medication Dr. Woods had prescribed was working. Suzor and Dr. 4 Woods chose to wait and see how the hip would heal, and scheduled another appointment to reevaluate her progress in June. According to Dr. Woods’ notes from the June appointment, Suzor and Dr. Woods decided to give the hip another month of healing without surgery, even though Suzor was feeling worse. Suzor met with Dr. Woods once more on July 9, 2009, and the treatment notes from that appointment indicate Suzor and Dr. Woods decided to pursue surgery instead of waiting for the hip to heal. ¶7 By August, Suzor had hired an attorney who wrote to Berglind-Grooms, asking her to reconsider the denial. On August 19, Sedgwick accepted the claim. The next day, Suzor underwent a pre-operative physical to prepare for hip surgery. Although the surgery was scheduled for August 26, Suzor postponed the operation due to a family emergency. On September 16, 2009, Suzor underwent surgery for her broken hip, and Sedgwick approved payment for all of Suzor’s visits with Dr. Woods, and for the surgery. ¶8 Suzor filed suit on August 18, 2010, to recover damages for the Appellees’ alleged breach of a fiduciary duty and bad faith. Suzor claimed that the initial denial of her medical benefits resulted in months of pain and suffering while she waited for Sedgwick to approve her surgery. Suzor joined as defendants Sedgwick, International Paper, Berglind-Grooms, and Dorothy Scott, a claims adjuster and Berglind-Grooms’ supervisor at Sedgwick. ¶9 During discovery, Suzor requested production of contracts among Sedgwick, International Paper and Champion International, as well as financial and tax information from each defendant. When the Appellees objected to production of the requested 5 documents, Suzor filed a motion to compel discovery. On April 17, 2014, the District Court granted the motion in part and ordered the Appellees to turn over the requested contracts, but denied without prejudice Suzor’s demand for tax and financial information, concluding that discovery of that information was premature because it pertained only to the question of punitive damages. ¶10 The Appellees filed a motion for summary judgment on Suzor’s claim of breach of a fiduciary duty and punitive damages. On June 24, 2014, the District Court granted summary judgment to the Appellees on Suzor’s fiduciary duty theory, determining that no legal authority supported the proposition that employers owe fiduciary duties to their employees in the context of workers’ compensation insurance. At the same time, the District Court denied summary judgment on the question of punitive damages. On March 10, 2015, the District Court issued an order compelling production of the Appellees’ financial and tax information, reasoning that the denial of summary judgment on punitive damages counseled in favor of discovery. ¶11 The case was tried before a jury over five days in April 2015. At the beginning of jury selection, the clerk of court called the roll of prospective jurors. The clerk called the name Steven Schmidt, to which Steven E. Schmidt (Juror Schmidt) responded. Unbeknownst to the parties, the clerk had mistakenly provided them with the completed jury questionnaire of Steven A. Schmidt before voir dire. This mistake was not realized until after the trial. Nonetheless, Suzor’s counsel questioned Juror Schmidt during voir dire and passed the jury for cause. 6 ¶12 Suzor submitted proposed jury instructions before the trial, including the following jury instruction on causation: “Defendants are liable if their conduct was a cause of Charlotte Suzor’s harms. The conduct of Defendants is the cause of the harm if it helped produce it and if the harm would not have occurred without it.” The District Court refused this instruction, reasoning the instruction was “a negligence instruction that doesn’t apply well to the facts of this case and is confusing.” Instead, the District Court instructed the jury that Charlotte had the burden to show that the Appellees breached a duty to her and caused her to suffer losses or harms. ¶13 At the end of the trial, the jury returned its verdict on a special verdict form, which posed two questions relevant to this appeal. First, the form asked whether “any of the Defendants breach[ed] their duty to Charlotte Suzor,” and the jury answered in the affirmative. Second, the form asked whether “the breach of duty by any of the Defendants cause[d] Charlotte Suzor to suffer loss or harm,” to which the jury answered “No.” Because the jury found the Appellees did not cause Suzor any damages, the District Court entered judgment in favor of the Appellees. ¶14 After trial, Suzor filed a motion for fees related to her earlier motion to compel discovery, pursuant to M. R. Civ. P. 37. Appellees objected to the per-hour rate charged for Suzor’s attorney’s time, as well as 320 minutes of time calculated toward Suzor’s attorney’s fees, arguing that time was recorded after the District Court ruled on the motion to compel and therefore could not be awarded under M. R. Civ. P. 37. The District Court deducted the 320 minutes from the time awarded and split the difference between the parties’ requested hourly rates. 7 ¶15 Suzor timely appealed from the District Court’s grant of summary judgment on the question of fiduciary duty, the jury’s verdict, and the post-trial award of attorney’s fees. STANDARDS OF REVIEW ¶16 We review de novo a district court’s grant of summary judgment, applying the criteria of M. R. Civ. P. 56. Pilgeram v. GreenPoint Mortg. Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839. Whether a fiduciary duty exists between two parties is a question of law. Gliko v. Permann, 2006 MT 30, ¶ 24, 331 Mont. 112, 130 P.3d 155. We review questions of law de novo. Johnson v. Costco Wholesale, 2007 MT 43, ¶ 19, 336 Mont. 105, 152 P.3d 727. ¶17 Generally, we review a district court’s denial of a motion for a new trial on the grounds listed in § 25-11-102, MCA, for a manifest abuse of discretion. Cooper v. Hanson, 2010 MT 113, ¶ 28, 356 Mont. 309, 234 P.3d 59. We have made an exception to that general standard in the case of § 25-11-102(6), MCA, which provides for a new trial if there is insufficient evidence to justify the verdict. The sufficiency of evidence is a question of law that does not involve discretion on the part of the district court. Stubblefield v. Town of W. Yellowstone, 2013 MT 78, ¶ 14, 369 Mont. 322, 298 P.3d 419. We therefore review de novo a district court’s denial of a new trial on the basis of the sufficiency of the evidence. Stubblefield, ¶ 14 (citing Giambra v. Kelsey, 2007 MT 158, ¶ 26, 338 Mont. 19, 162 P.3d 134). ¶18 District courts have discretion to determine what constitutes reasonable attorney’s fees. Plath v. Schonrock, 2003 MT 21, ¶ 40, 314 Mont. 101, 64 P.3d 984. We will not 8 disturb a district court’s determination of attorney’s fees absent an abuse of that discretion. Plath, ¶ 40. DISCUSSION ¶19 1. Did the Appellees owe Suzor a fiduciary duty? ¶20 The terms of an insurance policy may create fiduciary duties that insurers owe to their insureds. See, e.g., Gibson v. W. Fire Ins. Co., 210 Mont. 267, 275, 682 P.2d 725, 730 (1984). Those fiduciary duties arise from the contractual nature of the insurer-insured relationship. In Mountain W. Farm Bureau Mut. Ins. Co. v. Brewer, 2003 MT 98, 315 Mont. 231, 69 P.3d 652, we noted that a third-party claimant does not have a contractual relationship with an insurer, and therefore the fiduciary duties running from the insurer to the insured do not flow to the third-party claimant as well. Brewer, ¶ 38. Suzor seizes upon language we used in Brewer: “the [plaintiffs] point to no contractual corollary which would impose fiduciary obligations upon [the insurer].” Brewer, ¶ 38. Suzor reasons that the contractual relationship between an employee and a self-insured employer is the type of contractual corollary that creates a fiduciary duty running from the insured employer to the third-party beneficiary employee. ¶21 In Brewer, we noted several hallmarks of the traditional, contractual relationship associated with insurance: an contract for insurance purchased by the insured from the insurer, premiums paid by the insured, and the bargained-for benefit of a defense provided by the insurer. Brewer, ¶ 38. We observed that these hallmarks are missing in the context of a third-party claim, where no contract exists between the claimant and the insurer, the claimant pays no premiums, and an insurer is not obligated to defend the 9 claimant. Although our discussion only mentioned the duty to defend as a bargained-for benefit of insurance, the same logic applies to the bargained-for benefit of a duty to indemnify within limits—the third-party claimant is not entitled to such indemnification, but as a practical matter, she will be compensated by the insurer if she can establish the insured’s liability. ¶22 For strong public policy reasons, workers’ compensation insurance differs from traditional casualty insurance in important ways, but the hallmarks of insurance do not change substantially. The employer pays a premium, and in return the insurer agrees to indemnify the employer against most forms of tort liability it might otherwise incur if an employee is injured at work. The law does not allow significant deviation in this relationship. See §§ 39-71-406 (misdemeanor to make employee pay any part of premium), -407 (detailing the scope of liability assumed by the workers’ compensation insurer), MCA. Admittedly, an employer who opts to self-insure under plan No. 1 strays further from the traditional insurance relationship by eliminating the insurance contract and replacing premiums with funds set aside and earmarked for the payment of claims as they arise. See §§ 39-71-2101 to -2115, MCA (describing self-insurance under compensation plan No. 1). However, the employees of a self-insured employer assume no new contractual rights or obligations as a result of their employer’s choice. Consequently, an injured employee’s position as a third-party claimant does not materially change in the context of self-insurance. ¶23 We decline Suzor’s invitation to expand fiduciary duties to an employee–claimant in the context of employer self-insurance. As a preliminary matter, Suzor’s contractual 10 corollary argument reaches only one of the Appellees, International Paper, as the successor in interest to her employment contract. Suzor cannot credibly argue that Sedgwick, Berglind-Grooms, and Scott were also parties to her employment contract. Moreover, Suzor’s position is belied by her own complaint, in which she acknowledges that it was International Paper that was the insured under the worker’s compensation insurance plan, and not Suzor as an employee. If International Paper had purchased workers’ compensation insurance through a private insurer under plan No. 2 or the State Fund under plan No. 3, it would be beyond dispute that International Paper was the insured, and no fiduciary duties would extend beyond that insurer-insured relationship. International Paper’s decision to self-insure under plan No. 1 makes it both the insurer and insured under the plan, but it does not alter Suzor’s status as a third-party claimant. As such, the reasoning of Brewer controls Suzor’s claim. ¶24 Suzor admits in her reply brief that we have not expressly adopted her contractual corollary argument, and she cites no persuasive authority to support the expansion of fiduciary duties from a workers’ compensation insurer to an employee. Nonetheless, Suzor warns that denying her the benefit of a fiduciary duty owed by the Defendants would reduce Brewer’s “contractual corollary analysis” to a nullity. We disagree. Like the claimant in Brewer, Suzor is not an insured under the contract, she has not paid a premium, and she is not entitled to the bargained-for benefit of indemnification, although she will ultimately receive compensation just like any other third-party claimant. We therefore conclude as we did in Brewer that the third-party claimant, Suzor, is not owed a 11 fiduciary duty. Thus, the District Court did not err in granting summary judgment on the issue of fiduciary duty. ¶25 2. Did the District Court abuse its discretion in denying Suzor’s jury instruction on causation? ¶26 “The purpose of jury instructions is to guarantee decisions consistent with the evidence and the law, which can be accomplished when the instructions are as plain, clear, concise, and brief as possible.” Goles v. Neumann, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089. District courts exercise broad discretion when instructing juries, although that discretion is limited by the caveat that “instructions must fully and fairly instruct the jury regarding the applicable law.” Goles, ¶ 9. If this overriding principle is satisfied, we will reverse a district court only if its instruction decision amounts to a manifest abuse of discretion. Payne v. Knutson, 2004 MT 271, ¶ 14, 323 Mont. 165, 99 P.3d 200. Even if a district court fails to provide a necessary instruction, we will not reverse the district court unless the omission prejudicially affected a party’s substantial rights. Busta v. Columbus Hosp., 276 Mont. 342, 373, 916 P.2d 122, 140-41 (1996). ¶27 Suzor argues the District Court erred in denying her proposed instruction on causation, which read as follows: “Defendants are liable if their conduct was a cause of Charlotte Suzor’s harms. The conduct of Defendants is the cause of the harm if it helped produce it and if the harm would not have occurred without it.” The proposed instruction was borrowed from pattern instructions for negligence actions and our decision in Busta. The District Court chose not to give the instruction, concluding it was “a modification of a negligence instruction that doesn’t apply well to the facts of this case and is confusing.” 12 Instead, the District Court instructed the jury that Suzor bore the burden of proving “Defendants breached their duty to her” and “Defendants’ breach of their duty caused her to suffer losses or harms.” Suzor offered no alternative instruction to elaborate on the meaning of “caused her to suffer losses or harms.” ¶28 The District Court’s instruction fully and fairly instructed the jury on Suzor’s burden of proof. We have previously recognized that cause-in-fact is a “simple concept that most lay people are capable of understanding.” Busta, 276 Mont. at 373, 916 P.2d at 140-41. We will not fault the District Court for presenting causation to the jury in terms that are clear and concise—after all, that is the purpose of jury instructions. Even if we were to conclude some elaboration on the concept of causation was necessary under the facts of this case, Suzor has not shown how the omitted instruction prejudiced her substantial rights. Therefore, the District Court did not abuse its discretion in denying Suzor’s instruction on causation. ¶29 3. Was the mistaken association of the wrong juror questionnaire with a juror a structural error that necessitates a new trial? ¶30 A structural error is one that is typically of constitutional dimensions, precedes the trial, and undermines the fairness of the entire trial proceeding. Because of its nature, it cannot be qualitatively or quantitatively weighed against the admissible evidence introduced at trial. Structural error is presumptively prejudicial and is not subject to harmless error review . . . . State v. Van Kirk, 2001 MT 184, ¶ 38, 306 Mont. 215, 32 P.3d 735. Constitutional errors are considered structural “only in a very limited class of cases.” State v. LaMere, 2000 MT 45, ¶ 23, 298 Mont. 358, 2 P.3d 204 (internal quotation marks omitted). Most of our 13 structural error jurisprudence arises from criminal trials, in which we are particularly sensitive to the fair trial rights of defendants. ¶31 In the criminal context, we have held that the failure of a district court to substantially comply with jury selection statutes is a structural error that requires reversal. LaMere, ¶ 23. In LaMere, the district court clerk summoned jurors by telephone, despite a statute that required the clerk to serve notice by mail. See § 3-15-505, MCA (1997). The defendant in LaMere argued the telephone summons violated his right to a fair and impartial jury by effectively screening out Native Americans and potential jurors living below the poverty line. The defendant provided statistical analysis of the distribution of telephone service in the county, which showed that Native Americans and jurors below the poverty line were significantly less likely to be reached by the clerk’s telephonic summons. After an extensive examination of the strong public policy and historic roots of the criminal defendant’s right to a jury trial, we agreed that the defendant’s rights were violated. We noted that the statutes governing jury selection are “a legislative amplification of the constitutional . . . right to a speedy, public trial by an impartial jury.” LaMere, ¶ 32 (internal quotation marks omitted). We have consistently interpreted the right to an impartial jury as one that ensures juries will be randomly “‘drawn from a cross section of the community.’” LaMere, ¶ 34 (quoting State v. Taylor, 168 Mont. 142, 145, 542 P.2d 100, 101 (1975)); accord Tribby v. Nw. Bank of Great Falls, 217 Mont. 196, 207, 704 P.2d 409, 416 (1985); Dvorak v. Huntley Project Irrigation Dist., 196 Mont. 167, 170, 639 P.2d 62, 64 (1981). Therefore, the jury selection statutes are 14 meant to preserve the randomness of the jury pool, which in turn preserves the impartiality of the entire jury system. ¶32 Suzor argues two jury selection statutes were implicated in the mix-up regarding Juror Schmidt’s questionnaire: §§ 3-15-405 and 3-15-507, MCA. Section 3-15-507, MCA, requires the clerk of court to call the names of all jurors who were summoned but not excused. In this case, the clerk called the name Steven Schmidt, and Juror Schmidt responded. Suzor does not claim that Juror Schmidt was not the Steven Schmidt randomly drawn from the jury pool and summoned to court. Indeed, it would be highly unlikely that the wrong Steven Schmidt, having never received a summons, would come to the courtroom on his own volition and for no apparent reason on the day of voir dire. We find nothing in the record that suggests the clerk called the “wrong” Steven Schmidt on the day of jury selection. We therefore conclude that the clerk did not violate § 3-15-507, MCA. ¶33 Section 3-15-405, MCA, allows a clerk of court to attach questionnaires to the notices sent to all jurors drawn from the jury pool. The use of questionnaires is permissive, and nothing in the statute requires the clerk to collect questionnaires or guarantees the parties will have access to jurors’ responses. The parties’ access to the jury questionnaires is merely implied by the District Court’s local rule that limits the parties’ ability to question prospective jurors about matters already addressed in the questionnaires. Although the clerk mistakenly provided the parties with the wrong juror questionnaire for Juror Schmidt, the statute itself does not require the clerk to provide the 15 juror questionnaires to the parties. Thus, we cannot conclude that the clerk facially violated § 3-15-405, MCA. ¶34 We likewise cannot conclude that the juror questionnaire mix-up amounts to substantial noncompliance with the jury selection statutes. The purpose of the jury selection statutes is to preserve the impartiality of juries through a truly random drawing. Unlike LaMere, where the statutory violation disproportionately excluded Native Americans and the poor from the jury drawing, the clerk’s mistake here did not undermine the randomness and impartiality of the jury drawing. Nor was the mistake a material deviation from the statutory process, as in Tribby and Dvorak. In essence, Suzor asks us to expand the doctrine of structural error beyond constitutional and statutory compliance to reach a mistake in performing a technical obligation merely implied by the local rules of the District Court. Because structural errors exist only in a very limited class of cases, we decline to construe structural error so broadly. ¶35 The question remains whether Suzor is entitled to a new trial pursuant to § 25-11-102(1) and (3), MCA. That statute allows a court to grant a new trial if a party’s substantial rights were materially affected by an “irregularity in the proceedings of the court” or an “accident or surprise that ordinary prudence could not have guarded against.” Section 25-11-102(1), (3), MCA. The manifest abuse of discretion required to reverse a district court’s denial of a new trial is rare, but if “the prejudicial matter at issue undermines the fairness to such a degree that a new trial is the only remedy,” we will reverse. Cooper v. Hanson, 2010 MT 113, ¶ 42, 356 Mont. 309, 234 P.3d 59 (internal quotation marks omitted). 16 ¶36 Suzor has failed to show how the questionnaire mix-up prejudiced her rights. On appeal, Suzor hypothesizes that if she had received the correct questionnaire, her counsel may have asked additional questions about Juror Schmidt’s familial relationship to an attorney and his prior experience with criminal proceedings. The transcript from voir dire shows Suzor’s counsel questioned Juror Schmidt during voir dire, learned about Juror Schmidt’s experience as a former police officer and his relationship with attorneys, and still passed the jury for cause. Ultimately, Juror Schmidt voted in Suzor’s favor. We see nothing in the record that indicates Suzor’s material rights were prejudiced, and we therefore conclude the District Court did not abuse its discretion in denying Suzor’s motion for a new trial. ¶37 4. Is the jury’s award of no damages supported by sufficient evidence? ¶38 Suzor also claims she is entitled to a new trial because the jury’s verdict was not justified by sufficient evidence, citing § 25-11-102(6), MCA. Suzor reasons that the jury’s verdict finding breach of duty without damages is inconsistent with uncontroverted evidence that she suffered great pain while awaiting surgery. ¶39 Defendants argue the jury’s verdict is supported by testimony from Suzor and her doctor about her decision to postpone surgery in the hope her hip would heal naturally. Defendants maintain that it was reasonable for the jury to conclude that, even if Suzor’s initial claim was wrongfully denied, Suzor suffered no damages attributable to the denial because Suzor’s decision to postpone surgery was made of her own accord. ¶40 We will affirm a jury verdict if it is supported by substantial credible evidence. D.R. Four Beat Alliance, LLC v. Sierra Prod. Co., 2009 MT 319, ¶ 23, 352 Mont. 435, 17 218 P.3d 827. Even if the supporting evidence is inherently weak or contradicted by other evidence, it will be considered substantial if a reasonable mind could find it adequate to support a conclusion. D.R. Four Beat Alliance, ¶ 23 (citing Tinker v. Mont. State Fund, 2009 MT 218, ¶ 36, 351 Mont. 305, 211 P.3d 194). Moreover, we will review evidence in the light most favorable to the prevailing party. Ele v. Ehnes, 2003 MT 131, ¶ 25, 316 Mont. 69, 68 P.3d 835 (citing Magart v. Schank, 2000 MT 279, ¶ 4, 302 Mont. 151, 13 P.3d 390). “It is not our function to agree or disagree with the jury’s verdict and, consequently, if conflicting evidence exists, we do not retry the case because the jury chose to believe one party over the other.” Ele, ¶ 25 (internal quotation marks omitted). Thus, we will not overturn a jury verdict as unsupported by the evidence unless there is a complete absence of any credible evidence to support it. Stubblefield, ¶ 18 (citing Papich v. Quality Life Concepts, Inc., 2004 MT 116, ¶ 29, 321 Mont. 156, 91 P.3d 553). Reversal is rarely warranted under this strict standard. Magart, ¶ 4. ¶41 The District Court relied on Ele in denying Suzor’s request for a new trial on damages. In Ele, we affirmed a district court’s denial of a new trial on damages because the testimony at trial contradicted the plaintiff’s claim that he was injured in an automobile accident, despite the defendant’s admitted negligence. That testimony established that the plaintiff had preexisting injuries that could have been the cause of his claimed pain and suffering. Furthermore, his coworkers testified that he was still able to engage in activities his claimed injury would have prevented. In short, the jury’s zero-damages award reflected the plaintiff’s failure to prove the accident caused damages. 18 ¶42 Suzor attempts to distinguish Ele and analogize her case to Reis v. Luckett, 2015 MT 337, 381 Mont. 490, 362 P.3d 632. Reis also involved an automobile accident where the defendant was admittedly negligent, but unlike Ele, it was undisputed in Reis that the injuries to the plaintiff’s hand were caused by the accident. Thus, we concluded that the record lacked substantial credible evidence to support the jury’s zero-damages award. Reis mirrors earlier cases in which we determined a new trial on damages was appropriate. See Renville v. Taylor, 2000 MT 217, 301 Mont. 99, 7 P.3d 400; Thompson v. City of Bozeman, 284 Mont. 440, 945 P.2d 48 (1997). In each of these cases, it was established by either uncontroverted evidence or the jury’s verdict that the defendants caused the plaintiffs’ damages. See Reis, ¶ 7; Renville, ¶ 25; Thompson, 284 Mont. at 446-47, 945 P.2d at 52. ¶43 Suzor’s claim is clearly more analogous to Ele than Reis, Renville, and Thompson. As previously discussed, the jury was presented with adequate evidence to support a finding that Suzor’s pain and suffering resulted from her own reluctance to undergo surgery. Moreover, Suzor admitted that she had not missed any treatment due to the initial denial. Unlike Reis, Renville, and Thompson, the jury heard evidence that contradicted Suzor’s claim that the Appellees’ breach was the cause of her damages. Because the record is not devoid of evidence supporting the jury’s verdict, we will not displace it. ¶44 5. Did the District Court abuse its discretion in its award of attorney’s fees? ¶45 A district court must award reasonable expenses and attorney’s fees to a party who files a motion to compel discovery that is subsequently granted, subject to several 19 exceptions. M. R. Civ. P. 37(a)(5)(A). The same rule requires an award of expenses and fees if the requested discovery is turned over after the filing of a motion to compel, whether or not the District Court has ruled on the motion. The award contemplated by M. R. Civ. P. 37(a)(5)(A) is limited to the expenses and fees incurred in making the motion to compel. If the motion to compel is granted in part and denied in part, M. R. Civ. P. 37(a)(5)(C) allows a district court to apportion the expenses associated with the motion as it sees fit. ¶46 The reasonableness of attorney’s fees must be determined from the facts of each case. Plath, ¶ 36. In Swenson v. Janke, 274 Mont. 354, 908 P.2d 678 (1995), we listed several non-exclusive factors to guide a court’s determination of reasonableness. Although a district court’s determination of reasonable attorney’s fees is discretionary, if the record lacks evidence of the factors the district court considered, we cannot effectively review the court’s decision. Plath, ¶ 39. We explained: [I]n contested cases we are inclined to follow those states requiring the introduction of proof from which a reasonable fee may be determined. To award a fee in such a case without proof would be to disregard the fundamental rules of evidence. An award of fees, like any other award, must be based on competent evidence. Plath, ¶ 39 (internal quotation marks omitted) (alteration and emphasis in original). ¶47 Suzor objects to the District Court’s decision to deduct 320 minutes from the recorded time she submitted for reimbursement pursuant to M. R. Civ. P. 37(a)(5)(A). Suzor argues that those 320 minutes were spent working to compel discovery of financial information relevant to a potential award of punitive damages—information that the District Court ultimately ordered the Appellees to produce. However, the District Court 20 noted those 320 minutes were recorded past the date of the Court’s April 17, 2015, order granting in part and denying in part Suzor’s motion to compel discovery. Critically, the April 17 order denied without prejudice Suzor’s request for the financial information because discovery of the information was premature. ¶48 Once the District Court issued its order denying the financial discovery, Suzor was no longer entitled under M. R. Civ. P. 37(a)(5)(A) to reimbursement for the time her attorney spent seeking the financial information. Instead, the District Court’s partial grant and partial denial of the motion invoked M. R. Civ. P. 37(a)(5)(C), which allowed the District Court to apportion the costs of the motion as it saw fit. The fact that the District Court eventually ordered the production of the information nearly a year after the April 17 order does not change the application of M. R. Civ. P. 37(a)(5)(C) to the time Suzor’s attorney spent making the motion. Thus, we conclude that the District Court was free to apportion expenses and fees as it saw fit, and it did not abuse its discretion in denying Suzor the 320 minutes of attorney’s fees. ¶49 Suzor also takes issue with the District Court’s decision to calculate the attorney’s fees at a $225 per hour rate. Counsel for Suzor submitted an affidavit to support his calculation of attorney’s fees. Although that affidavit recites the Swenson factors, it does not apply them to the facts of the case or support them with evidence, nor does it explicitly state the hourly rate for its calculation of fees. Working backwards, the unstated hourly rate applied in the affidavit is $250 per hour. Suzor complains that Appellees’ counsel never submitted an affidavit to support their suggested rate of $200 per hour. Instead, Appellees’ counsel noted in their brief opposing Suzor’s calculation 21 that he was paid only $200 per hour. On the basis of this briefing, the District Court chose to split the difference between the parties’ proffered rates. ¶50 Suzor’s argument for her hourly rate elevates form over function. Ideally, Appellees’ counsel would have filed a separate affidavit stating the basis for the $200 per hour rate. By the same token, Suzor’s counsel ideally would have applied the Swenson factors to the facts of this case, rather than merely reciting them in his affidavit. Under the facts of this case, we see little value in requiring Appellees’ counsel to restate his hourly rate in an affidavit. The District Court had an adequate understanding of the character and importance of the litigation, the professional skill and experience called for, the attorneys’ character, and the results secured by the services of the attorneys. This baseline understanding, combined with the hourly rates submitted by counsel for both parties, provided a sufficient basis for the District Court to determine a reasonable rate. We therefore conclude the District Court did not abuse its discretion in determining a reasonable award of attorney’s fees. CONCLUSION ¶51 For the reasons stated above, we affirm the jury’s verdict and the District Court’s orders now on appeal. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JIM RICE /S/ LAURIE McKINNON	December 27, 2016
b9974756-fadb-4393-8ad3-c784e80b8047	State v. Shepp	2016 MT 306	DA 15-0498	Montana	Montana Supreme Court	DA 15-0498 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 306 STATE OF MONTANA, Plaintiff and Appellee, v. CARL R. SHEPP, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-First Judicial District, In and For the County of Ravalli, Cause No. DC 15-104 Honorable Jeffrey H. Langton, Presiding Judge COUNSEL OF RECORD: For Appellant: Dwight J. Schulte, Schulte Law Firm, P.C., Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Anne Sherwood, Legal Intern, Helena, Montana Bill Fulbright, Ravalli County Attorney, Bill Lower, Deputy County Attorney, Hamilton, Montana Submitted on Briefs: October 12, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 15-0498 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 Carl R. Shepp appeals an order of the Twenty-First Judicial District Court, Ravalli County, denying his motion to suppress the results of a blood test that led to his conviction for Driving Under the Influence (DUI). We address the following issue: Whether or not the District Court erred by denying Shepp’s motion to suppress the results of his blood test. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On September 19, 2014, Ravalli County Deputy Sheriff Gordy Jessop pulled Shepp over after observing Shepp fail to signal a turn. Deputy Jessop asked Shepp if he had been drinking, and Shepp responded that he had “five or six beers” before driving. Deputy Jessop conducted a series of field sobriety tests and asked Shepp to consent to a preliminary breath test. Shepp refused. Deputy Jessop then asked Shepp to consent to a blood test at Marcus Daly Memorial Hospital in Hamilton. After several minutes of indecision, Shepp stated: “Sure, I’ll take the blood test.” Deputy Jessop helped Shepp into his patrol car and explained the blood test procedure, to which Shepp responded: “Yes, sir.” ¶4 When he arrived at the hospital, Shepp was given a “Patient Consent and Financial Agreement” (Patient Consent Form) to sign. The Patient Consent Form provided: “I consent to the treatment and procedures to be performed in connection with my inpatient, outpatient and/or emergency medical treatment at Marcus Daly Memorial Hospital . . . .” After Shepp studied the Patient Consent Form for several minutes without signing it, 3 Deputy Jessop took it from him and signed on the signature line. Seconds later, Shepp’s blood was drawn. Shepp did not verbally or physically resist the blood test. ¶5 On September 19, 2014, the State charged Shepp in the Ravalli County Justice Court with DUI in violation of § 61-8-401, MCA. Shepp filed a motion to suppress the results of his blood test, which the Justice Court denied. Shepp then pled guilty, reserving his right to appeal the Justice Court’s denial of his motion to suppress. On May 14, 2015, Shepp filed a notice of appeal in the District Court. On June 18, 2015, Shepp filed a motion to suppress, asking the District Court to suppress the results of his blood test and dismiss the case. On July 13, 2015, the District Court held a suppression hearing, during which both Shepp and Deputy Jessop testified. On July 20, 2015, the District Court issued an order denying Shepp’s motion to suppress. Shepp appeals that decision. STANDARDS OF REVIEW ¶6 An appeal from a justice court that is not a court of record “must be tried anew in the district court on the papers filed in the justice’s . . . court unless the [district] court, for good cause shown and on terms that are just, allows other or amended pleadings to be filed in the action.” Section 25-33-301(1), MCA. Additionally, “[e]ach party has the benefit of all legal objections made in the justice’s . . . court.” Section 25-33-301(1), MCA. Thus, the parties’ justice court filings are subsumed into the district court record. In all other ways, the district court acts as a trial court—rather than an intermediate appellate court—and we review its decision applying the same standards that we would to any other district court decision. Compare § 25-33-301(2), MCA (“When the action is 4 tried anew on appeal, the trial must be conducted in all respects as other trials in the district court.”) (applying to appeals from justice courts that are not courts of record), with State v. Hodge, 2014 MT 308, ¶ 11, 377 Mont. 123, 339 P.3d 8 (“In an appeal from a justice court established as a court of record, the district court functions as an intermediate appellate court and, as such, is confined to review of the record and questions of law.”). ¶7 We review a district court’s grant or denial of a motion to suppress “to determine whether the court’s findings of fact are clearly erroneous and whether the court correctly interpreted and applied the law to those facts.” State v. Wagner, 2013 MT 159, ¶ 9, 370 Mont. 381, 303 P.3d 285. “A factual finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if our review of the record convinces us that the court made a mistake.” State v. Brave, 2016 MT 178, ¶ 6, 384 Mont. 169, 376 P.3d 139. DISCUSSION ¶8 Whether or not the District Court erred by denying Shepp’s motion to suppress the results of his blood test. ¶9 Shepp concedes that he verbally consented to a blood test at the scene of the stop but contends he withdrew his consent by not signing the Patient Consent Form. “We have held that certain uncooperative actions by the motorist may comprise a refusal. A refusal to take a blood test does not have to be express but may be implied . . . .” Wessell v. State, 277 Mont. 234, 239, 921 P.2d 264, 266 (1996) (citing Johnson v. Division of Motor Vehicles, 219 Mont. 310, 711 P.2d 815 (1985) (holding that a defendant impliedly 5 refused to take a breath test by continuing to ask for an attorney to be present before the test)); see Hunter v. State, 264 Mont. 84, 869 P.2d 787 (1994) (holding that a defendant impliedly refused to take a breath test because she was capable of completing the test but gave a deficient performance). Shepp contends that the facts of this case are analogous to the facts of Hunter and Johnson. The District Court rejected this argument, holding that Shepp gave express verbal consent to a blood test and never withdrew that consent. ¶10 In reaching its decision, the District Court found: “Shepp admitted he never informed Deputy Jessop or hospital personnel that he had changed his mind and withdrawn his consent, nor did he give any verbal indication that he refused consent.” This finding also is supported by Shepp’s testimony at the July 13, 2015 suppression hearing, from which the District Court further found that Shepp gave contradictory testimony regarding whether he intended to revoke his consent to a blood test: initially, Shepp testified that he changed his mind about consenting to the blood test, but then testified that he could not decide whether to sign the Patient Consent Form because he was not sure how best to protect himself. The District Court determined that Shepp’s latter testimony was more credible. We repeatedly have held that “[i]t is not this Court’s function, on appeal, to reweigh conflicting evidence or substitute our evaluation of the evidence for that of the district court.” State v. Deines, 2009 MT 179, ¶ 20, 351 Mont. 1, 208 P.3d 857 (quoting State v. Gittens, 2008 MT 55, ¶ 27, 341 Mont. 450, 178 P.3d 91). Rather, “[w]e defer to the district court in cases involving conflicting testimony because we recognize that the court had the benefit of observing the demeanor of witnesses and rendering a determination of the credibility of those witnesses.” Deines, ¶ 20 (quoting 6 Gittens, ¶ 27). The District Court thus properly weighed the credibility of Shepp’s testimony, and we will not disturb its finding on appeal. ¶11 Finally, the District Court found that the Patient Consent Form has no bearing on consent under Montana’s DUI law. The District Court found that the Patient Consent Form is “an agreement between the hospital and its patients that encompasses issues regarding treatment, services, and payment.” We agree with the District Court’s assessment, and note that Shepp has not pointed to any evidence to contradict this finding. The District Court’s factual findings are not clearly erroneous, and the District Court correctly interpreted and applied the law to those facts. See Wagner, ¶ 9. CONCLUSION ¶12 The District Court’s order denying Shepp’s motion to suppress the results of his blood test is affirmed. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT	November 29, 2016
ba06daca-5c0a-40d5-b7b5-1b591dc17bbc	Crabtree v. Czech	2016 MT 326N	DA 16-0184	Montana	Montana Supreme Court	DA 16-0184 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 326N BARTLEY JOHN CRABTREE, Plaintiff and Appellee, v. JOSH CZECH, Defendant and Appellant. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADV-15-966 Honorable Greg Pinski, Presiding Judge COUNSEL OF RECORD: For Appellant: Steven T. Potts, Attorney at Law, Great Falls, Montana For Appellee: Bartley John Crabtree (Self-Represented), Great Falls, Montana Submitted on Briefs: November 2, 2016 Decided: December 13, 2016 Filed: __________________________________________ Clerk 12/13/2016 Case Number: DA 16-0184 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Josh Czech (Czech) appeals from the District Court Findings of Fact, Conclusions of Law, and Order, which reversed the Justice Court decision in favor of Czech and remanded with instructions to enter judgment in favor of John Crabtree (Crabtree). We reverse. ¶3 In 2014, Crabtree, a construction contractor, employed Czech as a sub-contractor laborer and advanced him money during his employment. Czech did not make any payments on his debt to Crabtree. Czech acknowledged that he borrowed money from Crabtree, but contended that his debt was offset by a $2,000 finder’s fee Crabtree had agreed to pay him for helping Crabtree to secure a construction project. He also claimed that Crabtree owed him an additional $786.31 in wages and materials. ¶4 On March 25, 2015, Crabtree filed a complaint against Czech, alleging that Czech was indebted to him the sum of $2,434 plus costs. A trial was held in the Cascade County Justice Court and, on October 21, 2015, the court entered its judgment, finding that Crabtree had failed to meet his burden of proof and awarding judgment to Czech. On November 17, 2015, Crabtree filed a timely appeal to the District Court, pursuant to 3 § 25-33-102, MCA.1 The parties did not request a hearing. On February 19, 2015, the District Court entered its Findings of Fact, Conclusions of Law, and Order Reversing Justice Court Decision. Czech filed a timely appeal to this Court. ¶5 The Cascade County Justice Court is a court of record authorized by § 3-10-101(5), MCA.2 “In an appeal from a justice court established as a court of record, the district court functions as an intermediate appellate court and, as such, is confined to review of the record and questions of law.” State v. Hodge, 2014 MT 308, ¶ 11, 377 Mont. 123, 339 P.3d 8 (citing §§ 3-5-303, 3-10-115, MCA; State v. Luke, 2014 MT 22, ¶ 9, 373 Mont. 398, 321 P.3d 70). Under § 3-10-115(3), MCA, “[t]he district court may affirm, reverse, or amend any appealed order or judgment and may direct the proper order or judgment to be entered or direct that a new trial or further proceeding be had in the court from which the appeal was taken.” ¶6 We have previously held that a district court is not in a position to make findings of fact or discretionary trial court rulings when it is acting in its appellate capacity. Stanley v. Lemire, 2006 MT 304, ¶ 25, 334 Mont. 489, 148 P.3d 643. Rather, the district court’s power to review justice court decisions is provided by Montana’s statutory law and, accordingly, is “confined to review of the record and questions of law.” Section 3-10-115(1), MCA. A district court acting within its appellate capacity must review 1 Section 25-33-102, MCA, provides that “[a]ny party dissatisfied with the judgment rendered in a civil action in a city or justice’s court may appeal therefrom to the district court of the county at any time within 30 days after the rendition of the judgment.” 2 Under § 3-10-101(5), MCA, “[a] county may establish the justice’s court as a court of record. If the justice’s court is established as a court of record, it must be known as a ‘justice’s court of record’ and, in addition to the provisions of this chapter, is also subject to the provisions of 3-10-115 and 3-10-116.” 4 factual findings under the clearly erroneous standard, discretionary rulings for abuse of discretion, and both legal conclusions and mixed questions of law and fact under the de novo standard. Stanley, ¶ 25. “Our ultimate determination is whether the district court, in its review of the trial court’s decision, reached the correct conclusions under the appropriate standards of review.” Stanley, ¶ 26. ¶7 On appeal, Czech argues that the District Court erred in entering its factual findings. We agree. In this case, the District Court attempted to exercise original jurisdiction in this matter by conducting its own review of the Justice Court record3 and entering its own findings of fact. However, as a court limited to appellate jurisdiction, the District Court may not make findings of fact when reviewing a justice court’s decision. Therefore, we conclude that the District Court committed reversible error by failing to review the Justice Court’s judgment in accordance with Montana law. We further find that the District Court erred in entering its conclusions of law based on the factual findings it entered in error. Once again, the District Court’s limited role as an appellate court in this case precluded it from doing anything other than reviewing de novo any legal conclusions and mixed questions of law and fact decided by the Justice Court. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear 3 Under § 3-10-115(2), MCA, the justice court’s record on appeal to district court need only consist of “an electronic recording or stenographic transcription of a case tried, together with all papers filed in the action.” 5 application of applicable standards of review. The District Court’s interpretation and application of the law was incorrect. ¶9 Reversed and remanded to the District Court for further proceedings in accordance herewith. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE	December 13, 2016
2782e187-2008-4442-aef2-0bab9a877618	GETTER v BECKMAN	N/A	88-454	Montana	Montana Supreme Court	IN THE SIJPREME COURT OF THE STATE OF MOFTANA WILLIAM R. GETTER, Trustee for GETTER TRUCKING, LNC., PROFIT SHARING PLAN, Plaintiff and Respondent, -vs- MARTIN J. RECKMAN and EARLENE H. BECKMAN, et al. Defendants and Appellants. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner, Judqe presiding. COl.JNSEL OF RECORD : For Appellant: Martin J. Beckman and Earlene H. Reckman, pro se, Billings, Montana For Respondent: Mark S. Werner; McNamer & Thompson, Rillings, Montana Submitted on Briefs* Jan. 5, 1989 Decided: March 7, 1989 d , P - ' Clerk Mr. Justice William E. Hunt, Sr., deli-vered the 0pln;on of the Court. The defendants, Martin J. Reckman and Earlene H. Beckman, appeal the decision by the District Court of the Thirteenth Judicial District, Yellowstone County, granting the plaj ntiff Is motion for partial summary judgment to quiet title to the property which is the subiect matter of this case and to eject the defendants from the propertl7. We affirm the District Court. The following substantive issues are raised on appeal. 1. Whether the District Court erred in grantinu plaintiff's motion for partial summary judgment to quiet title to the property which is the subject matter of this case and to eject the defendants from the property. 2. Whether the defendants had a right to a jury trial in a quiet title action. On March 29, 1979, after following statutory procedures, the United States Internal Revenue Service (IRS) seized Martin and Earlene Beckman's property to satisfy the Beckmans' unpaid federal income taxes. Notices of a sealed bid sale of the property was issued on April 26, 1979. Upon opening the sealed bids on June 20, 1979, the IRS sold the property to Getter, the high bidder. After passage of the 120-day redemption period, a deed for the property was issued by the IRS to Getter. The deed was recorded on November 21, 1-973. Beginning in 1977, the Beckmans filed a number of federal lawsuits, alleging that their tax was improperly assessed, the Sixteenth Amendment of the United States Constitution was invalid, and that their property was wronqfully seized. In each case, the United States District Court for the District of Montana dismissed the case in part because it lacked subject matter jurisdiction. The Ninth Circuit for the United States Court of Appeals affirmed each of the District Court's rulings. In August, 1985, after the United States District Court granted Getter's motion to quash the lis pendens filed by the Beckmans, Getter filed a motion for partial summary judgment against Beckmans in the District Court of the Thirteenth Judicial District to quiet title to the disputed property and for other additional relief. On January 7, 1987, the District Court granted Getter's motion for partial summary judgment. More specifically, the court quieted title to the property in Getter in fee simple absolute; permanently enjoined the Beckmans from asserting any claim adverse to Getter's ownership; declared that Getter is entitled to possession of the property and ejected the Beckmans; and ordered all lis pendens and other claims to title to the property filed or recorded in Yellowstone County by the Beckmans to be expunged from the files and records. The Beckmans appeal this order, raising the following substantive issues on appeal. The first issue raised on appeal is whether the District Court erred in granting plaintiff's motion for partial summarv judgment to quiet title to the property which is the subject matter of this case and to eject the defendants from the property. The party presenting the motion for summary judgment, Getter, has the initial burden of showing the lack of any genuine issue of material fact and that he is entitled to judgment as a matter of law. Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287. The District Court determined that Getter met this burden, therefore the burden shifted to the party opposing the motion, the Reckmans, to show that a genuine issue of fact does exist. Gamble Robinson Co., 212 Mont. a t . 312, 688 P.2d - - at 287. The District Court found that the Beckmans failed in meeting their burden and therefore granted Getter's motion for partial summary judqment regarding the property in question. We affirm the District Court. In defending against Getter's quiet title action, the Beckmans argue that the IRS used powers not enumerated in the lJni-ted States Constitution and that the IRS's procedures are invalid because the IRS code is based upon the Sixteenth Amendment to the United States Constitution which was fraudulently verified. The Beckmans asserted this same or similar argument in a series of actions they filed between 1977 and 1982 before the United States District Court and the Ninth Circuit. Each time the United States District Court. dismissed the Beckmans' claims in part for lack of subject matter jurisdiction and each time the Ninth Circuit affirmed the dismissal. In these actions, the courts held that the Beckmans' complaint is a claim for a tax refund and that under 26 U.S.C. S 7422(a) (1982) they lack jurisdiction over the matter until the Beckmans first exhaust their administrative remedies. - See, e.g.,. Beckman v. I.R.S., 48 A.F.T.R.2d (P-H) 81-5138 (1981), aff'd, No. 81-3468 (9th Cir. July 13, 1982); Beckman v. Getter Trucking, Inc., No. 82-263 (D. Mont. Feb. 15, 1984), aff'd, No. 84-3701 (9th Cir. Dec. 26, 1984). This federal statute, 26 U.S.C. S 7422(a), upon which the federal courts relied upon provides that No suit or proceeding shall be maintained in 9 court for the recovery of any internal revenue tax alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has heen duly filed with the Secret-ary, - , # -.L " ' I . according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof (emphasis added). Like the federal courts, Montana courts also do not have jurisdiction to determine whether the Beckmans were entitled to a refund and therefore whether their property was improperly seized to pay for the delinquent taxes in light of their allegations of the invalidity of the Sixteenth Amendment of the United States Constitution. Montana courts, however, do have the jurisdiction to quiet title to property located in Montana. Sections 70-28-101 through -1-13, MCA, address actions to quiet title to real estate generally and S S 15-18-411 through -413, MCA, specifically address actions to quiet title to a tax deed. The Beckmans' property was seized in 1979, and after approximately ten years the title to this property is still not quieted. The Beckmans' consistent failure to seek the proper administrative remedies to settle the initial issue of whether they are entitled to a tax refund and therefore whether their property was improperly seized in light of their allegations of the invalidity of the Sixteenth Amendment does not prevent this Court from affirming the District Court's order quieting title to the property i . n question. While this Court does not ha-ve subject matter jurisdiction over the original issues, this Court is nonetheless required under Rule 202(d)(l), M.R.Evid., to take judicial notice of federal statutes. The applicable federal statute in this case is 26 U.S.C. S 6532 (a) (1982) . In particular, this statute provides that No suit or proceeding under section 7422(a) for the recovery of any internal revenue tax, penalty, or other sum, shall be begun . . . after the expiration of 2 years from the date of mailing by certified mail or registered mail by the Secretary to the taxpayer of a notice of the disallowance of the part of the claim to which the suit or proceeding relates. Federal district courts have strictly construed this statute of limit.ations, recognizing that such a statute relinquishes the United States' sovereign immunity and therefore is considered jurisdictional and not subject to extensions. - See Starkey v. United States (W.D. Ark. 1986), 635 F.Supp. 1007, 1009; Wyker v. Willingham (N.D. Ala. 19441, 55 F.Supp. 105, 106. A notice of the tax deficiency was sent to the Beckmans by certified mail on May 6, 1976. The two year statute of limitations bars the Beckmans from now bringing an administrative suit for a refund of taxes even if they chose, after over ten years, to seek the proper venue to bring their complaint. In the earlier federal cases, those courts dismissed the Beckmans' suits because they had not first sought administrative relief, so that the federal courts had no jurisdiction. Whatever effect these federal cases may have, if any, as to res judicata, it is clear that the action in the state district court is bound by the statute of limitations. Accordingly, by taking judicial notice of 3 6 U.S.C. S 6532(a), we determine to affirm the District Court's order quieting title to the property in question. The Beckmans do not present any facts nor do they offer any legitimate contentions as to why this Court should not affirm the District Court's order. We therefore affirm the District Court's order granting Getter's motion for partial summary judgment quietina title to the property in question, ejecting the Beckmans from the property, and granting other such relief as requested. The second issue raised on appeal is whether the Beckmans are entitled to a jury trial in a quiet title action. The Beckmans assert that the District Court violated their Seventh Amendment rights bv not granting them a jury trial in this quiet title action. We disagree. In McGuiness v. Maynard (1983), 202 Mont. 484, 658 P.2d 1104, this Court held that actions to quiet title are actions in equity. Ln equity actions, a district court may impanel an advisory jury hut is not required to do so. McGuiness, 202 Mont. at 490, 658 P.2d at 1107. Therefore, contrary to what the Reckmans argue, they are not entitled to a trial by iury in this action. Affirmed. A	March 7, 1989
cbf6bd17-4935-4c06-8d4a-898c7c1e341c	Matter of N.W. YINC	2016 MT 320N	DA 16-0049	Montana	Montana Supreme Court	DA 16-0049 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 320N IN THE MATTER OF: N.W., A Youth in Need of Care. APPEAL FROM: District Court of the Third Judicial District, In and For the County of Anaconda-Deer Lodge, Cause No. DN 13-12 Honorable Ray Dayton, Presiding Judge COUNSEL OF RECORD: For Appellant: Shannon Hathaway, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Ben Krakowka, Deer Lodge County Attorney, Ellen Donohoe, Deputy County Attorney, Anaconda, Montana Submitted on Briefs: October 5, 2016 Decided: December 6, 2016 Filed: __________________________________________ Clerk 12/06/2016 Case Number: DA 16-0049 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Biological father, W.W. (Father), appeals from a December 2015 order of the Third Judicial District Court, Deer Lodge County, terminating his parental rights to N.W. We affirm. ¶3 On August 8, 2013, the Montana Department of Health and Human Services, Child and Family Services Division (CFS), received a report alleging that N.W., a newborn, was in danger of being abused and/or neglected as her biological mother, P.J. (Mother), had medical and mental health issues that were not being properly addressed. On August 14, 2013, CFS received another report regarding N.W. after an incident at the Pintler Medical Clinic in Anaconda, Montana. Clinic staff called law enforcement after Father’s threatening behavior made the staff concerned for the safety of Mother and N.W. CFS subsequently removed N.W. from parental care and placed N.W. in out-of-home foster care with N.W.’s maternal grandparents. On August 19, 2013, the Department of Public Health and Human Services (Department) filed a Petition for Emergency Protective Services, Adjudication as Youth in Need of Care and Granting Temporary Custody. On September 6, 2013, the District Court adjudicated N.W. a youth in need of care, and temporary legal custody was granted to the Department. 3 ¶4 On October 2, 2013, the District Court held a hearing and approved a Treatment Plan for Father. At a hearing in March 2014, the District Court expressed concerns that Father appeared to be “going through the motions,” regarding his obligations under the Treatment Plan, and noted that it appeared Father did not believe he needed to change. Subsequently, Father stipulated to a new Treatment Plan in April 2014. This cycle would occur once more in the following year. After the same concerns were raised before the District Court at a hearing in October 2014, Father once again stipulated to a new Treatment Plan. ¶5 In March 2015, CFS filed a Petition for Termination of Parental Rights and Permanent Legal Custody with Right to Consent to Adoption. In April 2015, Mother voluntarily relinquished her parental rights to N.W. The District Court held a hearing in July 2015 to determine whether to terminate Father’s parental rights. During the hearing, CFS presented extensive evidence, including testimony from Dr. Susan Day, a licensed clinical psychologist who evaluated Father on two separate occasions, Dr. Bowman Smelko, a licensed clinical psychologist who evaluated Father in January 2015, Renee Riley-Finnegan, a mental health therapist who had worked with Father from March 2014 until February 2015, and Colleen McGuire, an employee of the Anaconda Family Resource Center who supervised visits between N.W. and Father and Mother from January 2014 until February 2015. All four witnesses called by the Department expressed significant concerns regarding Father’s behavior and ability to care for N.W. Also, Grace Schapansky, a CFS Child Protection Specialist, testified that Father did not successfully complete any of his three Treatment Plans. Following the conclusion of the 4 hearing, the District Court determined that Father’s conduct and condition rendered him unfit to parent N.W. The District Court found that continuation of the parent-child legal relationship between N.W. and Father was likely to result in continued abuse and/or neglect. The District Court determined that CFS had undertaken reasonable efforts towards reunification and/or preservation of the family unit. Finally, the Court determined that it was in the best interest of N.W. to terminate the parental rights of Father and award permanent legal custody to CFS with authority to consent to N.W.’s adoption or guardianship. ¶6 “A court’s decision to terminate a parent’s legal rights to a child is not a decision made lightly.” In re M.N., J.N., Jr., and R.N., 2011 MT 245, ¶ 14, 362 Mont. 186, 261 P.3d 1047 (citation omitted). “We will presume that a district court’s decision is correct and will not disturb it on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion.” In re M.N., J.N., Jr., and R.N., ¶ 14 (citation omitted). “The right to parent is a fundamental liberty interest and an order terminating the right must be supported by clear and convincing evidence.” In re M.N., J.N., Jr., and R.N., ¶ 14 (citation omitted). However, the best interests of the child are of paramount concern and take precedence over parental rights. In re M.N., J.N., Jr., and R.N., ¶ 14. ¶7 Father argues that the District Court violated his constitutional right to parent his child and abused its discretion when it terminated his parental rights because the State did not meet its burden of establishing that it used reasonable efforts to reunify the family or that the treatment plan given to Father was appropriate. 5 ¶8 We conclude that the District Court’s decision was supported by the applicable law and by ample, clear, and convincing evidence in the record. In making this determination, we note that the Department made considerable efforts attempting to reunify the family, and even if we were to determine that certain elements in Father’s Treatment Plan were unwarranted, he still failed to complete the remaining and unchallenged tasks. Therefore, we conclude that the District Court did not err in terminating Father’s parental rights to N.W. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of this Court, this case presents a question controlled by settled law. ¶10 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ BETH BAKER /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT	December 6, 2016
d9f04546-7415-4567-af2b-a56a9672f1e6	Citizens For A Better Flathead v. Flathead County Commissioners	2016 MT 325	DA 15-0582	Montana	Montana Supreme Court	DA 15-0582 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 325 CITIZENS FOR A BETTER FLATHEAD, a Montana non-profit public benefit corporation and SHARON DeMEESTER, Plaintiffs, Appellees and Cross-Appellants, v. BOARD OF COUNTY COMMISSIONERS OF FLATHEAD COUNTY, a political subdivision of the State of Montana and the governing body of the County of Flathead, acting by and through James R. Dupont, Pamela Holmquist and Dale W. Lauman, Defendant and Appellant. and MARILYN NOONAN, RICK MYERS, ERIC WUTKE, HUMANE SOCIETY OF NORTHWEST MONTANA, SKYLINK FIBER COMMUNICATIONS, LLC and JUMP INVESTMENTS, Intervenors Below. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-2012-010 Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Alan F. McCormick, Garlington, Lohn & Robinson, PLLP, Missoula, Montana 12/13/2016 Case Number: DA 15-0582 2 For Appellees: Roger M. Sullivan, Ethan Welder, McGarvey, Heberling, Sullivan & Lacey, P.C., Kalispell, Montana For Intervenors: Noah H. Bodman, Tami E. Fisher, Fisher & Bodman, PC, Kalispell, Montana Submitted on Briefs: June 29, 2016 Decided: December 13, 2016 Filed: /S/ ED SMITH Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 The Board of County Commissioners of Flathead County (Commissioners or Commission) appeal from the order of the Eleventh Judicial District Court, Flathead County, granting summary judgment to Appellees and Cross-Appellants Citizens for a Better Flathead and Sharon DeMeester (collectively Citizens), who had challenged zoning actions taken by the Commission. Due to uncertainty over the scope of relief granted by the District Court’s order, Citizens has cross-appealed from any partial denial of the relief it sought. We affirm in part and reverse in part. ¶2 We consider the following issues: 1. Did the District Court err by holding that the Map Amendment was invalid for failing to comply with statutory requirements? 2. Did the District Court err by failing to invalidate the Text Amendment for violating statutory obligations and public participation requirements? 3. Did the District Court err by granting attorneys’ fees to Citizens? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Two zoning actions are at issue in this proceeding. First, by Resolution No. 955 HL, the Commission enacted an amendment to the Flathead County Zoning Regulations (FCZR) that created a new zoning classification, called the General Business Highway Greenbelt, or B-2HG. This is known as the “Text Amendment.” Second, by Resolution No. 837 BX, the Commission approved an “on-the-ground” zoning change, applying the new B-2HG classification to particular property bordering Highway 93, north of Kalispell. This is known as the “Map Amendment.” 4 ¶4 Following the adoption of the Flathead County Growth Policy (Growth Policy)1 in 2007, owners of property lying north of Kalispell on Highway 93 approached the Flathead County Planning and Zoning Office (Planning Office) about changing the zoning of their properties from a combination of Agricultural (AG) and Suburban Agriculture (SAG) classifications to General Business (B-2). The Flathead County planning staff explained that such a change would not be feasible because (1) there was uncertainty regarding such changes due to the Growth Policy’s lack of guidance in that area of the County; and (2) the B-2 zoning classification had substantial differences from both the AG and SAG classifications. ¶5 Several years later, in 2010, owners of property on Highway 93, north of Kalispell, proposed the creation of a mitigated commercial zone for use on major highways corridors in Flathead County. Labeled B-2HG, this highway greenbelt category would permit many of the same uses as in B-2, General Business, but also establish conditional uses that would require approval from the Planning Office, as well as mitigation measures to alleviate the impacts between AG/SAG zoning and B-2 zoning, such as setbacks, landscaping, signage requirements, tiered building heights arising from the highway, and additional lighting restrictions to minimize light intrusions on neighboring property. The proposed B-2HG district stated three categories of uses: (1) permitted uses (uses allowed without further review, including banks, barber shops, 1 A complete copy of the Growth Policy is not included in the record on appeal. The portion provided includes the Designated Land Uses Map, which depicts the state of zoning in Flathead County as of March 16, 2009. The map indicates the locations of agricultural, suburban agricultural, commercial, residential, and other zoning classifications across Flathead County. 5 bed and breakfast operations, hotels, and food stores with less than 5,000 square feet of gross floor area); (2) conditional uses (uses that are permissible but which require a public hearing, including bars and casinos, gas stations, funeral homes, farm equipment sales, supermarkets over 5,000 square feet, and others); and (3) administrative conditional uses (uses that require county review, but do not require a public hearing, including lumber yards, day care centers, boat sales, and rental service stores and yards). ¶6 Following consultation with the Planning Office, the landowners submitted an application for adoption of the Text Amendment to amend the zoning ordinances to create the B-2HG zoning district. The landowners also submitted a request for the Map Amendment to change the zoning of their particular properties, an area covering 63 acres, to B-2HG, if the Text Amendment was first approved. ¶7 The Planning Office staff prepared a report (Text Report) on the proposed Text Amendment. Citing Montana Code and FCZR, the Text Report stated that the proposed B-2HG classification would advance three parts of the Growth Policy: (1) “Provide ample commercial land designation to promote affordability” (Policy 6.3); (2) “Encourage small-scale, impact-mitigated and compatible commercial developments in accessible, developing rural areas with good access and away from urban areas” (Policy 7.3); and (3) “Identify existing areas that are suitable for impact-mitigated commercial uses” (Policy 7.4). The Text Report also addressed the statutory considerations required by § 76-2-203, MCA, including fire dangers; promotion of health, public safety, and general welfare; facilitating adequate provision of transportation, water, sewer, schools, parks, and other public requirements; compatibility 6 with urban growth in the area; the character of the district and its peculiar suitability for particular uses; and whether the proposed Text Amendment would be compatible with ordinances of the surrounding municipalities. ¶8 Specifically, the Text Report stated that Flathead County did not have a “building department” like the cities of Whitefish and Kalispell, but that the proposed amendment contained “additional criteria for the site development similar to criteria used by the cities” and gave consideration to the growth of nearby municipalities “because the text of the proposed amendment provides for standards that are similar to neighboring municipality’s standards for highway commercial standards.” The Text Report noted that although this particular zoning ordinance did not exist in area municipalities, similar municipal ordinances had been consulted for guidance, and that “[p]ortions of the proposed amendment were based upon regulations adopted by local municipalities.” ¶9 After notice, the Commission conducted a public hearing on May 17, 2011. Proponents and opponents of the Text Amendment offered public comment, after which Commissioner Holmquist stated she would take the comments under consideration. Commissioner Lauman said that “issues expressed . . . need [to be] addressed” and stated a “concern regarding which public roads would be affected.” Chairman Dupont asked the Planning Board to address the concerns raised. ¶10 On May 31, 2011, the Commissioners met to discuss changes to the proposed Text Amendment. Public comment was again taken and six citizens spoke in opposition. The Commissioners discussed potential locations where the B-2HG zone could be applied, but clarified that adopting the Text Amendment would not automatically zone any piece 7 of property, but only provide another “tool in the toolbox” for zoning. The Commissioners adopted changes to the Text Amendment that had been suggested in the multiple public workshops conducted by the Planning Board, and published notice of their intent to adopt the Text Amendment as amended. ¶11 On July 27, 2011, the Commission held its final hearing regarding the Text Amendment. It was reported that, during the statutory protest period, 881 protests to the Text Amendment were received, which was insufficient to legally block its adoption. Commissioner Holmquist said that she had read through all the protest letters, indicating that they included “inaccurate and scare tactic information” and that the “B2HG is not replacing B2 zoning, and it does not cover every road in the county; it is only on major arterial roads.” Commissioner Lauman said he “spent a lot of time” reading through the protests and petitions received, and expressed “concerns about the quality of information put out there [regarding the B-2HG Text Amendment].” He stated that he did “not see where B2HG zoning would impose anything on anyone that they can’t already do.” Chairman Dupont concurred, noting that “if [the B-2HG Text Amendment] passed today it would be an option for zoning that a property owner can choose from to further restrict development of their property.” The Commission unanimously adopted the Text Amendment. ¶12 On August 7, 2011, the landowners requested that their proposed Map Amendment be adopted by the Commission, which would change the zoning of their property from SAG to the newly created B-2HG zone. The Planning Office’s report (Map Report) analyzed whether the Map Amendment substantially complied with the 8 Growth Policy and met the requirements of § 76-2-203, MCA. The Map Report noted six policies in the Growth Policy that “may be relevant”: (1) “Provide ample commercial land designation to promote affordability” (Policy 6.3); (2) “Require traffic impact analysis for all major commercial projects on major highways and arterials” (Policy 6.4); (3) “Conserve resources and minimize transportation demand by encouraging redevelopment and infill of existing commercial areas” (Policy 6.5); (4) “Encourage small-scale, impact-mitigated and compatible commercial developments in accessible, developing rural areas with good access and away from urban areas” (Policy 7.3); (5) “Identify existing areas that are suitable for impact-mitigated commercial uses” (Policy 7.4); and (6) “Encourage commercial development that is visually and functionally desirable” (Policy 7.5). The Map Report generally concluded that these policies would be furthered by zoning the land in question as B-2HG, but noted that the proposed zoning change would not provide infill. The Map Report also noted two problems that required “careful Planning Board and Commission consideration”: (1) the lack of specific guidance regarding the Highway 93 area, because there was no neighborhood plan or future use map; and (2) the potential lack of compatible growth with nearby municipalities. The Planning Board voted to approve the Map Amendment. After review, the Commission made several changes to the Map Amendment and unanimously adopted it on February 14, 2012. ¶13 Citizens initiated this action, challenging the Commission’s adoption of both the Text Amendment and the Map Amendment. Both sides moved for summary judgment. The District Court held that “the map amendments along with the zone change on the 9 land in question are voided” for failing to substantially comply with the Flathead County Growth Policy; that the Commissioners’ actions in rezoning the 63 acres constituted illegal spot zoning; and that Citizens were entitled to an award of attorney fees and costs. STANDARDS OF REVIEW ¶14 We review a district court’s grant of summary judgment de novo, applying the same criteria as the district court. Siebken v. Voderberg, 2012 MT 291, ¶ 16, 367 Mont. 344, 291 P.3d 572; N. 93 Neighbors, Inc. v. Bd. of Cnty. Comm’rs, 2006 MT 132, ¶ 17, 332 Mont. 327, 137 P.3d 557. A de novo review is one that is “anew” from beginning to end. White Sulphur Springs v. Voise, 136 Mont. 1, 5, 343 P.2d 855, 857 (1959). ¶15 Amendment of a zoning designation constitutes a legislative act. Section 7-1-104, MCA; Schanz v. City of Billings, 182 Mont. 328, 335, 597 P.2d 67, 71 (1979); N. 93 Neighbors, ¶ 18; Lake County First v. Polson City Council, 2009 MT 322, ¶ 37, 352 Mont. 489, 218 P.3d 816. We presume legislative acts are valid and reasonable, Lake County First, ¶ 37; Schanz, 182 Mont. at 335, 597 P.2d at 71, and review only for an abuse of discretion. N. 93 Neighbors, ¶ 18; Lake County First, ¶ 37. A district court abuses its discretion if it acted “arbitrarily without the employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice.” State v. Sage, 2010 MT 156, ¶ 21, 357 Mont. 99, 235 P.3d 1284. A district court may also abuse its discretion if it bases its decision on information “so lacking in fact and foundation that it is clearly unreasonable.” Lake County First, ¶ 34 (internal quotations omitted) (citing N. 93 Neighbors, ¶ 44; Schanz, 182 Mont. at 335–36, 597 P.2d at 71). 10 DISCUSSION ¶16 1. Did the District Court err by holding that the Map Amendment was invalid for failing to comply with statutory requirements? ¶17 The Commission argues that the District Court’s determination that the Map Amendment failed to substantially comply with the County’s Growth Policy was based upon factual errors, incorrect legal conclusions, and a failure to consider whether the Commission’s decision was supported with an adequate record and analysis. Citizens answer that the record “unequivocally demonstrates” that the Commission failed to even consider, let alone “be guided by,” important elements of the Growth Policy. ¶18 When adopting zoning regulations, “the board of county commissioners shall consider”: (a) reasonable provision of adequate light and air; (b) the effect on motorized and nonmotorized transportation systems; (c) compatible urban growth in the vicinity of cities and towns that at a minimum must include the areas around municipalities; (d) the character of the district and its peculiar suitability for particular uses; and (e) conserving the value of buildings and encouraging the most appropriate use of land throughout the jurisdictional area. Section 76-2-203(2), MCA (emphasis added). In addition to “considering” the “compatible urban growth in the vicinity of cities and towns,” § 76-2-203(2)(c), MCA, any zoning adopted by the county “must, as nearly as possible, be made compatible with the zoning ordinances of nearby municipalities.” Section 76-2-203(3), MCA. ¶19 County zoning regulations must also be “made in accordance with the growth policy.” Section 76-2-203(1)(a), MCA; see also § 76-1-605(1), MCA (governing bodies “must be guided by and give consideration to the general policy and pattern of 11 development set out in the growth policy” when adopting zoning ordinances or resolutions). However, a growth policy “is not a regulatory document and does not confer any authority to regulate that is not otherwise specifically authorized by law or regulations adopted pursuant to the law,” nor may a governing body “withhold, deny, or impose conditions on any land use approval or other authority to act based solely on compliance with a growth policy.” Section 76-1-605(2), MCA. We have explained that these statutes, in sum, require zoning to be in “substantial compliance” with the growth policy. Heffernan v. Missoula City Council, 2011 MT 91, ¶ 79, 360 Mont. 207, 255 P.3d 80; Citizen Advocates for a Livable Missoula, Inc. v. City Council, 2006 MT 47, ¶ 23, 331 Mont. 269, 130 P.3d 1259; Ash Grove Cement Co. v. Jefferson Cnty., 283 Mont. 486, 495-96, 943 P.2d 85, 91 (1997); Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs, 2016 MT 256, ¶¶ 25-31, ___ Mont. ___, ___ P.3d ___ (finding numerous public meetings and no inhibition of public comment, though in only one primary city, did not create “substantial non-compliance with the growth policy” requirement that meetings must be held “throughout Flathead County”). ¶20 “Substantial compliance” does not mean that zoning must be “consistent with every goal and objective expressed in the growth plan documents,” because this would mean “strict” or “rigid” compliance, as with a regulatory requirement. Heffernan, ¶ 78 (citing Citizen Advocates for a Livable Missoula, Inc., ¶ 30); Little v. Bd. of Cnty. Comm’rs, 193 Mont. 334, 353, 631 P.2d 1282, 1293 (1981) (“To require strict compliance with the master plan would result in a master plan so unworkable that it would have to be constantly changed to comply with the realities. The master plan is, 12 after all, a plan.”). “All facets of the proposed land use must be considered to determine whether, taken together, they comply not strictly, but substantially with the goals, objectives, and recommendations in the growth policy.” Heffernan, ¶ 78 (emphasis omitted). A governing body “must develop a record that fleshes out all pertinent facts upon which its decision was based in order to facilitate judicial review. For purposes of evaluating ‘substantial compliance,’ that includes all pertinent elements of the growth policy.” Heffernan, ¶ 87 (internal citations omitted). ¶21 In Heffernan, we held that the Missoula City Council had insufficiently evaluated the pertinent elements of the growth policy when approving a zoning change. There, the Missoula City Council had “simply not addressed” or “addressed but in conclusory fashion” many of the goals and recommendations from the growth policy at issue. Heffernan, ¶ 85. We reach similar conclusions here regarding the Growth Policy at issue. ¶22 The Planning Office’s Map Report indicated that six out of fifty policies in the Growth Policy may be relevant to the proposed Map Amendment. Largely missing from the Map Report, and from the Commission’s analysis, was a consideration of possible conflicts between the proposed B-2HG zoning and the Growth Policy, and other pertinent factors raised by the Growth Policy. ¶23 First, the Map Report stated that Policy 6.3—“Provide ample commercial land designation to promote affordability”—was furthered by zoning this area B-2HG because “[h]ighway corridors provide opportunities for relatively inexpensive land in areas of high accessibility and visibility.” However, this general statement overlooked the 13 potential conflict posed by the proposed zoning change in this subject area, as raised by the commentary to Chapter 2 of the Growth Policy, addressing strip developments: All but one of the seven elements of the public’s vision for the future of the county outlined in Chapter 1 are directly impacted by the manner in which commercial land is developed. County residents regularly comment on the need to prevent “strip development” from dominating the rural landscape between business centers. . . . It is not a common remark that no development should take place, just that a certain type of development should be avoided. (Emphasis added.) As noted by the District Court, this issue was raised by the planning staff of both Kalispell and Whitefish, expressing concern that the amendment “will allow strip development to expand beyond the already existing strip development, contrary to the long range planning for both Kalispell and Whitefish.” While the Map Report noted that the B-2HG zone would “utilize[] standards for the site development similar to standards used by the cities to mitigate impacts of strip development,” consideration was not given to whether re-zoning this property along the highway would either limit or enhance the kind of development disfavored by the Growth Policy. Although this concern, by itself, may be insufficient to invalidate the Map Amendment, see Heffernan, ¶ 78, this issue, identified by the Growth Policy as an important development concern, was not properly considered. ¶24 Second, traffic considerations were only cursorily addressed. The Commission identified one policy that required traffic impact analysis for major commercial developments, and noted that the conditional uses in B-2HG zoning would require such an analysis. However, Chapter 6 of the Growth Policy provides many more traffic considerations. The policies encourage, among other goals, “[l]imit[ing] private 14 driveways from directly accessing arterials and collector roads,” “[p]romot[ing] coordinated and cooperative transportation planning with Kalispell, Columbia Falls, Whitefish and Montana Departments of Transportation and the Department of Natural Resources and Conservation,” and “[r]estrict[ing] direct access from private properties onto the Montana State highways.” There is no evidence indicating that Flathead County consulted the Montana Department of Transportation for guidance on development along Highway 93, and the Map Amendment analysis did not address how the newly allowed uses, such as banks, food stores, hotels, churches, etc.—not conditional uses—would impact traffic as the property directly abutting Highway 93 was developed. These goals concerning a critical object of planning—traffic and traffic safety—were not properly considered. ¶25 Further, little attention was given to the requirement that the County consider “compatible urban growth in the vicinity of cities and towns,” § 76-2-203(2)(c), MCA, and that county zoning “must, as nearly as possible, be made compatible with the zoning ordinances of nearby municipalities.” Section 76-2-203(3), MCA. Flathead County’s Designated Land Uses Map designated the area of the proposed Map Amendment as SAG. While the parties dispute the Designated Land Uses Map’s authority and significance, it was nonetheless consistent with Kalispell’s Growth Policy, which similarly designated the same area as Suburban Residential. Kalispell’s interest in this area was heightened because, as the District Court stated, “[t]he land under question is across from and immediately north of land which has already been annexed into Kalispell, so it is very reasonable to assume that Kalispell will grow in that direction and 15 annex this land.” The Map Report noted this and explained that “the proposed map amendment is not compatible with the City of Kalispell’s planning for the subject properties. If the proposed map amendment was approved and then the properties petitioned to annex into the city, the zoning would not be in compliance with [Kalispell’s] Growth Policy.” The Map Report offered that consideration had been given to Kalispell’s Growth Policy and to compatible urban growth because “some standards for site development similar in nature to mechanisms in use by the City of Kalispell” would be employed in the new zone. However, citation to similar site development standards does not contemplate the larger issue that the County’s new zone may result in development that is inconsistent with planned and potentially imminent Kalispell growth. We recognize that § 76-2-203(3), MCA, requires only that county zoning be “compatible with zoning Ordinances of nearby municipalities,” not city growth policies. (Emphasis added.) Further, the County’s argument that the District Court erred by holding that “the map amendment and zone must statutorily comply with existing municipal zoning” is well taken. (Emphasis added.) The District Court here erroneously overstated the obligation of the County, and Kalispell does not exercise a “veto power” over the County’s zoning. However, in view of clear conflict between the proposed Map Amendment and the stated growth purposes expressed in Kalispell’s growth plan for property that was immediately adjacent to the city, it was incumbent on the County to more broadly consider this issue and assess the impact of the proposed Map Amendment on Kalispell’s growth plans. As Citizens’ briefing states, “[w]hile some tension [between county zoning and city planning] is perhaps inevitable, open conflict is unnecessary.” 16 ¶26 The proposed application of the B-2HG zone to the 63 acres in question, directly abutting a Montana State highway, would have permitted banks, retail shops, and other businesses along the highway, clearly impacting traffic, posing a potential for further strip development, and potentially conflicting with planned growth in close proximity to Kalispell. However, the County’s consideration only cursorily addressed commercial growth goals in the Growth Policy, did not address potential conflicts over disfavored development, only briefly addressed traffic and traffic safety concerns, and failed to assess the possible conflict with planned city growth. While the County does not need to address every aspect of the Growth Policy in detail, it must give sufficient consideration to the policies that raise pertinent and significant concerns. For these reasons, we conclude the Commission abused its discretion in implementing the Map Amendment. We do not reach the issues of whether the Map Amendment constituted spot zoning or was enacted in violation of public participation requirements. We affirm the District Court’s ruling invalidating the Map Amendment. ¶27 2. Did the District Court err by failing to invalidate the Text Amendment for violating statutory obligations and public participation requirements? ¶28 As an initial matter, Citizens and Commissioners dispute the scope of the District Court’s order and the relief granted. Commissioners argue that the District Court’s “ruling voided only the Commissioners’ map amendment.” Acknowledging the possibility of this interpretation of the District Court’s order, Citizens cross-appealed to preserve its challenge to the Text Amendment, arguing that “[i]nherent in the District 17 Court’s decision is its grant of Citizens requested relief, overturning both the map and text amendments.” (Emphasis in original.) ¶29 The Commissioners clearly took two separate zoning actions, passing two different zoning resolutions. Citizens challenged both actions, and the parties briefed both actions before the District Court. In its order, the District Court began its analysis by stating that Citizens requested both zoning actions be declared void, but added “the Court will focus primarily on the map amendment and zone change and the errors and deficiencies therein.” The District Court then engaged in several legal analyses, concluding each time that only the Map Amendment and the associated zone change on the subject property were void, commonly employing such language: “It is clear the Commissioners decision to re-zone the land is unsustainable. Clearly, the map amendment and zone change for the land in question does not comply with the growth policy, constitutes spot zoning, was an abuse of discretion and must be voided.” (Emphasis added.) Then, in the “ORDER” section of its decision, the District Court stated: Plaintiffs’ Motion for Summary Judgment that the act of the Commissioners of Flathead County was an abuse of discretion is granted and the map amendments along with the zone change imposed on the land in question are voided. Here, the reference to actions for which relief is granted is singular (“Plaintiffs’ Motion for Summary Judgment that the act of the Commissioners . . . is granted” (emphasis added)) and, in that regard, the order mentions only the Map Amendment and the corresponding zone change “on the land,” not the Text Amendment. 18 ¶30 The District Court made two statements that could implicate the Text Amendment. In what seems to be a passing observation, the District Court stated that the Text Amendment’s “lack of comprehensive consideration [of neighborhood plans which encompass a major transportation corridor] is contrary to the Growth Policy which places great importance on existing neighborhood plans.” By itself, this is insufficient to invalidate the Text Amendment, absent a determination that the Text Amendment was not in “substantial compliance” with the County’s Growth Policy. Heffernan, ¶ 79. Then, near the beginning of its order, the District Court stated that “[t]he result of the County adopting the text, map and zone amendments which are inconsistent with other controlling documents is that the Commissioners’ acts were an abuse of discretion.” This statement immediately follows a recitation of Citizens’ argument on this issue and precedes any analysis by the District Court. That particular section of the order concludes that only the Map Amendment was flawed. A review of the entire section yields ambiguity about the District Court’s intention with regard to the Text Amendment. ¶31 It is, at least, poor procedure for a legislative act to be judicially invalidated by way of an order that is ambiguous as to that intent. Further, because, as discussed herein, the proper standards were not applied by the District Court to determine the Text Amendment’s validity, we conclude that the District Court’s order was not sufficient to invalidate the Text Amendment in addition to the Map Amendment. However, because the issue was raised and briefed in the District Court, and because Citizens has cross-appealed any denial of its challenge to the Text Amendment, we undertake review of its validity. Wurl v. Polson Sch. Dist. No. 23, 2006 MT 8, ¶¶ 28–29, 330 Mont. 282, 19 127 P.3d 436 (undertaking review of arguments not ruled on by the district court based on summary judgment standard of review); Chapman v. Maxwell, 2014 MT 35, ¶ 12, 374 Mont. 12, 322 P.3d 1029 (“Our de novo standard of review of summary judgment decisions allows us to review the record and make our own determinations regarding the existence of disputed issues of fact and entitlement to judgment as a matter of law.”). Text Amendments Generally ¶32 Although our jurisprudence includes many cases involving zoning changes made “on the ground” through map amendments,2 planned unit developments,3 and other methods,4 we have not previously addressed the legal standards applicable to enactment of a “text amendment,” as referred to by the parties here, that makes no actual zoning changes on the ground. However, there is a significant, nationwide body of law regarding such enactments, a type of zoning commonly referred to as “floating zones.” We here assess this national jurisprudence and its application in Montana law. ¶33 “Unlike traditional zoning by mapped districts, a floating zone establishes a use classification in the zoning ordinance when adopted by a legislative body but the classification is not delineated on the zoning map until after a rezoning process initiated by a property owner.” 3 Arden H. Rathkopf & Daren A. Rathkopf, Rathkopf’s The Law of Zoning and Planning § 45:1, at 45-2 (2016) [hereinafter The Law of Zoning and 2 E.g., Little, 193 Mont. at 336-39, 631 P.2d at 1284-85 (map amendment from unzoned to commercial); Heffernan, ¶¶ 15-17 (map amendment to allow higher density residential). 3 E.g., Bridger Canyon Prop. Owners’ Ass’n v. Planning & Zoning Comm’n, 270 Mont. 160, 162, 890 P.2d 1268, 1269 (1995) (planned unit development with six zoning changes). 4 E.g., Citizen Advocates for a Livable Missoula, Inc., ¶¶ 7-8 (creation of a special district, which amends the text and applies the zoning on a specific location, so both a combined text and map amendment); Helena Sand & Gravel Inc. v. Lewis & Clark Cnty. Planning & Zoning Comm’n, 2012 MT 272, ¶ 7, 367 Mont. 130, 290 P.3d 691 (creation of a special district). 20 Planning]; accord Kristine Cordier Karnezis, Annotation, Zoning: Regulations Creating and Placing “Floating Zones”, 80 A.L.R.3d 95, § 1a (2016); 2 Patrick H. Rohan & Eric Damian Kelly, Zoning and Land Use Controls § 13.01, at 13-3 (2016); 1 Patricia E. Salkin, American Law of Zoning § 9:80 (5th ed. 2016); Daniel R. Mandelker, Land Use Law § 6:63 (4th ed. 1997); Bellemeade Co. v. Priddle, 503 S.W.2d 734, 738 (Ky. 1973); Bigenho v. Montgomery Cnty. Council, 237 A.2d 53, 56-57 (Md. 1968); Cnty. Council of Prince George’s Cnty. v. Zimmer Dev. Co., 120 A.3d 677, 691-93 (Md. 2015) [hereinafter Prince George’s Cnty.]; Campion v. Bd. of Aldermen of the City of New Haven, 899 A.2d 542, 552-54 (Conn. 2006) (citing Sheridan v. Planning Bd. of the City of Stamford, 266 A.2d 396, 404-05 (Conn. 1969)). ¶34 Floating zones are implemented through a two-step process. Karnezis, supra, § 3. First, the “local zoning authority establishes in its zoning ordinance a specific zoning classification for a specific purpose or a class of purposes, but does not assign on the zoning map the classification to any property.” Prince George’s Cnty., 120 A.3d at 692; accord Zoning and Land Use Controls, supra, § 13.01, at 13-3. After enacted by the local municipality, this zone is said to “float” above the jurisdiction until a request is made for the zone to be applied to a particular piece of property. Bellemeade Co., 503 S.W.2d at 738; Bigenho, 237 A.2d at 56. The second step occurs when a landowner requests rezoning (a map amendment) to apply the floating zone to his or her property. Prince George’s Cnty., 120 A.3d at 692; Karnezis, supra, § 3. Then, the governing body “considers the recommendation of the zoning agency, holds a public hearing, and either approves or rejects the developer’s rezoning request.” The Law of Zoning and Planning, 21 supra, § 45:2, at 45-6 to 45-7; accord Zoning and Land Use Controls, supra, § 13.02, at 13-8; Prince George’s Cnty., 120 A.3d at 692 (“To rezone a property to a floating zone, the zoning authority must find generally that the legislative prerequisites for the zone are met and the rezoning is compatible with the surrounding neighborhood.”). This two-step process was followed by Flathead County in this case.5 ¶35 Float zoning was developed in response to “Euclidian zoning” permitted by the United States Supreme Court in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114 (1926). The Law of Zoning and Planning, supra, § 45:1, at 45-2. Euclidian zoning “(1) divides a municipality into specific zones or districts; (2) assigns the uses of land within the districts, excluding certain uses from certain districts; and (3) establishes height, width, setback, and other measurement or structural restrictions applicable within each district.” Zoning and Land Use Controls, supra, § 13.01, at 13-2 to 13-3. The purpose of float zoning is to provide more flexibility in municipal zoning. Zoning and Land Use Controls, supra, § 13.01, at 13-3 to 13-4 (noting the use of floating zones “where new or specialized uses are contemplated but cannot be specifically located at the time the districts are originally drawn”); The Law of Zoning and Planning, § 45:1, at 45-3; Prince George’s Cnty., 120 A.3d at 691 (“Floating zones . . . are a local legislative response to the relative rigidity of Euclidian zoning and occupy the opposite end of the 5 Another definition of float zoning is “a two-step zoning technique whereby a municipality first creates a particular use district in its zoning regulations so that the zone is said to ‘float’ over the entire municipality until at some future time, in a second step, the municipality amends its zoning regulations and map to locate, or ‘settle,’ the zone on a particular parcel of land. The first step makes the floating zone available and the second step places it on the land by a rezoning action, ordinarily at the request of an individual property owner.” Karnezis, supra, § 1a. 22 flexibility continuum of zoning categories from Euclidian zones.”); Zoning and Land Use Controls, supra, § 13.01, at 13-5 (“One of the most logical uses for a floating zone is to create the predictability of a set of written rules for a type of development that does not yet exist in the community without tying that development to a specific site.”); American Law of Zoning, § 9:80, at 9-255 (“The floating zone is widely employed to create cluster developments, planned developments of various kinds, and planned unit developments.” (internal footnotes omitted)). ¶36 Although it did not use the phrase “floating zone,” the New York Court of Appeals was the first court to address that concept, in Rodgers v. Village of Tarrytown, 96 N.E.2d 731 (N.Y. 1951). The Village of Tarrytown enacted two, separate zoning ordinances. First, in 1947, Tarrytown enacted an ordinance that created “[a] new district or class of zone to be called ‘Residence B-B,’” but provided no boundaries for where the zone would apply. Rodgers, 96 N.E.2d at 732 (internal punctuation omitted). Rather, it stated that boundaries would be “fixed by amendment of the official village building zone map, at such times in the future as such district or class of zone is applied, to properties in this village.” Rodgers, 96 N.E.2d at 732. The ordinance also contained standards required in the new zoning classification pertaining to lot size, building height, setbacks, and other specifications. Rodgers, 96 N.E.2d at 732-33. Then, in 1948, a landowner approached the Village seeking to rezone her land to the Residence B-B zoning category created the year prior. Rodgers, 96 N.E.2d at 733. The Village approved the map amendment and another landowner brought suit challenging both ordinances. Rodgers, 96 N.E.2d at 733. 23 ¶37 The Court of Appeals first addressed the map amendment ordinance that rezoned the land to the new Residence B-B zoning category, holding that this “on the ground” rezoning was within the municipality’s authority and that the action furthered the municipality’s zoning, explaining: The mere circumstance that an owner possesses a ten-acre plot and submits plans conforming to the physical requirements prescribed by the 1947 amendment will not entitle him, ipso facto, to a Residence B-B classification. It will still be for the board to decide, in the exercise of a reasonable discretion, that the grant of such a classification accords with the comprehensive zoning plan and benefits the village as a whole. Rodgers, 96 N.E.2d at 734 (emphasis original). This holding was, in essence, a review to ensure the map amendment complied with what today is considered a comprehensive plan or growth policy. Secondly, the Court of Appeals addressed the initial text amendment ordinance, which had created the new zoning classification but had not applied it to any particular property in the jurisdiction. On that point it held: We turn finally to the contention that the 1947 ordinance is invalid because, in proclaiming a Residence B-B district, it set no boundaries for the new district and made no changes on the building zone map. The short answer is that, since the ordinance merely prescribed specifications for a new use district, there was no need for it to do either the one or the other. True, until boundaries are fixed and until zoning map changes are made, no new zone actually comes into being, and neither property nor the rights of any property owner are affected. But it was not the design of the board of trustees by that enactment to bring any additional zone into being or to affect any property or rights; the ordinance merely provided the mechanics pursuant to which property owners might in the future apply for the redistricting of their property. In sum, the 1947 amendment was merely the first step in a reasoned plan of rezoning, and specifically provided for further action on the part of the board. Rodgers, 96 N.E.2d at 735-36. 24 ¶38 Since Rodgers v. Village of Tarrytown, many states have addressed float zoning and have generally found it to be a legally valid and appropriate means of zoning. Zoning and Land Use Controls, supra, § 13.05 (noting New York, Maryland, Connecticut, Kentucky, California, Indiana, Michigan, Missouri, New Hampshire, Rhode Island, and Wisconsin); The Law of Zoning and Planning, supra, § 45:5 (adding Colorado, Delaware, Idaho, Massachusetts, Pennsylvania, and Washington).6 ¶39 In the case before us, the Commissioners took two, separate actions. First, they enacted a zoning regulation that created the B-2HG zoning classification within the FCZR, containing certain specifics regarding location, lot size, use, setback, building height, and others. This Text Amendment made no actual changes “on the ground” to any property, or to the zoning map. Rather, it was, in the words of the Commissioners, another “tool in the [zoning] toolbox.” Second, the Commissioners enacted a second ordinance that applied the new B-2HG zoning category to the property of the petitioners and to the zoning map. The first action, the Text Amendment, created a classic floating zone, and the second action, the Map Amendment, applied that floating zone to the map. As we have already determined, the Map Amendment was adopted in violation of the County’s statutory zoning obligations. 6 Float zoning has been disapproved only in a couple of court cases, see Rockhill v. Twp. of Chesterfield, 128 A.2d 473 (N.J. 1973); Eves v. Zoning Bd. of Adjustment, 164 A.2d 7 (Pa. 1960) (no longer controlling law in Pennsylvania, see Russell v. Penn. Twp. Planning Comm’n, 348 A.2d 499 (1975)), but those decisions “failed to influence later court decisions in other jurisdictions. State Court decisions that have ruled on the issue generally have approved of the floating zone device.” The Law of Zoning and Planning, supra, § 45:6, at 45-17 to 45-20. 25 ¶40 Turning to Montana law, our state’s zoning statutes generally provide for flexibility in zoning and readily encompass a county’s enactment of a floating zone, as Flathead County enacted here. Section 76-2-203, MCA, provides the substantive requirements for all zoning regulations enacted by a county, without distinguishing between text and map amendments. These provisions do not prohibit float zoning or otherwise require all zoning ordinances to apply to a particular property or location when enacted. Rather, the statutes require certain considerations and analyses to be undertaken, §§ 76-2-203(1)(b), (2), (3), MCA, and that zoning regulations be in accordance with the county’s growth policy. Section 76-2-203(1)(a), MCA. Procedurally, the same process is statutorily required for “the establishment or revision of boundaries for zoning districts and in the adoption or amendment of zoning regulations”—a broad description of the possible zoning actions that may be undertaken by a board of county commissioners. Section 76-2-205, MCA. ¶41 Additionally, floating zones are typically the method of implementation of a planned unit development (PUD). American Law of Zoning, § 9:80, at 9-255 (“The floating zone is widely employed to create . . . planned unit developments.”); Zoning and Land Use Controls, § 13.01, at 13-4 (“Most planned unit development . . . zones ‘float’ over the zoning map in the sense that it is rare to see a site pre-zoned for planned unit development without some sort of development plan attached to it.”). Localities in Montana routinely use PUDs in their zoning. See e.g., Kent v. City of Columbia Falls, 2015 MT 139, ¶ 3, 379 Mont. 190, 350 P.3d 9; Botz v. Bridger Canyon Planning & Zoning Comm’n, 2012 MT 262, ¶ 6, 367 Mont. 47, 289 P.3d 180; Grant Creek Heights, 26 Inc. v. Missoula Cnty., 2012 MT 177, ¶ 5, 366 Mont. 44, 285 P.3d 1046. “[P]lanned unit developments, like zoning amendments and variances, are normal land use regulation tools, their approvals are matters committed to the judgment of local officials, and they are used to further the welfare of the general public.” Kent, ¶ 68 (Baker, J., dissenting). Judicial Review of Text Amendments/Floating Zones ¶42 Generally, floating zones are given legislative deference and presumed valid. Zoning and Land Use Controls, supra, § 13.04, at 13-22 to 13-23; The Law of Zoning and Planning, supra, § 45:7, at 45-21. Likewise, legislative deference is given to municipal zoning actions under Montana law, and this Court only reviews for an abuse of discretion. Schanz, 182 Mont. at 335, 597 P.2d at 71 (“[A] zoning ordinance is a legislative enactment, and is entitled to the presumption of validity and reasonableness.” (original punctuation omitted)); N. 93 Neighbors, ¶ 18; Lake County First, ¶ 37. ¶43 However, zoning regulations, including text amendments or float zoning, must comply with governing statutes. Where a state has a requirement that all zoning regulations comply with the comprehensive plan, the floating zone must comply with that comprehensive plan. Zoning and Land Use Controls, supra, § 13.02, at 13-8 to 13-9; Karnezis, supra, § 5a; Rockville Crushed Stone, Inc. v. Montgomery Cnty., 552 A.2d 960, 970 (Md. 1988) (affirming a district court’s ruling that struck down application of a floating zone to an area for violating the comprehensive plan); Wheaton Moose Lodge No. 1775 v. Montgomery Cnty., 397 A.2d 250, 261-62 (Md. Ct. Spec. App. 1979) (affirming a district court’s ruling that denied designation of a floating zone to property in part because of incompatibility with the local comprehensive plan); Prince George’s 27 Cnty., 120 A.3d at 692; Lutz v. City of Longview, 520 P.2d 1374, 1379 (Wash. 1974) (holding floating zone as applied on the ground did not conflict with the comprehensive plan). Similarly, all zoning regulations in Montana, which would include floating zones, must comply with statutory requirements. Sections 76-2-203, 76-1-605, MCA. ¶44 While a text amendment or floating zone must likewise “substantially comply” with a growth policy, Heffernan, ¶ 79, and all other statutory requirements, the nature of a legal review of its validity is starkly different than for a map amendment, because no changes are made to actual property or to a location on a zoning map. Consequently, there is no specific factual context to evaluate whether a new zoning category, before applied to a particular location, substantially complies with the growth policy or is compatible with the zoning ordinances of “nearby municipalities.” These issues necessarily require a consideration of location. If a new commercial zoning category was proposed for an area that had a neighborhood plan calling for no further business development, the proposed category would, of course, fail to substantially comply. On the other hand, if a new commercial category was proposed for an area slated for business growth under the growth policy, it could very well substantially comply. The location is what permits this analysis to be undertaken. ¶45 The difference between challenging a text amendment and challenging a map amendment is analogous to the difference between a facial and as-applied challenge to a statute. See State v. Whalen, 2013 MT 26, ¶¶ 20-22, 368 Mont. 354, 295 P.3d 1055; Mont. Cannabis Indus. Ass’n v. State, 2016 MT 44, ¶ 14, 382 Mont. 256, 368 P.3d 1131. One examines the application of a statute as applied in the given set of circumstances (as 28 applied), while the other reviews the possible application of the statute in all circumstances (facial). Brady v. PPL Mont., Inc., 2008 MT 177, ¶ 13, 343 Mont. 405, 185 P.3d 330 (Gray, C.J., dissenting) (“Facial challenges, unlike as applied challenges, do not depend on the facts of a particular case.”); In re Marriage of K.E.V., 267 Mont. 323, 336, 883 P.2d 1246, 1255 (1994) (Trieweiler, J., concurring and dissenting) (“The difference is important. If a court holds a statute unconstitutional on its face, the state may not enforce it under any circumstances, unless an appropriate court narrows its application; in contrast, when a court holds a statute unconstitutional as applied to particular facts, the state may enforce the statute in different circumstances.” (emphasis in original)). Facial challenges require the litigant to show “no set of circumstances exists” where the statute would be valid, “i.e., that the law is unconstitutional in all its applications.” Mont. Cannabis Indus. Ass’n, ¶ 14 (internal quotations omitted) (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S. Ct. 1184, 1190 (2008). ¶46 Thus, in a legal challenge to a county text amendment or floating zone that makes no “on the ground” changes, the question is whether the new zoning category could satisfy statutory requirements anywhere in the county. Put another way, to invalidate an ordinance enacting only a text amendment, a court must conclude there is no place within the jurisdiction where the amendment could be implemented without violating statutory requirements. ¶47 Subsequently, when a map amendment is considered, the county would, of course, conduct the second review—based on the proposed location—to determine whether the 29 proposed zoning satisfied statutory requirements. A challenge to an approved map amendment is akin to an as-applied challenge of the zoning. Further, this is the stage where it is possible to evaluate whether the zoning constitutes spot zoning.7 Citizens’ Challenges to the Text Amendment ¶48 Citizens challenged the Text Amendment on the grounds that it (1) failed to substantially comply with the County Growth Policy, and violated other statutory obligations, and (2) that the Commissioners failed to satisfy public participation requirements. ¶49 The Text Amendment implemented by Flathead County made no actual zoning map changes in Flathead County. It created the possibility that property in Flathead County could be zoned to B-2HG if regulatory requirements were satisfied and the Growth Policy was substantially complied with in the location of its application. Facially, the B-2HG zone could appropriately be implemented in Flathead County if, for example, a landowner wished to change the zoning of his or her property from less restrictive to more restrictive by moving from B-2 to B-2HG. At a minimum, areas in Flathead County already zoned for commercial or business could be rezoned to B-2HG without violating the Growth Policy, as that would change those properties to a more restrictive zoning than currently zoned. The Designated Land Uses Map from the Growth Policy indicates the existence of such areas. We need not take this analysis 7 Because a text amendment does not change the zoning on a particular piece of land, it cannot constitute spot zoning. As we held in Little, the factors focus on the “area,” where the “use is to apply,” and the number of landowners actually affected. Little, 193 Mont. at 346, 631 P.2d at 1289. Because the analysis for spot zoning is location specific, a zoning change that makes no actual changes on a map cannot, by definition, be spot zoning. 30 further because a proper facial challenge to the Text Amendment was not actually made in this case; Citizens’ challenge was functionally an as-applied one, challenging the outcome of the new zoning as applied on the ground. In that challenge they have succeeded, obtaining a judicial invalidation of the Map Amendment. However, the Text Amendment remains valid. ¶50 Citizens also assert that the Commissioners violated both Montana law and Flathead County regulations regarding public participation in the process of adopting the Text Amendment. We note initially that it appears Citizens have conflated the more extensive statutory public participation requirements for adoption of growth policies, §§ 76-1-601 to -607, MCA; see generally Citizens for a Better Flathead, ¶¶ 32-49 (reviewing public participation process for growth policy amendment), with that required for zoning changes. Sections 76-2-201 to -205, MCA. Section 76-2-205(2), MCA, requires that, following notice of a public hearing on any proposed zoning, the “commissioners shall give the public an opportunity to be heard regarding the proposed zoning district and regulations.” There is no statutory requirement that public comment be further evaluated, as with adoption of growth policies. Section 76-1-603, MCA. Commissioners are here required to “review the proposals of the planning board and shall make any revisions or amendments that it determines to be proper.” Section 76-2-205(3), MCA. ¶51 Flathead County has enacted its own ordinance regarding public participation that applies more broadly. Resolution No. 2129 provides: 31 In accordance with the principles announced by the court in North 93 Neighbors v. Board of County Commissioners of Flathead County, prior to making a land use decision, the Board shall summarize the relevant public comment received on a particular action and shall explain how such comment factors into the decision. The scope and format of such summarization and explanation may vary as appropriate for the type of decision and extent of public comment. (Emphasis added.) Although North 93 Neighbors pertained to growth policies, not zoning, N. 93 Neighbors, ¶¶ 37-38, 45, on the basis of that case Flathead County laudably adopted a broader requirement that encompasses all land use decisions, including the present one, and that requires “summarization and explanation” by the Commission in response to the receipt of public comment. No specific requirement as to the form of this summary and explanation by the Commission is provided. ¶52 When the Text Amendment public hearing was held on May 17, 2011, public comment was received and the Commissioners orally responded with comments acknowledging the public input. Commissioner Holmquist stated she would take the comments under consideration and Commissioner Lauman stated that “issues expressed to them need [to be] addressed.” Commissioner Lauman also expressed “concern regarding which public roads would be affected,” a concern raised by the public comments. The Commissioners then unanimously voted to undertake further consideration of the Text Amendment and Chairman Dupont asked the Planning Board to address the concerns that had been raised. ¶53 On May 31, 2011, the Commissioners met again to discuss the proposed Text Amendment. The Commissioners responded to public concerns by explaining that the Text Amendment would not automatically zone any given property. They also made 32 multiple changes to the language of the Text Amendment that came out of public workshops conducted about the proposed ordinance. ¶54 On July 27, 2011, the Commissioners acknowledged receipt of 881 protest letters. Commissioner Holmquist stated that she had read through all the protest letters. Commissioner Lauman said he “spent a lot of time” reading protests and noted “concerns about the quality of information put out there [regarding the B-2HG Text Amendment].” Addressing concerns raised, Commissioner Lauman stated he did “not see where B2HG zoning would impose anything on anyone that they can’t already do.” Commissioner Holmquist, describing “inaccurate and scare tactic information” in the protest letters, stated that the “B2HG is not replacing B2 zoning, and it does not cover every road in the county; it is only on major arterial roads.” Finally, Chairman Dupont concurred with the other Commissioners, noting that “if [the B-2HG Text Amendment] passed today it would be an option for zoning that a property owner can choose from to further restrict development of their property.” The Commission then adopted the Text Amendment. ¶55 Our review of the record leads to the conclusion that the Commission satisfied the statutory obligation to permit the public to be heard and, further, satisfied the obligations of the Flathead County ordinance by summarizing the concerns raised and explaining its position in light of those concerns. The Commission incorporated changes to the proposed Text Amendment in response to some comments. As such, the Text Amendment is not invalid for failure to comply with public participation requirements. 33 ¶56 3. Did the District Court err by granting attorneys’ fees to Citizens? ¶57 The District Court awarded attorneys’ fees as both mandamus relief and under the Uniform Declaratory Judgment Act (UDJA), reasoning that award of attorneys’ fees based on the claims made by Citizens were on “solid footing.” However, we disagree. ¶58 A writ of mandate is issued “to compel the performance of an act that the law specially enjoins as a duty resulting from an office, trust, or station.” Section 27-26-102, MCA. Writs of mandate are available where (1) “the party who applies for it is entitled to the performance of a clear legal duty by the party against whom the writ is sought”; and (2) “there is no speedy and adequate remedy available in the ordinary course of law.” Smith v. Cnty. of Missoula, 1999 MT 330, ¶ 28, 297 Mont. 368, 992 P.2d 834. ¶59 First, the clear legal duty “must involve a ministerial act, not a discretionary act.” Smith, ¶ 28; accord Jefferson Cnty. v. Dep’t of Envtl. Quality, 2011 MT 265, ¶¶ 21-22, 362 Mont. 311, 264 P.3d 715. To determine if an act is ministerial or discretionary, we have held: [W]here the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial, but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial. State ex rel. Sch. Dist. No. 29 v. Cooney, 102 Mont. 521, 529, 59 P.2d 48, 53 (1936); accord Smith, ¶ 28; Jefferson Cnty., ¶ 21. We have held that zoning is a legislative, not ministerial, act. N. 93 Neighbors, Inc., ¶ 18 (“Amending a growth policy or a zoning designation constitutes a legislative act.”); Liberty Cove, Inc. v. Missoula Cnty., 2009 MT 377, ¶ 12, 353 Mont. 286, 220 P.3d 617; Schanz, 182 Mont. at 335, 597 P.2d at 71 (“A 34 rezoning ordinance, like a zoning ordinance, is a legislative enactment.”). Thus, the actions of the Commission challenged here were not ministerial in nature. ¶60 Secondly, Citizens had a remedy at law. “Any person aggrieved by any decision of the commission or the board of county commissioners may, within 30 days after such decision or order, appeal to the district court in the county in which the property involved is located.” Section 76-2-110, MCA. Further, if Citizens were concerned about Flathead County implementing the Text Amendment or the Map Amendment, they could have sought preliminary injunctive relief pursuant to Title 27, chapter 19, MCA, pending judicial review of the ordinances. As such, mandamus was not an available remedy in this case and did not provide a basis for an award of attorneys’ fees. ¶61 Attorneys’ fees are also potentially available in declaratory actions. Section 27-8-313, MCA, of the UDJA provides that “[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper.” Accordingly, attorneys’ fees are available under the Montana UDJA when the district court, in its discretion, “deems such an award necessary or proper.” Trs. of Ind. Univ. v. Buxbaum, 2003 MT 97, ¶¶ 42, 46, 315 Mont. 210, 69 P.3d 663. However, as a threshold question, equitable considerations must support an award of attorneys’ fees. Mungas v. Great Falls Clinic, LLP, 2009 MT 426, ¶ 45, 354 Mont. 50, 221 P.3d 1230; United Nat’l Ins. Co. v. St. Paul Fire & Marine Ins. Co., 2009 MT 269, ¶ 38, 352 Mont. 105, 214 P.3d 1260; Hughes v. Ahlgren, 2011 MT 189, ¶ 13, 361 Mont. 319, 258 P.3d 439. The availability of attorneys’ fees is not “automatically presumed” and fees are not warranted in “garden variety” declaratory judgment actions, which would “eviscerate[]” the 35 American Rule. Mungas, ¶ 44; Mont. Immigrant Justice Alliance v. Bullock, 2016 MT 104, ¶ 48, 383 Mont. 318, 371 P.3d 430; W. Tradition P’ship v. Att’y Gen. of Mont., 2012 MT 271, ¶¶ 11-12, 367 Mont. 112, 291 P.3d 545. ¶62 Citizens sought a judicial declaration concerning the validity of the subject zoning ordinances. This action constituted a garden variety declaratory action brought by citizens that does not involve equitable considerations compelling a fee award. As such, the grant of fees under the UDJA was improper. CONCLUSION ¶63 The judgment of the District Court invalidating the Map Amendment is affirmed. We conclude that the District Court did not also invalidate the Text Amendment, and for the reasons set forth herein, that judgment, challenged on cross appeal, is also affirmed. The award of attorneys’ fees to Citizens is reversed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ LAURIE McKINNON	December 13, 2016
7a570827-0747-44fe-8ed5-411d58e41a85	State v. Coulter	2016 MT 303N	DA 15-0587	Montana	Montana Supreme Court	DA 15-0587 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 303N STATE OF MONTANA, Plaintiff and Appellee, v. FREDDIE COULTER III, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DC 14-24 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Freddie Coulter III (Self-Represented), Shelby, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Alex R. Nixon, Carbon County Attorney, Red Lodge, Montana Submitted on Briefs: October 26, 2016 Decided: November 22, 2016 Filed: __________________________________________ Clerk 11/22/2016 Case Number: DA 15-0587 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In June 2014 Freddie Coulter III was charged with one count of felony sexual assault and two counts of felony sexual abuse of children. The charges arose from a sexual encounter between Coulter, aged 21, and C.A., aged 11. In December 2014 Coulter entered into a plea agreement under which he pled guilty to sexual assault and the State dropped the two counts of sexual abuse of a child. In February 2015, and following a pre-sentencing investigation and receipt of the report, the Twenty-Second Judicial District Court, Carbon County, sentenced Coulter to 20 years in a prison designated by the Department of Corrections, with 10 years suspended. Parole eligibility was restricted to Coulter’s completion of Phase I and Phase II of a sexual offender treatment program. Additionally, Coulter was fined and subject to numerous conditions, restrictions, and limitations. ¶3 In August 2015 Coulter moved to withdraw his guilty plea alleging that he did not “knowingly” commit sexual assault because C.A. had represented to him, and to other men online, that she was over 18 years old. He further claimed that his counsel 3 “induced” him to take the plea deal by “misadvising” him on his ability to present a successful defense. ¶4 On September 8, 2015, the District Court issued its Order Denying Motion to Withdraw Guilty Plea, holding that Coulter had not established good cause as required under § 46-16-105(2), MCA.1 The court observed that Coulter mistakenly believed that in order to prove that he was guilty of sexual assault, the State had to prove that he knew C.A. was under 18 years of age at the time of sexual contact. The court pointed out that to prove sexual assault, the State need only establish that (1) the defendant knowingly subjected another person to sexual contact, and (2) the contact was without consent. The court explained that, under § 45-5-502(5)(a)(ii), MCA, a victim under the age of 14 is incapable of giving consent as a matter of law if the offender is 3 or more years older than the victim. The District Court held that when Coulter entered into his plea agreement, he expressly admitted to knowingly subjecting C.A. to sexual contact. He further admitted that the sexual contact occurred at a time when she was a minor and was more than 3 years younger than him. The court determined that arguments contrary to Coulter’s admissions were without merit and thus he failed to demonstrate good cause for withdrawing his guilty plea. ¶5 Turning to Coulter’s argument that his counsel “misadvised” him to accept the plea agreement, the District Court interpreted this as a claim of ineffective assistance of 1 Section 46-16-105(2), MCA, provides in relevant part: “At any time before judgment or, except when a claim of innocence is supported by evidence of a fundamental miscarriage of justice, within 1 year after judgment becomes final, the court may, for good cause shown, permit the plea of guilty or nolo contendere to be withdrawn and a plea of not guilty substituted.” 4 counsel (IAC). In reviewing Coulter’s claim, the District Court relied on State v. LeMay, 2011 MT 323, ¶ 52, 363 Mont. 172, 266 P.3d 1278, which provides that if “a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence demanded of attorneys in criminal cases.” The court concluded that Coulter’s claim was again based upon his own misinterpretation of the law: namely, his belief that he could not have committed the crime without knowledge of C.A.’s true age. ¶6 The court noted that counsel reviewed the elements of the crime and the potential penalties Coulter could face after trial and advised Coulter to accept the plea agreement. The District Court concluded that counsel’s performance fell within the acceptable range of competence and that Coulter presented no credible evidence that he was coerced or forced into pleading guilty. Based upon these conclusions, the District Court held that Coulter did not demonstrate good cause to withdraw his guilty plea on this ground. ¶7 Coulter maintains these arguments on appeal. The State urges us to affirm based upon the rationale of the District Court. We review a court’s denial of a motion to withdraw a guilty plea to determine if the court’s factual findings are clearly erroneous and if the court’s interpretation and application of the law are correct. State v. Hendrickson, 2014 MT 132, ¶ 12, 375 Mont. 136, 325 P.3d 694 (citations omitted). We review claims of IAC de novo. State v. Kougl, 2004 MT 243, ¶ 12, 323 Mont. 6, 97 P.3d 1095 (citations omitted). 5 ¶8 The record supports the District Court’s findings of fact and the correctness of its interpretation and application of the applicable law. The State did not have the burden of proving that Coulter knew C.A. was a minor at the time of the sexual contact. The State had to establish that Coulter knowingly engaged in the sexual contact. It satisfied this burden when Coulter admitted to the contact. The State had the burden of proving that C.A. had not consented to the sexual contact. This was established by virtue of C.A.’s age under § 45-5-502(5)(a)(ii), MCA. Moreover, we agree that Coulter failed to establish that counsel’s performance was outside the acceptable range of competence or prejudiced his defense. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for noncitable memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law. The District Court’s findings of fact were supported by the record and its interpretation and application of the law were correct. ¶10 Affirm. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE	November 22, 2016
330ccc86-d270-413e-a222-4c18867ec828	State v. King	2016 MT 323	DA 14-0641	Montana	Montana Supreme Court	DA 14-0641 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 323 STATE OF MONTANA, Plaintiff and Appellee, v. JUSTIN DWAYNE KING, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 2013-564 Honorable Ed McLean, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Lisa S. Korchinski, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Patricia Bower, Deputy County Attorney, Missoula, Montana Submitted on Briefs: November 10, 2016 Decided: Filed: /S/ ED SMITH Clerk 12/13/2016 Case Number: DA 14-0641 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 The Fourth Judicial District Court, Missoula County, conducted a jury trial for misdemeanor Assault and felony Assault with a Weapon against Justin Dwayne King (King). The jury returned a verdict of guilty for felony Assault with a Weapon. King appeals, alleging that the District Court improperly instructed the jury on the affirmative defense of justifiable use of force. We affirm. ¶2 We address the following issue on appeal: Did the District Court properly instruct the jury on the affirmative defense of justifiable use of force, based on all the facts presented at trial? FACTUAL AND PROCEDURAL BACKGROUND ¶3 In the fall of 2013, David Colaprete (Colaprete) and his girlfriend Mozelle Stewart (Stewart) moved to a homeless camp under the Reserve Street Bridge in Missoula, Montana. Colaprete met King and invited him to camp with him and Stewart at their campsite. One day, Colaprete found food in their shared cooler and ate it, believing that it had been left behind by a friend who had recently moved. The food actually belonged to King, who began yelling at Colaprete and Stewart when he discovered his food had been eaten. The relationship between Colaprete, Stewart and King became strained after this incident. King became verbally abusive towards Stewart and continuously accused Colaprete and Stewart of taking his things. ¶4 On October 17, 2013, Colaprete left the campsite briefly and returned to find Stewart with a friend of King’s. Stewart was uncomfortable with the stranger’s presence in their camp. King was down by the river and Colaprete yelled down to him that he 3 needed to leave the campsite because it was not working out having him there. Colaprete and King began arguing and, when Colaprete finally turned around and began to walk away, King hit Colaprete repeatedly with a metal object. After hitting Colaprete several times with the object, King left the area. Colaprete called 911 and was taken by ambulance to a nearby hospital, where he received stitches and staples for his head injuries. ¶5 On October 18, 2013, King was stopped by the Missoula Police Department and arrested after he admitted to beating up a person with a pipe. He did not tell the officer that he was acting in self-defense. On November 5, 2013, the State filed an information charging King with felony Assault with a Weapon. King pled not guilty and filed notice of his intent to rely on the affirmative defense of justifiable use of force. At trial, he claimed that he attacked Colaprete with a metal rod because Colaprete had threatened him and he was afraid that Colaprete was about to attack him with a knife. He also testified that once the fight ensued, Colaprete grabbed him and wouldn’t let him leave the area. Colaprete, on the other hand, testified that he did not threaten King and that he returned to his tent to deescalate the situation. He also testified that he was not armed with a knife and did not recall grabbing at King during the attack. ¶6 On the first day of trial, the District Court settled jury instructions. Along with other jury instructions on justifiable use of force, the District Court gave Jury Instruction No. 23 (Instruction 23), which read as follows: You are instructed that a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. 4 The court also gave Jury Instruction No. 25(a) (Instruction 25(a)) on the use of force by an aggressor, which read as follows: The use of force in defense of a person is not available to a person who purposely or knowingly provokes the use of force against himself, unless such force is so great that he reasonably believes that he is in imminent danger of death or serious bodily harm and that he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause bodily harm to the assailant. King objected to this instruction, arguing that it misstated the law and that it contradicted Instruction No. 23 because the latter instruction created an obligation to retreat while the former instruction did not. The District Court overruled the objection and the jury returned a verdict of guilty on May 1, 2014. STANDARD OF REVIEW ¶7 We review a district court’s decisions regarding jury instructions for an abuse of discretion. State v. Lacey, 2012 MT 52, ¶ 15, 364 Mont. 291, 272 P.3d 1288. “The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case.” State v. Dunfee, 2005 MT 147, ¶ 20, 327 Mont. 335, 114 P.3d 217. DISCUSSION ¶8 Did the District Court properly instruct the jury on the affirmative defense of justifiable use of force, based on all the facts presented at trial? ¶9 King argues that the District Court abused its discretion when it gave Instruction 25(a) to the jury. He claims the instruction is inconsistent and contradictory to Instruction 23 and concerns a material issue in the case; namely, whether King had a duty 5 to retreat. The State contends that the court properly instructed the jury based upon the conflicting evidence King and the State presented at trial. We agree with the State. ¶10 This Court has held that “[t]he trial judge is under a duty to instruct the jury on every issue or theory finding support in the evidence, and this duty is discharged by giving instructions which accurately and correctly state the law applicable in a case.” State v. Erickson, 2014 MT 304, ¶ 35, 377 Mont. 84, 338 P.3d 598 (citing State v. Robbins, 1998 MT 297, ¶ 36, 292 Mont. 23, 971 P.2d 359, overruled on other grounds by State v. LaMere, 2000 MT 45, ¶¶ 25, 61, 298 Mont. 358, 2 P.3d 204). A trial court does not abuse its discretion in giving an instruction if it is “supported either by direct evidence or by some logical inference from the evidence presented.” Erickson, ¶ 35 (citing State v. Hudson, 2005 MT 142, ¶ 17, 327 Mont. 286, 114 P.3d 210). However, it is reversible error for a trial court to give conflicting instructions on a material issue. Bohrer v. Clark, 180 Mont. 233, 246, 590 P.2d 117, 124 (1978) (citing Skeleton v. Great N. Ry. Co, 110 Mont. 257, 100 P.2d 929 (1940)). ¶11 In this case, the District Court did not give conflicting instructions on the issue of King’s duty to retreat; rather, the court properly instructed the jury based upon the conflicting evidence presented at trial. Indeed, based on the evidence discussed above, both parties provided enough evidence for the jury to consider whether: 1) King had no duty to retreat because he was justified in his use of force against Colaprete; or 2) King had a duty to retreat upon escalation of the fight because he was the initial aggressor. Colaprete testified that King hit him from behind, while King testified that he felt justified in his use of force because he thought Colaprete was about to retrieve and use a 6 weapon. King also testified that Colaprete grabbed him during the fight, while Colaprete testified that he did not remember doing so. ¶12 Instruction 23 and Instruction 25(a) both expressly derive from Montana’s statutory law on justifiable use of force. The former instruction reflects the language of § 45-3-110, MCA, and addresses a person’s duty to retreat when that person is threatened with bodily injury or loss of life and that person is not the initial aggressor. The latter instruction reflects the language of § 45-3-105(2)(a), MCA, and addresses a person’s duty to retreat when that person is the initial aggressor and provokes the use of force against him. Given the conflicting testimonial evidence in this case, the District Court had a duty to provide both instructions in order to allow the jury to decide if either factual account was credible. To do otherwise would have invaded the province of the jury as a rational finder of fact. See State v. Thorp, 2010 MT 92, ¶ 24, 356 Mont. 150, 231 P.3d 1096 (“This Court consistently has held that the determination of the credibility of witnesses and the weight given to their testimony rests solely within the province of the jury.”). Based upon all of the evidence King and the State presented at trial, we conclude that the District Court properly instructed the jury on the law of justifiable use of force. CONCLUSION ¶13 For the foregoing reasons, we affirm. /S/ MICHAEL E WHEAT 7 We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE	December 13, 2016
02fb13cf-db17-4c48-8e0e-7fd4c35debe4	In re R.H.	2016 MT 329	DA 15-0679	Montana	Montana Supreme Court	DA 15-0679 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 329 IN THE MATTER OF: R.H., Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DI 15-0098 Honorable Rod Souza, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana Scott Twito, Yellowstone County Attorney, Billings, Montana Submitted on Briefs: October 26, 2016 Decided: December 13, 2016 Filed: /S/ ED SMITH Clerk 12/13/2016 Case Number: DA 15-0679 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 R.H. appeals from an involuntary commitment order entered by the Thirteenth Judicial District Court, Yellowstone County, on October 14, 2015. The order committed R.H. to the Montana State Hospital for a period not to exceed three months and ordered the use of involuntary medication, if needed. We affirm the order for commitment and reverse the administration of involuntary medication. ¶2 R.H. presents the following issues for review: 1. Whether there was sufficient evidence to support the commitment of R.H. 2. Whether the District Court erred in authorizing involuntary medication. FACTUAL AND PROCEDURAL BACKGROUND ¶3 R.H., age 72, suffers from bipolar disorder and general anxiety disorder. She takes medication for her mental illnesses. R.H. also has physical infirmities, including chronic obstructive pulmonary disease, congestive heart failure, hypertension, hyperlipidemia, diabetes and gout. She is being treated with oxygen, insulin, and other medications. In September of 2015, R.H. was evicted from her senior-living apartment at Pleasantview after having multiple altercations with her neighbors. Following her eviction, R.H.’s adult son paid for one week’s lodging at a motel. However, as of October 6, 2015, R.H. had nowhere to go and her son was unsuccessful in securing other living arrangements. R.H. lives on a limited fixed income controlled by a conservator, Joyce Wuertz (Wuertz). ¶4 On October 6, 2015, R.H.’s son and Wuertz contacted R.H.’s treating physician, Dr. Amstutz, because they were concerned about where R.H. was going to live and that R.H. was exhibiting mood swings and other symptoms of her bipolar disorder. Further, 3 R.H. had made a suicidal comment and did not appear to understand that her finances prevented her from continuing to stay in a hotel. Dr. Amstutz requested that R.H. be picked up by law enforcement and transported to the Billings Clinic Psychiatric Center for evaluation. ¶5 Upon admission to the Billings Clinic, R.H. was evaluated by Dr. Schuett. Dr. Schuett determined R.H. suffered from a mental disorder and needed treatment. Thereafter, the Yellowstone County Attorney’s Office filed a petition on October 8, 2015, to involuntarily commit R.H. At the initial hearing held October 9, 2015, the court found probable cause to believe R.H. was suffering from a mental disorder which might need commitment, and set trial on the State’s petition for October 14, 2015. The court appointed R.H. counsel and subsequently appointed, on October 13, 2015, Bonnie Karinen (Karinen) to evaluate R.H. Karinen is a nurse practitioner with an emphasis in psychiatry. ¶6 On October 13, 2015, Karinen filed a report with the court describing R.H.’s moods as labile; that R.H. exhibited grandiose thoughts and irrational decision-making; and that R.H. easily became irritable or cried. Karinen concluded R.H. suffered from a mental disorder requiring commitment because R.H. was unable to care for herself. During the hearing on October 14, 2015, Karinen testified consistent with her report and added that she believed the court should order involuntary medication for R.H. Karinen explained, “[i]n most cases for the safety of the patient and possibly others, you know, we usually do recommend [involuntary medication], and I would in this case, too.” Karinen 4 testified, however, that R.H. had no history of refusing her medication and that, at the time, R.H. was compliant and had been taking her medication as directed. ¶7 The evidence produced at trial established that R.H. either applied for or otherwise considered multiple types of housing, including Section 8 or HUD housing, hotels, nursing homes, assisted living, a crisis center, and a friend’s home. In each instance, R.H. was unsuccessful in securing housing, either because her request was denied or not responded to, or because R.H., herself, was uncooperative. Karinen testified that, “once a patient is a patient in the psychiatric center when we sen[d] the records, especially if there is any behavioral issues, it's highly unlikely that any [nursing home] will take her.” ¶8 Following the hearing, the District Court issued its Finding of Facts, Conclusion of Law and Order. The District Court found that R.H. suffered from a mental disorder; was unable to care for herself; the Montana State Hospital was the least restrictive treatment option available to R.H.; and that administration of medication “may be necessary to facilitate treatment” for R.H. The court reasoned that, “because of her mental disorder, she could abruptly decide not to take her medications.” STANDARD OF REVIEW ¶9 We review a civil commitment order by a district court to determine whether its conclusions of law are correct and whether the court’s findings of fact are clearly erroneous. In re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. “A finding of fact is clearly erroneous if ‘it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence or if, after a review of the entire record, we are left with the definite and firm conviction that a 5 mistake has been made.’” In re C.R., 2012 MT 258, ¶ 12, 367 Mont. 1, 289 P.3d 125 (quoting L.K.-S., ¶ 14). ¶10 “Whether a district court’s findings of fact satisfy statutory requirements is a question of law.” In re S.M., 2014 MT 309, ¶ 13, 377 Mont. 133, 339 P.3d 23. “We have long emphasized the necessity of ‘strict adherence’ to the statutory scheme governing involuntary commitment, given the utmost importance of the rights at stake in such proceedings, and the ‘calamitous effect of a commitment, including loss of liberty and damage to a person’s reputation.’” In re B.D., 2015 MT 339, ¶ 7, 381 Mont. 505, 362 P.3d 636 (citation omitted). DISCUSSION ¶11 1. Whether there was sufficient evidence to support the commitment of R.H.1 ¶12 The District Court concluded, relying on § 53-21-126(1)(a), MCA, that R.H. could not meet her “basic needs.” Basic needs are “food, clothing, shelter, health, or safety.” Section 53-21-126(1)(a), MCA. When committing a person pursuant to § 53-21-126(1)(a), MCA, the court must find that the person suffers from a mental disorder and that “because of a mental disorder, is substantially unable to provide for the [person’s] own basic needs[.]” (Emphasis added.) ¶13 It is undisputed that R.H. has a mental disorder and is currently unable to meet her own basic needs; specifically, R.H. is unable to find housing. R.H. argues, however, that her inability to find housing is not because of her mental disorder. R.H. maintains that 1 This appeal is not moot. Appeals from judgments of civil commitment are not rendered moot by expiration of the commitment. In re Mental Health of D.V., 2007 MT 351, ¶¶ 31-32, 340 Mont. 319, 174 P.3d 503. 6 she is simply a person with a mental disorder who is having a housing crisis; not that she is homeless because she has a mental disorder. R.H. believes that her inability to find housing is due to her lack of family support and financial resources. ¶14 We will only disrupt a district court’s finding of fact and conclusions of law if we determine factual findings are clearly erroneous or legal conclusions are incorrect. L.K.-S., ¶ 14. The District Court found that R.H. was unable to meet her basic needs. Testimony established that R.H. suffers from bipolar disorder which is characterized by fluctuating mood swings frequently exhibited by symptoms of mania and depression. Bipolar disorder is incurable, but treatable with medication, therapy, and the assistance of social supports. R.H. exhibited symptoms typical of a bipolar disorder by being irritable, frequently emotionally disturbed, and having irrational thoughts, paranoia, poor insight, and poor decision-making ability. The State produced evidence that R.H. was unaware of her financial limitations regarding housing options; that R.H.’s disorganized thoughts prevented R.H. from caring for herself; and that R.H.’s beliefs that she would soon find housing were fanciful, at best. ¶15 After careful review of the record, we conclude the District Court correctly determined that R.H. was unable to provide for her basic need of shelter because of her mental disorder and that the requirements of § 53-21-126(1)(a), MCA, were therefore satisfied. R.H. was evicted because of problems she was having with her neighbors which were a result of her mental disorder. There was substantial evidence to support the District Court’s conclusion that R.H.’s bipolar disorder and history of conflict with neighbors prevented R.H. from obtaining and securing housing. We reject R.H.’s 7 argument that the District Court committed her simply because she was homeless; rather, the District Court correctly concluded that R.H’s inability to find shelter was because of her mental disorder. ¶16 2. Whether the District Court erred in authorizing involuntary medication. ¶17 The District Court held in its Finding of Facts and Conclusion of Law that involuntary medication “may be necessary to facilitate treatment.” R.H. argues that the evidence does not support a finding of actual necessity to authorize involuntary medication. The State maintains that whether involuntary administration of medication “is necessary” must be considered within the context of the statute as a whole. Specifically, the State argues that § 53-21-127(6), MCA, sets forth three distinct levels of authority which must be met before medication is involuntary administered: (1) the district court’s authorization, (2) approval by the chief medical officer or designated physician, and (3) review by the involuntary medication review committee. Accordingly, the State maintains R.H.’s construction of the statute is too narrow and, as a practical matter, district courts do not ultimately make the decision as to whether involuntary medication should be administered. ¶18 We have held that due to the constitutional rights at stake during an involuntary commitment, we require “’strict adherence’ to the statutory scheme.” In re C.R., 2012 MT 258, ¶ 13, 367 Mont. 1, 289 P.3d 125; In re R.W.K., 2013 MT 54, ¶ 18, 369 Mont. 193, 297 P.3d 318. Pursuant to § 53-21-127(6), MCA, “[t]he court may authorize the chief medical officer of a facility or a physician designated by the court to administer appropriate medication involuntarily if the court finds that involuntary medication is 8 necessary to protect the respondent or the public or to facilitate effective treatment.” (Emphasis added.) If a commitment order includes involuntary medication, the court “shall make [a] . . . finding of fact [establishing] . . . the reason involuntary medication was chosen from among other alternatives.” Section 53-21-127(8)(h), MCA. ¶19 Here, the District Court did not find that involuntary medication “is necessary;” rather, the District Court found that involuntary medication “may be necessary to facilitate treatment.” The District Court concluded that although “[s]he has taken her medications while detained at the Clinic, but because of her mental disorder, she could abruptly decide not to take her medications.” Indeed, while we determine the District Court’s conclusion incorrectly applied the law, it was consistent with the evidence that involuntary medication, while not currently necessary, may become necessary in the future. Karinen explained Q What is your opinion on the involuntary administration of medication facility treatment? Do you believe the Court should order that? A Yes. In most cases for the safety of the patient and possibly others, you know, we usually do recommend that, and I would in this case, too. Q But [R.H.] hasn’t been declining to take her medication? A No, she has been very compliant with her treatment. Q So [R.H.] suffers from a mental disorder? A Yes. Q She suffers from a bipolar disorder? A Yes. Q Because of her bipolar disorder she is unable to care for herself? A Yes. Q Because of her bipolar disorder she may be a threat to herself? A Yes. Q And you believe the least-restrictive treatment option available to her is the Montana State Hospital at this time? A Unfortunately, yes. 9 Q And you’d recommend the involuntary administration of medication to facilitate treatment? A Yes. ¶20 Despite support in the record that involuntary medication “may be necessary” in the future and the District Court’s conclusion to the same effect, such a finding and conclusion does not satisfy the statute’s clear requirement that before involuntary medication is ordered by a court, the court must find that medication “is necessary.” Nor does the tiered level of review provided in subsection (8) of § 53-21-127, MCA, dilute the statutory requirement and obligation of the court to find that involuntary medication “is necessary.” “[T]he office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Where there are several provisions or particulars, such a construction is, if possible to be adopted as will give effect to all.” Section 1-4-101, MCA. Accordingly, we will not alter the clear words of the statute by declaring that “is necessary” means “may be necessary,” as to do so would violate maxims of jurisprudence and the plain language of the statute. ¶21 Based upon the record before us, R.H. had never refused to take her medication and, in fact, had been compliant in taking her medication while at the Billings Clinic and detained awaiting her trial. A finding or general understanding that an individual with bipolar disorder may at some undisclosed future point in time decide not to take her medications is insufficient to satisfy the plain language of the statute requiring that involuntary medication “is necessary.” Had a standard other than “is necessary” been the goal and intent of the legislature when it addressed forced medication of mentally ill 10 individuals, the legislature could have provided as much. Instead, it chose to use “is necessary” rather than “may be necessary,” clearly implying a heightened standard of consideration before involuntary medication may be utilized. This is consistent with other statutory sections contained within Title 53, chapter 21, MCA, pertaining to the mentally ill. The legislature sought to enhance protection against forced medication of the mentally ill by enacting § 53-21-145, MCA, specifically declaring that “[p]atients have the right to be free from unnecessary or excessive medication.” Accordingly, we have little difficulty strictly enforcing the statutory requirement that there must be evidence supporting a finding and conclusion that involuntary medication “is necessary.” A finding and conclusion that in the future a person may become noncompliant is insufficient to meet this statutory requirement. We find no basis on the record before us to conclude that R.H. would not take her medication and that it was necessary for the court to issue an order forcing her to do so. ¶22 Finally, we observe that should necessity for involuntary medication arise subsequent to entry of the commitment order, there are no statutory provisions which would prevent issuance of an order authorizing involuntary medication under such circumstances, provided due process demands have been satisfied. CONCLUSION ¶23 We conclude there was sufficient evidence to support R.H.’s involuntary commitment and affirm the commitment order. We reverse the portion of the order authorizing involuntary medication because there was insufficient evidence to support the 11 requirement that an involuntary medication order was necessary and the District Court erred in concluding the statute did not require involuntary medication was necessary. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE	December 13, 2016
ff65e10a-be1b-46b1-bab7-c98b263650d1	State v. Beaver	2016 MT 332	DA 15-0478	Montana	Montana Supreme Court	DA 15-0478 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 332 STATE OF MONTANA, Plaintiff and Appellee, v. JEFFREY DAVID BEAVER, Defendant and Appellant. APPEAL FROM: District Court of the Ninth Judicial District, In and For the County of Teton, Cause No. DC-15-007 Honorable Robert G. Olson, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Joe Coble, Teton County Attorney, Choteau, Montana Submitted on Briefs: November 16, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 15-0478 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Jeffrey David Beaver appeals from the District Court’s Judgment & Sentence filed July 29, 2015, convicting him of aggravated driving under the influence, second offense. We affirm. ¶2 We restate the issue on appeal as follows: Whether the District Court erred in upholding the stop and the ensuing warrantless inspection of Beaver’s truck by an officer of the Montana Department of Transportation. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On August 12, 2014, an officer of the Motor Carrier Services Division, Montana Department of Transportation (MDT), stopped Beaver’s commercial freightliner vehicle in Teton County. After making the stop the officer detected the odor of alcohol and believed that Beaver was driving under the influence. He used a portable breath test (PBT) device and it showed that Beaver’s breath alcohol concentration (BAC) was over 0.08. He also found alcoholic beverage bottles and cans in the vehicle. ¶4 The MDT officer called the Montana State Highway Patrol for assistance. A highway patrolman arrived and conducted field sobriety tests that indicated that Beaver could be impaired. A second PBT administered by the patrolman showed a BAC over 0.160. Beaver refused a blood test, and the patrolman obtained a search warrant for a blood sample. That sample registered a BAC of 0.239. The State charged Beaver with driving under the influence and several other misdemeanor offenses. 3 ¶5 The Teton County Justice Court conducted a bench trial in January 2015. At the conclusion of the trial the Justice of the Peace found Beaver guilty of aggravated driving under the influence with a BAC of 0.239 under § 61-8-465, MCA. The Justice of the Peace imposed a fine and a sentence of a year in the county jail with all but seven days suspended. ¶6 Beaver appealed to District Court and moved to suppress the evidence gathered after the MDT officer stopped his vehicle. The District Court denied the motion, citing a prior order of the Teton County District Court in State v. Valline, Cause No. DA-10-021. Beaver entered a guilty plea to the DUI charge, reserving the right to appeal denial of the motion to suppress.1 The District Court sentenced Beaver to a fine and to one year in the Teton County Jail with all but seven days suspended. ¶7 Beaver appeals. STANDARD OF REVIEW ¶8 This Court reviews a district court’s decision on a motion to suppress to determine whether the findings of fact meet the clearly erroneous standard, and whether the application of law was correct. State v. Marino, 2016 MT 220, ¶ 9, 384 Mont. 490, 380 P.3d 763. 1 The Justice Court also convicted Beaver of the misdemeanors of driving with a suspended license, possessing alcohol in a commercial vehicle, and failure to pay commercial vehicle fees. The State dismissed these misdemeanor charges in the subsequent proceedings in District Court. 4 DISCUSSION ¶9 Whether the District Court erred in upholding the stop and the ensuing warrantless inspection of Beaver’s truck by an officer of the Montana Department of Transportation. ¶10 The issue in this case is whether the MDT officer needed particularized suspicion to initiate the stop of Beaver’s truck as provided in § 46-5-401, MCA. We conclude that the officer did not need a fact-based particularized suspicion to stop and inspect the truck because it was a commercial vehicle subject to close regulation by law. ¶11 The factual record in this case is sparse. The only findings of fact are those that the Justice Court made. The Justice Court found that Beaver was driving a “white, Freightliner, commercial vehicle over 52,000 pounds” when the MDT Motor Carrier Services officer stopped him “in order to conduct a safety inspection.” The Justice Court found that after the stop the MDT officer detected the odor of alcohol from Beaver, and observed alcoholic beverage containers in the cab. The Justice Court found that the preliminary breath test administered by the MDT officer indicated a BAC over 0.08, and that Beaver’s driving privileges were suspended after a 2012 DUI conviction. The Justice Court found that a Montana Highway Patrol officer responded and “conducted the DUI investigation,” including a field sobriety test and another breath sample, indicating a BAC over 0.160. The Justice Court found that the patrolman obtained a search warrant for Beaver’s blood, which resulted in a BAC of 0.239. ¶12 The Fourth Amendment’s prohibition of unreasonable searches and seizures is applicable to commercial premises as well as to private homes, and applies to both police searches and to “administrative inspections designed to enforce regulatory statutes.” New 5 York v. Berger, 482 U.S. 691, 699, 107 S. Ct. 2636, 2642 (1987). However, an individual’s expectation of privacy in commercial premises is “different from, and indeed less than, a similar expectation in an individual’s home.” Berger, 482 U.S. at 700, 107 S. Ct. at 2642. As to persons engaged in “closely regulated” enterprises with significant government oversight, the law recognizes that there is “no reasonable expectation of privacy.” Berger, 482 U.S. at 700, 107 S. Ct. at 2642. Courts have found that the closely regulated enterprise exception to the Fourth Amendment applies to the liquor industry, to pawnshops, to interstate firearms sellers, to the mining industry, and to auto salvage. Berger, 482 U.S. at 700-01, 107 S. Ct. at 2642-43. ¶13 The legal underpinning of the closely regulated enterprise exception to the Fourth Amendment is that the reasonableness requirements for a governmental search have “lessened application” because the privacy interests of the owner are “weakened” and the governmental interest in regulation is “heightened.” Berger, 482 U.S. at 702, 107 S. Ct. at 2644. A warrantless governmental action in the closely regulated enterprise context will be “deemed to be reasonable” if there is a substantial governmental interest in the applicable regulatory scheme; if warrantless inspections are necessary to further the regulatory scheme; and if the regulatory scheme advises affected persons that the inspection is made pursuant to law which properly defines its scope. Berger, 482 U.S. at 702-03, 107 S. Ct. at 2644. Numerous Federal Circuits have recognized that commercial trucking is a closely regulated enterprise subject to these rules. U.S. v. Delgado, 545 F.3d 1195, 1201 (9th Cir. 2008). The Ninth Circuit has concluded that “the myriad federal and state statutes that govern commercial trucking place it squarely within the class of 6 industries to which Berger applies.” Delgado, 545 F.3d at 1202. “[W]arrantless inspection of commercial vehicles ‘advances a substantial government interest’ and is ‘necessary to further the regulatory scheme.’” Delgado, 545 F.3d at 1202. The Delgado Court upheld the warrantless stop of Delgado’s truck because trucking is a closely regulated enterprise under state law. Delgado, 545 F.3d at 1203. ¶14 It is clear that commercial trucking is a closely regulated enterprise in Montana and that the Berger rule applies to stops and inspections of commercial trucking. Commercial trucking is subject to extensive federal oversight found in Title 49 of the Code of Federal Regulations. Montana law contains comprehensive and detailed regulations applicable to commercial vehicles. These cover allowable vehicle widths (§ 61-10-102, MCA); vehicle heights (§ 61-10-103, MCA); vehicle length (§ 61-10-104, MCA); and maximum vehicle gross weight (§ 61-10-107, MCA). Montana law provides for coordination with federal requirements concerning vehicle gross weight, axle load, and size. Section 60-10-110, MCA. ¶15 Montana law authorizes MDT to adopt safety standards for commercial vehicles, which must substantially comply with federal motor carrier safety and hazardous material regulations. Section 61-10-154(2) and (3), MCA. MDT adopted detailed regulations applicable to commercial trucking. Admin. R. M. 18.8.101 through .1506. Those regulations cover the “safety inspection program” that authorizes “roadside inspection of commercial motor vehicles for compliance with federal and state safety requirements.” Admin. R. M. 18.8.1506. Montana law requires MDT to coordinate with the Montana Highway Patrol to enforce safety standards in order to maximize coordination and 7 minimize duplication. Section 61-10-154(4), MCA. The regulations require MDT to enforce safety standards through its employees that it designates as “peace officers.” Those officers may issue citations and make arrests for violations of safety standards, and may make reasonable inspections of commercial cargo. Admin. R. M. 18.8.1461. The MDT officers may also enforce applicable federal regulations, including making “reasonable safety inspections of commercial motor vehicles.” Section 61-10-154(5), MCA. Based upon these statutes, upon the authorized safety regulations, and upon the coordination and enforcement of federal requirements, it is clear that in Montana commercial trucking is a “closely regulated” industry under Berger. ¶16 It is also clear that warrantless inspections of commercial vehicles are necessary to enforce the applicable requirements related to size, length, weight, and other regulated aspects of the trade. These regulations are clearly intended to help insure the safety of the motoring public in general, and of those engaged in commercial trucking. It is evident that commercial vehicles can pass quickly through jurisdictions with safety violations that are not readily apparent and that would largely escape detection if states did not have the power, as Montana law provides, to stop those vehicles for safety inspections. Delgado, 545 P.3d at 1202. Section 61-10-141(1)(a), MCA, specifically provides that an MDT officer may require that the vehicle be driven to the nearest scale for purposes of having it weighed. These inspection powers clearly are necessary and serve a substantial governmental interest. ¶17 It is also evident that those involved in the commercial trucking industry are on notice that they are subject to inspections to determine compliance with statutes and 8 regulations. The adoption of statutes and regulations provides clear notice that there are extensive requirements applicable to commercial trucking activities, and that those activities are subject to inspection to ensure compliance. Inspections authorized by statute to determine compliance with discrete requirements are consistent with the requirements of Berger. ¶18 Because commercial trucking is a closely regulated activity in Montana, and because Montana’s regulatory scheme complies with the notice and focus requirements of Berger, the MDT officer in this case was authorized to stop Beaver’s vehicle for inspection without a warrant and without particularized suspicion of a violation. After detecting evidence that Beaver might be under the influence of alcohol, the officer was authorized to make further investigation and to enlist the assistance of the Highway Patrol as a matter of public safety. After the initial stop of Beaver’s truck, evidence of his consumption of alcohol (the alcoholic beverage containers) was in plain view in the truck and could be seized and used in a subsequent prosecution. State v. Loh, 275 Mont. 460, 469, 914 P.2d 592, 597-98 (1996). When an officer is lawfully present and discovers evidence in plain view it may be seized and used against the defendant. State v. Delao, 2006 MT 179, ¶ 15, 333 Mont. 68, 140 P.3d 1065. ¶19 The MDT officer in this case acted properly and within the requirements of law in stopping Beaver’s truck. The resulting evidence of a DUI offense was properly obtained. Beaver’s conviction is affirmed. /S/ MIKE McGRATH 9 We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ JIM RICE	December 20, 2016
8a783049-735a-4d23-9bdc-5d38c7364140	Korman	2016 MT 319N	DA 16-0071	Montana	Montana Supreme Court	DA 16-0071 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 319N RON KORMAN and MAXINE KORMAN, Objectors; Counter- Objectors and Appellants. APPEAL FROM: Montana Water Court, Cause No. 40M-71 Honorable Russ McElyea, Chief Water Judge COUNSEL OF RECORD: For Appellants: Ron Korman (Self Represented), Maxine Korman (Self-Represented), Hinsdale, Montana Submitted on Briefs: November 2, 2016 Decided: December 6, 2016 Filed: __________________________________________ Clerk 12/06/2016 Case Number: DA 16-0071 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Ron and Maxine Korman appeal from the Water Court’s Order Adopting Master’s Report, filed November 19, 2015. We affirm. ¶3 The Kormans objected to their own claims in Water Court proceedings. The Kormans assert that they own “vested” water rights and not just “existing” water rights, and that the Water Court erred by refusing to apply that status. The Kormans also contend that the priority dates for their various water claims should be amended to reflect a uniform priority date of December 31, 1893. This claim is based upon their contention that their stockwatering rights should bear the priority dating to the earliest use of open range by ancestral free grazers.1 The Water Court affirmed the Water Master’s Report, concluding that the Kormans had failed to show a connection between water use by the ancestral free grazers sufficient to make the Kormans successors to water rights, if any, that these people perfected. The Water Court changed the priority dates for some of the Kormans’ groundwater claims, based upon the evidence the Kormans presented. 1 We refer to the large cattle operations in the days of the open range between dispossession of Native Americans and the advent of homesteading as “ancestral free grazers.” The Kormans claim to be successors in interest to these grazers and rely upon their presumed water use as the basis for many of their claims. 3 ¶4 Article IX, Section 3 of the Montana Constitution provides that all “existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed.” (Emphasis added.) This provision expressly confirms all pre-1973 water rights as a matter of constitutional law, and it confirms the Kormans’ existing water rights. No other category of pre-1973 rights is provided. ¶5 The Kormans claim that their “vested” water rights are exempted from the adjudication required of all existing water rights in Montana. If so, then the Kormans would have a status not afforded any other existing water right holders. If the Kormans’ claimed vested right exemption were applied to all existing water right claimants, the state-wide water right adjudication process would come to an abrupt halt. The provision of the Constitution providing for a system for “the administration, control, and regulation of water rights” would be rendered null and void. ¶6 It is well established that “Montana has always protected, by law and the decisions of this Court prior to 1972, and by the Montana Constitution since 1972, any beneficial irrigation right within the original appropriation of water.” McDonald v. State, 220 Mont. 519, 525, 722 P.2d 598, 692 (1986). This protection extends to the actual pre-1973 beneficial use of water and the Water Court has a duty to determine and protect that right. McDonald, 220 Mont. at 535, 722 P.2d at 608 (Order on Rehearing). The Montana Constitution preserves and protects rights to “such amount of water as, by pattern of use and means of use, the owners or the predecessors put to beneficial use.” Montana law requires that “all water rights, regardless of prior statements or claims as to the amount, must nevertheless, to be recognized, pass the test of historical, un-abandoned 4 beneficial use. . . . To that extent only the 1972 constitutional recognition of water rights is effective and will be sustained.” McDonald, 220 Mont. at 529, 722 P.2d at 604. Existing water rights are subject to determination in the water rights adjudication process, and “have not been granted indefeasible status.” In the Matter of the Adjudication of the Existing Right to the Use of Water, 253 Mont. 167, 174, 832 P.2d 1210, 1214 (1992). The Kormans are entitled to a declaration and protection of their existing water rights. ¶7 The Kormans claim a uniform 1893 priority date for all of their stockwater claims based upon the presence of ancestral free grazers on the land they now own. The Water Master’s Report found: “The claimants do not know who was watering the stock, where the stock was watered or when those appropriations first occurred.” In response to their objections, the Water Court examined the historical record the Kormans presented. The Water Court held that even assuming that the ancestral free grazers appropriated stockwater prior to 1893, there was “no evidence those water rights were conveyed to the Kormans or their predecessors.” The fact that the Kormans now own land grazed in the nineteenth century was not sufficient to make any such appropriations appurtenant to the land and to make them the property of the Kormans. The Water Court determined that the Kormans were unable to show a sufficient relationship between themselves and the ancestral free grazers to relate the present stockwater claims back to 1893. St. Onge v. Blakley, 76 Mont. 1, 20, 245 P. 532, 538 (1926). ¶8 The Water Court found a lack of factual support for the Kormans’ claims that the priority date for their irrigation rights should be earlier than the Kormans originally claimed. However, the Water Court considered the evidence regarding the Kormans’ 5 groundwater claims and found that some changes were warranted. The Water Court “slightly” modified the priority dates, and one claim received a 1916 priority date, a change from the original 1950 date the Kormans initially claimed. ¶9 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the Water Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled law, which the Water Court correctly interpreted. ¶10 Affirmed. /S/ MIKE McGRATH We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON	December 6, 2016
751204d1-2ac8-4dcb-b7c4-bd0a60cad5a2	State v. Mayes	2016 MT 305	DA 15-0371	Montana	Montana Supreme Court	DA 15-0371 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 305 STATE OF MONTANA, Plaintiff and Appellee, v. JACK DEAN MAYES, Defendant and Appellant. APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte/Silver Bow, Cause No. DC 14-146 Honorable Brad Newman, Presiding Judge COUNSEL OF RECORD: For Appellant: Wendy Lee Holton, Attorney at Law, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Eileen Joyce, Assistant Attorney General, Helena, Montana Submitted on Briefs: September 7, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 15-0371 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Article II, Section 24, of the Montana Constitution, grants individuals accused of crimes the right to a speedy trial. At issue here is whether the right to a speedy trial is violated when, among other things, an accused is deprived of access to rehabilitation programs he would otherwise attend but for his unduly lengthy incarceration in county jail. After conducting a balancing of the applicable factors, the District Court found no violation. We reverse.1 FACTUAL AND PROCEDURAL BACKGROUND ¶2 Jack Dean Mayes (Mayes) has an extensive criminal record, including primarily drug offenses and other offenses likely related to drugs. Thus, Mayes was already on parole for a prior felony drug conviction when his parole officer arrested him, searched his home in Butte, and found a syringe containing liquid in a jacket pocket that field tested positive for methamphetamine. On August 7, 2014, the State arrested Mayes and charged him with felony criminal possession of the syringe in violation of § 45-9-102, MCA. Mayes made his initial appearance in Justice Court the next day, where his bond was set at $5,500. ¶3 The State filed an information on August 15, 2014. Mayes pleaded not guilty on August 28, 2014, and an omnibus hearing was held on September 18, 2014. At the omnibus hearing, the District Court set trial for February 9, 2015, 186 days after his arrest. At the time of Mayes’ arrest, the State Crime Lab had a substantial backlog of 1 Mayes also raises on appeal the District Court’s failure to credit his period of incarceration with 125 days. Based upon our resolution of the speedy trial issue, it is unnecessary to address Mayes’ second issue. 3 cases and notified the State that any analysis would require between seven and nine months to complete. On August 11, 2014, four days after Mayes was arrested, the Sheriff’s Office received notification from the State Crime Lab that the contents of the syringe had to be placed into a vial for purposes of analysis. Despite having received such notification, the State waited until November 17, 2014, or 102 days after Mayes’ arrest, to submit the substance for testing. There is no dispute that the State controlled the syringe and its contents during this 102 day period. During the hearing on the motion to dismiss, the State conceded that “there’s 100 days there that the substance sat in the sheriff’s department and didn’t get transferred.” Ultimately, the State could not explain why submission of the sample languished for nearly three and one-half months. ¶4 Since it appeared the lab would not complete its analysis in time for trial, the State filed a motion on January 20, 2015, to continue the February 9, 2015 trial date. Mayes objected, arguing that the continuance would leave him incarcerated for an excessive amount of time and place the trial date beyond the threshold period of 200 days established in Ariegwe.2 The District Court granted the continuance and reset Mayes’ trial for May 19, 2015, which was 285 days after his arrest. On April 2, 2015, Mayes filed a motion to dismiss for speedy trial violations. The State responded and the District Court entertained argument on the motion, ultimately issuing an order denying the motion on May 12, 2015. On May 13, 2015, Mayes pleaded guilty, but reserved the right to appeal the denial of his speedy trial motion. Thereafter, he received a five-year sentence to run concurrently with the sentence for which he was on parole. Mayes 2 See State v. Ariegwe, 2007 MT 204, ¶ 41, 338 Mont. 442, 167 P.3d 815. 4 remained incarcerated in county jail from the time of his arrest on August 7, 2014, until he entered his guilty plea on May 13, 2015, a total of 279 days. ¶5 In its order denying Mayes’ speedy trial motion, the District Court analyzed each Ariegwe factor. The court first acknowledged that the delay was beyond the 200 day threshold that would trigger a speedy trial analysis. In addressing the reasons for the delay, the District Court found the delay between Mayes’ arrest and his trial date was attributable to the State for purposes of balancing, but with a lesser degree of culpability. As for the specific delay arising from the State’s late submission of the sample to the lab, a delay of approximately 100 days, the court rejected Mayes’ argument that this delay was a tactical decision by the State to secure “better evidence.” Instead, the court found the delay was institutional, akin to negligence or a lack of diligence, which is the middle tier of the culpability scale in an Ariegwe analysis. The District Court recognized that Mayes had timely asserted his interest in a speedy trial by objecting to the State’s motion to continue trial, and then by motion on April 2, 2015. With respect to whether the delay caused Mayes prejudice, the court found that Mayes was incarcerated after December 11, 2014 as a result of his parole violation and not because of the new drug charges. Therefore, the court found no prejudice attributable to delay in the case pending before it for the new charges. The court also concluded Mayes had failed to provide sufficient evidence that: (1) the delay caused him aggravated anxiety or concern beyond what any person accused of a crime would face; (2) that Mayes had missed opportunities to participate in DOC treatment and rehabilitation programs; and (3) that Mayes’s defense had otherwise been compromised because of the delay. 5 STANDARD OF REVIEW ¶6 We review a district court’s findings of fact underlying a speedy trial claim for clear error. A court’s findings of fact are clearly erroneous when they are not supported by substantial credible evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been made. Whether there has been a constitutional violation of the right to speedy trial is reviewed de novo to determine whether the lower court’s interpretation and application of the law are correct. Ariegwe, ¶ 119. DISCUSSION ¶7 An accused’s right to a speedy trial is guaranteed by United States Constitution Amendments Six and Fourteen, and by Article II, Section 24, of the Montana Constitution. A reviewing court must analyze a potential speedy trial violation by balancing four factors: (1) the length of the delay; (2) the reasons for the delay; (3) whether the accused asserted his right to a speedy trial; and (4) whether prejudice to the accused resulted from the delay. Ariegwe, ¶ 20. When balancing the four factors, no single factor is dispositive and each is to be considered under the totality of relevant circumstances. Ariegwe, ¶ 112. The speedy trial clock commences once the accused is arrested, a complaint is filed, or an indictment or information is filed. Ariegwe, ¶ 42. A reviewing court must first address the length of delay as a threshold matter to determine if a speedy trial claim merits analysis. Ariegwe, ¶ 38. A minimum 200 days must elapse between the speedy trial clock’s commencement and the date of trial before a speedy trial claim merits consideration. Ariegwe, ¶ 41. 6 Factor One: The Length of the Delay ¶8 We consider the extent to which the delay stretches beyond the 200 day trigger date because a presumption of prejudice intensifies as the delay exceeds the trigger date: the greater the excess over the trigger date, the more likely the accused suffered prejudice. Ariegwe, ¶ 49. Here, Mayes was arrested on August 7, 2014 and pleaded guilty on May 13, 2015, a total of 279 days. This period exceeds the 200 day threshold by 79 days and, as the delay extends, it establishes an intensifying presumption of prejudice in Mayes’ favor. This factor favors Mayes’ motion to dismiss. Factor Two: The Reason for the Delay ¶9 A court reviewing a speedy trial claim does not consider in its analysis any action by either the State or the accused which does not postpone the trial date. Ariegwe, ¶ 63. The reviewing court must consider the cause and motive, or reason, behind the particular delay. Ariegwe, ¶ 67. Deliberate delays designed to undermine the defense are heavily weighed, while negligent or institutional delays are weighed less heavily. Ariegwe, ¶ 68. Institutional delays are those inherent in the criminal justice system, and beyond control of prosecutors. Ariegwe, ¶ 68. Negligence is equated with a lack of diligence in bringing the accused to trial. Ariegwe, ¶ 69. ¶10 We have previously recognized that where the State knows the State Crime Lab is significantly backlogged, the failure to inquire about independent lab analysis or other options constitutes a lack of diligence, even when the backlog is due to circumstances beyond the control of the prosecutor. State v. Velasquez, 2016 MT 216, ¶¶ 19-20, 384 Mont. 447, 377 P.3d 1235. In Velasquez, an accused facing felony drug charges was 7 incarcerated in Roosevelt County Jail the entire 309 days he awaited trial. Weeks before his first trial date, the State moved for a continuance because the lab analysis of the evidence had not been completed. As here, the State Crime Lab had informed the State that evidentiary samples were backlogged by an estimated nine months. The District Court granted the continuance despite Velasquez’ objection that he would be denied his right to a speedy trial. The District Court granted two more continuances to allow for completion of lab results. In denying Velasquez’ speedy trial motion, the District Court categorized the delay as institutional, and not attributable to negligence or lack of diligence on the part of the State. Velasquez, ¶¶ 1-5. We reversed, concluding that the failure of the State to pursue possible alternatives to testing at the State Crime Lab, coupled with the State’s awareness that the lab was backlogged by nine months, constituted a lack of diligence which weighed more heavily against the State and tipped the prejudicial scale in favor of the defendant in the Ariegwe analysis. Velasquez, ¶¶ 51-53. ¶11 As in Velasquez, the District Court here mischaracterized the prosecution’s inaction in submitting the sample as part of “the ordinary time required to initiate and prosecute a felony criminal action.” The delay in Velasquez—309 days—and the delay here—279 days—both resulted from the State’s failure to obtain a lab analysis necessary to prosecute a simple drug possession charge. The focus in both Velasquez and here is the State’s failure to take affirmative measures to move its case to trial and not the conduct of the lab. Furthermore, here, the delay by the State of 102 days in submitting the sample weighs more heavily against the State than in Velasquez because the State was 8 in control of the sample and the timetable for its submission to the lab. Although the delay remains unexplained, we decline to adopt Mayes’ position, on this record, that the State’s actions amounted to a deliberate bad faith effort to prejudice the defense. However, we cannot characterize the delay as merely a lack of diligence by the State when, all other considerations aside, failing to submit the sample constituted over one- half of the time necessary to trigger a speedy trial inquiry. Indeed, as the United States Supreme Court has cautioned, the speedy trial factors that make up our Ariegwe test “have no talismanic qualities.” Ariegwe, ¶ 101 (citing Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 2193 (1972)). We therefore weigh the reason for the delay heavily against the State, but refrain from concluding that there was a deliberate bad faith delay by the State. It is the State’s burden to bring the accused to trial and a defendant has no burden to ensure the State’s diligent prosecution of his case. Ariegwe, ¶ 64. Such a burden should not be shouldered lightly by the State, especially when there are legitimate institutional delays, such as crowded dockets and availability of witnesses, which must be accounted for. Here, the record is devoid of any explanation for the State’s failure to submit an evidentiary sample to the lab for 102 days. As such, the reason for the delay weighs heavily against the State. Factor Three: The Accused’s Response to the Delay ¶12 Ariegwe not only requires that the District Court determine whether the accused timely asserted his right to a speedy trial, but also whether he actually wanted a speedy trial, given the circumstances. Ariegwe, ¶¶ 76, 79. We agree with the District Court that Mayes timely asserted his right by objecting to the State’s motion to continue and by 9 filing his motion to dismiss on April 2, 2015. We also agree with the District Court that there is no evidence in the record that the Defendant acquiesced or consented to the delay he endured. ¶13 We are compelled, however, to address the State’s argument that Mayes did not actually want a speedy trial because he ultimately pleaded guilty instead of proceeding to trial. Although Ariegwe acknowledges that a guilty plea stops the speedy trial clock, an accused’s constitutional right to a speedy trial is not compromised by the entry of a guilty plea. See Ariegwe, ¶ 43. It would be a mistake to align these distinct constitutional interests—the right to a speedy trial; the relinquishment of the right to trial; and all other constitutional rights attendant to trial—such that relinquishment of one constitutional right would compromise others that are distinguishably different. Ariegwe does not anywhere diminish the interests of an accused who chooses to enter a plea instead of proceed to trial, and we decline to do so here. Instead, we find that the Mayes met his burden of asserting his right to speedy trial. Factor Four: Prejudice to the Accused ¶14 Under factor four, the reviewing court must examine the interests of the defendant that the speedy trial right was designed to protect. Ariegwe, ¶ 86 (citing Barker v, 407 U.S. at 552, 92 S. Ct. at 2193). The United States Supreme Court enumerated these interests: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired because of dimming memories and the loss of exculpatory evidence. Ariegwe, ¶ 88 (citing Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett v. United States, 505 U.S. 647, 10 654, 112 S. Ct. 2686, 2692 (1992)). A reviewing court may find prejudice to the accused under any one or all of these factors. Ariegwe, ¶ 88. A. Whether Mayes’ pretrial incarceration was oppressive. ¶15 We have repeatedly recognized that the delay that can be tolerated for a relatively simple street crime is considerably less than, for example, a complex conspiracy charge. Ariegwe, ¶ 91. In State v. Billman, 2008 MT 326, 346 Mont. 118, 194 P.3d 58, Billman was charged with felony DUI and related driving offenses. Billman remained incarcerated and unable to post bail for 278 days while his trial was continued five times because of docket conflicts and a missing witness. Billman, ¶¶ 4-6. We recognized that Billman’s time incarcerated represented a “considerable amount of delay” and required the State to make a compelling and persuasive showing that this amount of delay did not prejudice him. Billman, ¶ 18. Even though Billman did not challenge the conditions of his incarceration, we found that the length of his incarceration in conjunction with the simple charges he faced sufficed to establish prejudice against him. Billman, ¶ 41; see also Velasquez, ¶ 35. Here, Mayes prosecution was also for a simple charge: possession of dangerous drugs. The charge against Mayes had only two elements: (1) possession; (2) of dangerous drugs. Section 45-9-102, MCA (2013). Therefore, the delay, ostensibly for the purpose of establishing the syringe contained a dangerous drug, is less tolerable and weighs against the State. ¶16 Mayes’ case additionally raises concerns regarding foregone rehabilitative opportunities, such as drug treatment and counseling, which we have not previously considered in the speedy trial balancing analysis. These considerations are most 11 appropriately made in the context of whether the pretrial incarceration has been oppressive. The District Court determined that, as of Mayes’ December 11, 2015 parole hearing, Mayes’ incarceration was due to his parole violation and not the pendency of the new drug charges. On that basis, the court concluded that it “cannot find that the Defendant’s pretrial incarceration has been oppressive under the circumstances. He was subject to continued custody regardless of the fact that the original trial date was vacated.” ¶17 We disagree with both the court’s finding of fact and its application of the law when it determined Mayes was not prejudiced because he was incarcerated pursuant to a parole violation. The record establishes that Mayes would not receive a disposition on his parole violation while the new charges in the instant proceedings remained unresolved. At Mayes’ probable cause hearing for his parole violation, held the day before he met with the parole board, Mayes’ parole officer advised, “[a]ny sanction I would impose, would be determined by . . . the outcome of those pending charges. . . . [B]asically what I am telling you [Mayes] is that you’re stuck here [in Butte-Silver Bow county jail] until those [charges] are adjudicated.” The record further establishes that Mayes was prescreened and accepted for Connections Corrections, followed by pre- release, but that such a placement could not occur until resolution of the new possession charges. Similarly, Mayes was an appropriate referral for NEXUS, but any placement would not occur until resolution of the new felony charges. Parole Officer Martin testified at the speedy trial hearing and explained Mayes’ situation succinctly: Q: Now going to the December 11 [parole board] hearing, what was the 12 result of that hearing? A: There was probable cause found by the Hearings Officer Kelley that the [parole] violations had occurred, and he was ordered to be returned back before the Board of Pardons and Parole. . . . Q: Now, from August 7, the date of his arrest, until currently, has he been able to apply for or enter any programs that the DOC offers? A: I had him pre-screened for Connections prior to his arrest on August 7. And then after his arrest. . , he was pre-screened at the Great Falls Pre- Release Center and accepted. Q: Okay. But he couldn’t go to those programs because of the August 7 arrest? A: Yes, sir. Q: Okay. While he’s been in the county jail, could he apply for any other DOC type of programs? A: Yes. Q: Like what? A: We could screen him for NEXUS, pre-releases and that, just getting that process taken care of for the outcome of the pending charges. Q: So even though he may have applied for the programs, he couldn’t go until these charges are resolved? A: No. No. He could not go. He’s not eligible for community placement until the felony charges are adjudicated or dismissed. ¶18 Mayes has established that he was prescreened and accepted for at least one rehabilitative drug program, followed by a community placement, which he could have participated in but for his incarceration in the county jail on new drug charges. We further observe that the sentence Mayes received was imposed concurrently to the 13 sentence he received his at parole hearing and for which his parole officer recommended participation in a drug rehabilitation program followed by community placement. It appears counterproductive, to say the least, to delay drug rehabilitation treatment for an offender obviously suffering from a drug addiction in order to test the substance in a syringe recovered from his person—submission of which did not occur for 102 days, or nearly twice as long as it would take for the offender to complete treatment at Connection Corrections. ¶19 We consider efforts to rehabilitate drug addiction as important, and opportunities to receive treatment are frequently limited, requiring many circumstances to align to effectuate the treatment opportunity. Here, the record established that Mayes had such an opportunity; he had been prescreened and could be placed in a drug rehabilitation program. However, the pending possession charges in the instant proceedings prevented him from doing so. In contrast to the speculative prospects for rehabilitation presented in State v. Betterman, 2015 MT 39, 378 Mont. 182, 342 P.3d 971, aff’d, Betterman v. Montana, ___U.S.___,136 S. Ct. 1609 (2016), Mayes has met his burden of establishing the availability and placement into drug rehabilitation programs which he was unable to realize because of the pending new drug charges. Thus, we consider the inability of Mayes to participate in drug rehabilitation as a consideration of oppressive pretrial delay and weigh it against the state. 14 B. Whether Mayes’ anxiety and concern was caused by or aggravated by the delay. ¶20 “[T]he crucial question here is whether the delay in bringing the accused to trial has unduly prolonged the disruption of his or her life or aggravated the anxiety and concern that are inherent in being accused of a crime.” Ariegwe, ¶ 97 (citing United States v. Macdonald, 456 U.S. 1, 8, 102 S. Ct. 1497, 1502 (1982)). In evaluating this interest, the court may infer from evidence that the unresolved charges disrupted the accused’s life, causing him anxiety and concern that led to prejudice. Ariegwe, ¶ 97. But a certain amount of disruption when facing criminal charges is to be expected, and finding prejudice from anxiety and concern hinges on duration and intensity. Ariegwe, ¶ 97. ¶21 Here, the record shows that Mayes alleged anxiety and concern. Mayes alleged that he suffered financially from his incarceration in that he was not employed, and was not able to graduate from college on time with his peers. He alleged that he suffered depression and emotional impairment as the result of his extended confinement. Although Mayes alleged a number of ways he has suffered anxiety and concern, he failed to present any evidence to the District Court to support his allegations. Ariegwe permits a reviewing court to infer from evidence that unresolved charges have disrupted the accused’s life, but Mayes failed to set forth any additional evidence for review under this factor. While Mayes’ testimony alone of his anxiety and concern is evidence for the court to consider, we attribute little, if any, prejudice to Mayes on this factor. 15 C. Whether the accused’s defense was impaired. ¶22 Preventing impairment of the defense remains the most serious interest the speedy trial right was designed to protect. Ariegwe, ¶ 98. Even though this interest focuses on specific aspects of potential impairment, such as witness reliability and evidence spoliation, an accused who fails to set forth any evidence of specific impairment is not precluded from a finding of prejudice. Ariegwe, ¶¶ 99-100. Rather, a lack of evidence showing impairment allows the court to focus on other speedy trial factors to determine whether the pretrial delay has prejudiced the defense. Billman, ¶ 47. The extent to which an accused may rely on the presumption of prejudice depends on the extent to which the delay exceeds the 200 day trigger date. Ariegwe, ¶¶ 51, 151. ¶23 In Ariegwe, we concluded that Ariegwe’s delay of 208 days past the trigger date (408 days total) required the State to make a compelling justification for the delay, and a persuasive showing that he had not been prejudiced by the delay. Ariegwe, ¶¶ 123, 151. However, we further concluded that the extent of that delay, substantial as it was, did not completely absolve Ariegwe from showing at least some particularized prejudice. Ariegwe, ¶ 151. By contrast, we concluded in Velasquez that a record with only a modicum of evidence showing an impaired defense would suffice to adequately support presumptive prejudice and direct a reviewing court to analyze the other factors. Velasquez, ¶¶ 48-50. Similarly, in Billman, we acknowledged the accused’s failure to submit affirmative proof of prejudice would not be fatal to the defendant’s speedy trial claim and would instead focus our attention on other factors. Billman, ¶ 47; see also State v. Butterfly, 2016 MT 195, ¶ 38, 384 Mont. 287, 377 P.3d 1191 (“[C]onsidering the 16 lack of evidence of impairment in light of all other factors, we conclude Butterfly was not prejudiced by the delay.”); State v. Redlich, 2014 MT 55, ¶ 53, 374 Mont. 135, 321 P.3d 82 (affirming the District Court’s ruling that there was no prejudice to the defendant where he alleged a defense impairment, but provided no detail how exactly his defense was hindered); State v. Zimmerman, 2014 MT 173, ¶ 37, 375 Mont. 374, 328 P.3d 1132 (concluding that there was no prejudice despite the defendant’s mere allegation of a defense impairment where witness memories were marginally dimmed by the erosion of time, but events were easily reconstructed by video evidence). ¶24 Here, the District Court found that Mayes failed to identify any evidence showing that potential evidence was lost, that witnesses have become unavailable, or that Mayes demanded an independent examination of the evidence. Indeed, the court found, “the Defendant has not alleged or shown any specific limitation on his ability to present an effective defense.” We agree with the District Court. Although “consideration of prejudice is not limited to the specifically demonstrable,” the complete lack of evidence that the defense was impaired should be considered under the totality of the circumstances. Ariegwe, ¶ 151 (quoting Doggett, 505 U.S. at 655, 112 S. Ct. at 2692-93). Here, Mayes’ inability or unwillingness to substantiate with evidence other than his own allegations some impairment to the defense weighs in favor of the State. Balancing the Factors ¶25 Whether the accused was deprived of his right to a speedy trial is determined by the facts of the case and by weighing each of the factors addressed above. Zimmerman, ¶ 38. We conclude that the State’s failure to submit the lab analysis for 102 days 17 following Mayes’ arrest, while not proven to be in deliberate bad faith, weighed very heavily against the State in the balancing of Areigwe factors. These charges were simple and the State’s reasons for delay, backlog at the State Crime Lab and an unexplained failure to timely submit the evidence, were insufficient when balanced against rehabilitative opportunities Mayes was unable to participate in as a result of the unresolved drug charges. When we consider the State’s reason for the delay, the simplicity and nature of the charges, the prejudice to Mayes by his inability to participate in drug rehabilitation programs and community placement, in conjunction with Mayes’ obvious need for treatment, we conclude that Mayes was denied his right to a speedy trial. ¶26 The remedy for violation of a speedy trial is dismissal of the charges. Betterman, ¶ 24. We therefore reverse the District Court’s denial of Mayes’ motion to dismiss and remand for dismissal of the charges. /S/ LAURIE McKINNON We Concur: /S/ JAMES JEREMIAH SHEA /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER Justice Jim Rice, dissenting. ¶27 The complex and unwieldy Ariegwe test can lead to a parsing of the speedy trial inquiry into such minute pieces that it is easy to lose sight of the big picture. Indeed, as the U.S. Supreme Court has cautioned, the speedy trial factors that make up our Ariegwe 18 test “have no talismanic qualities.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193. The big picture we should see here is that the State was ready to try this felony case less than seven months after Mayes’ not guilty plea put this case on a track for trial, even with the delays associated with the Crime Lab, and, unlike in Velasquez, there was absolutely no impairment to the “most serious” interest to be protected by the speedy trial right—the ability of Mayes to present an effective defense. Ariegwe, ¶ 98; Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692. For these and other reasons stated below, I would affirm. ¶28 The situation with the Crime Lab was likewise not the same as in Velasquez. There, the 309-day delay was occasioned when the prosecution failed to act “after learning of and ‘repeatedly’ confirming the nine-month delay” in processing the evidence, but doing nothing in response. Velasquez, ¶ 19. Here, after an initial unquantified delay in processing that arose when the Crime Lab advised that it could not accept Mayes’ syringe in its original condition, and that the contents would need to be extracted and re-packaged in a different container, the Crime Lab processed the evidence in just four months, providing a report on March 23, 2015—far less time than required in Velasquez. Although by then a trial date was not available for another two months (May 19), that delay was not caused by any lack of diligence by the State. ¶29 The Court assesses the State’s conduct as lying somewhere between bad faith and lack of diligence, classifying it as not “merely a lack of diligence.” Opinion, ¶ 11. This underscores the vague subjectivity inherent in the Ariegwe analysis, dealing with, in its own words, “gradations of culpability.” Ariegwe, ¶ 71. Critically, however, the Court 19 does not explain how this deficiency on the part of the State matters—how Mayes was ultimately prejudiced. Despite any lack of diligence on the part of the State, the Crime Lab produced the evidence in less time than expected, and Mayes’ interests did not suffer. ¶30 Unlike the Court, I would credit the District Court’s findings of fact on these issues. The District Court rejected Mayes’ arguments about bad faith and lack of diligence, finding Mayes “did not offer any evidence to show a lack of diligence on the part of the prosecution. The Defendant did not argue that the State failed to submit its alleged drug evidence to the crime laboratory in a timely manner.” Given this lack of evidence and argument in the District Court, and the nature and duration of the delay here as compared to Velasquez, I agree with the District Court in not weighing the delay in this case “heavily” against the State, as the Court does. Opinion, ¶ 11. ¶31 The Court also weighs against the State the impact upon Mayes’ ability to seek program placement, rejecting the District Court’s findings of facts and conclusions of law. Opinion, ¶¶ 16–19. However, the record is clear that, while screened for DOC programs before and after his arrest, Mayes’ initial inability to access programs resulted from his arrest, on August 7, and continued for that reason at least four months, through December 11, when his parole violation hearing (probable cause) was conducted. Even thereafter, Mayes was placed on a “parole hold” and subjected to further DOC detention until parole board hearings could be conducted, adding to the delay attributable to his arrest. Although Mayes may then have been able to post bail, he offered no proof that he could or would have done so, especially in light of the “parole hold.” As the District 20 Court found, Mayes “was subject to continued custody regardless of the fact that the original trial date was vacated.” Further, the District Court found that Mayes’ program argument “was not supported by any evidence to identify particular programs at issue or to demonstrate the Defendant’s eligibility for such assistance.” The Court overturns the District Court’s findings on the basis of very thin and, in my view, inconclusive testimony. Opinion, ¶ 17. However, even if, in fact, Mayes sufficiently established his eligibility for programs, any delay in accessing them associated exclusively with the State’s delay in this criminal proceeding was minimal, and I agree with the District Court that it was not extensive enough to be considered oppressive. See State v. Maloney, 2015 MT 227, ¶ 32, 380 Mont. 244, 354 P.3d 611. ¶32 The Court agrees with the District Court that there was no evidence establishing aggravation of anxiety and concern. Opinion, ¶ 21. Further, it affirms the District Court’s finding that Mayes’ ability to present an effective defense was not hindered in any way. Opinion, ¶ 24. The Court neglects to recognize the importance of this final factor, which, as cited above, has been generally acknowledged by the U.S. Supreme Court and this Court as the most important consideration of prejudice. See Barker, 407 U.S. at 532, 92 S. Ct. at 2193; Doggett, 505 U.S. at 654, 112 S. Ct. at 2692; Billman, ¶¶ 68–69. Thus, it should be accorded significant weight. ¶33 Making these adjustments in the weight to be given to the Ariegwe factors, I would conclude that the record demonstrates that the factors do not weigh in Mayes’ favor. But beyond that, I believe it more important to recognize that the speedy trial factors are not to be “talismanic” in their effect, especially if they hinder seeing the big 21 picture. The delays that occurred in this case are simply not out of the ordinary for the prosecution of a felony case in Montana. Mayes did not demonstrate significant prejudice. I would affirm. /S/ JIM RICE Justice Beth Baker joins in the dissenting Opinion of Justice Rice. /S/ BETH BAKER	November 29, 2016
8994e8d1-a881-4bac-8351-71a1447c22e0	BUHL v WARM SPRINGS STATE HOSPITAL	N/A	88-388	Montana	Montana Supreme Court	No. 88-388 TM THE SUPREME COIJRT OF THE STATE OF MONTANA -- LTEANNIE BUHL , Claimant and Appellant, -vs- WARM SPRINGS STATE HOSPIT'AL, 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: Greg J. Skakl-es; Johnson, Skakles & Rehe, Anaconda, Monta~a For Respondent: Chris D. Tweeten, Agency 1,eqal Services Bureau, Helena, ZMontana a= Filed: E ' J lL1 h* - . .- Submitted on Briefs: Feh. 3, 1989 Decided: March 7, 1989 0 - " Clerk Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Claimant Jean Ann Buhl was injured while en route to her employment at Warm Springs State Hospital and filed a workers1 compensation claim for temporary disability pay for the several months of work she missed due to the injuries from the accident. Benefits were denied. The case was submitted to the Workers1 Compensation Court on an agreed set of facts. The parties agreed that the only issue to be determined was whether the claimant suffered injury in the course and scope of her employment. The Workers1 Compensation Court ruled that she did not. Claimant appeals. We affirm. The only issue on appeal is whether the Workerst Compensation Court erred as a matter of law when it concluded that claimant's conduct at the time of her injury was not within the course and scope of her employment and that it did not come under any exception to the "going and cominggt rule. On August 10, 1985, claimant was riding to work as a passenger in a car driven by co-employee Sue Graves down Highway 48 in Montana from their residence in Anaconda to their employment site at Warm Springs. They were scheduled to go on duty at 3:00 p.m. that afternoon. En route to Warm Springs, they saw a fellow employee, Gene Evans, with his car parked alongside the highway with the hood up. Claimant and the driver mutually agreed to stop their car to see if they could render assistance to their stranded co-worker. Claimant was sitting inside Graves's parked car when the car was struck by another car. Claimant was injured in that collision. Claimant argues first that it was the employment relationship that motivated them to stop Graves's car, and that secondly, by so aiding a fellow employee get to work on time, she was conferring a benefit upon the employer. Both of these bring this conduct under an exception to the "going and coming'l rule, according to claimant. We disagree. To be compensable an injury generally must occur within the course and scope of employment, section 39-71-407, MCA (1985), and travel to work and coming home from work ("going and comingl1) is not within the course and scope of employment, Griffin v. Industrial Accident Board (1940), 111 Mont. 110, 106 P.2d 346. Exceptions may apply when additional factors are present, such as when the employer pays for or provides the employee's transporta- tion. Correa v. Rexroat Tile (Mont. 1985), 703 P.2d 160, 42 St.Rep. 1075; Gordon v. H. C. Smith Construction Co. (1980), 188 Mont. 166, 612 P. 2d 668. In the instant case, claimant was not compensated by the employer for time spent in transit. The accident occurred while she was off duty and off of the employer's premises. On facts very similar to these, this Court denied compensation to the claimant based on the "going and coming1' rule. Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 570 P.2d 893. In that case, the claimant was an employee at Galen State Hospital who commuted twelve miles to work every day from her residence in Anaconda. She was not personally compensated by the employer for her commuting expenses. She was injured in an auto accident en route to work one day and filed a claim with her employer for compensation. We affirmed the denial of benefits stating: Throughout the years this State has had work- ers' compensation, this Court has considered a number of cases where injuries were sus- tained going to or coming from work and has found no recovery unless employee travel pay was covered under the employment contract or that travel allowance was for travel for the special benefit of the employer. [Citations omitted. ] Unless transportation is made a part of the employment contract or travel to and from work is recognized by legislative enactment or contract, any injuries suffered in such travel are outside the course and scope of the em- ployment. Haqerman, 174 Mont. at 251, 570 P.2d at 894. The Workers' Compen- sation Court specifically noted that this case was within the Haqerman rule when it denied benefits to claimant. Claimant argues that her case fits the Ifspecial benefit1' exception articulated in Haqerman because she conferred a reasonab- ly immediate service to her employer. She argues that she was injured while attempting to help a fellow employee get to work on time, completing the work force for the benefit of the employer. The Workers' Compensation Court rejected that argument stating: "If merely securing the employee's presence at work is in every case a 'special benefit,' the exception swallows up the rule." Because of this, the court found that no exception to the general rule applied based on claimant's conduct at the time of her injury. We agree. As we stated in Ogren v. Bitterroot Motors, Inc. (Mont. 1986) , 723 P.2d 944, 947, 43 St.Rep. 1467, 1471: "It is hard to imagine how traveling to one's regular work place on a regular workday can be for the special benefit of an employer." Thus, claimant's conduct in this case is dispositive. No exception to the general rule would apply under these facts for conduct securing her or Evans' presence at work at their regularly scheduled time. The Workers' compensation Court is affirmed on that ruling. Here, it should be noted that this case was submitted on an agreed set of facts which do not support claimant's primary theory: that the purpose of the stop was to aid Evans in getting to work on time, although that might be inferred as one reason for stopping from the context of all the facts taken together. The facts generally indicate that stopping was a voluntary choice by Graves, for humanitarian purposes, because a motorist was stranded. They do not indicate that claimant was concerned with Evans1 timely arrival at work, nor do they indicate that Graves would have passed him by had he not been scheduled to work at 3:00 p.m. However, the facts point out that the employer did not request, require, or know of claimant's conduct, and that there is a total lack of employer participation in the activity causing injury . Claimant next argues that her injury is compensable because her conduct was of "mutual benefit" to the employer and herself and is thus another possible exception to the going and coming rule. We disagree. The "mutual benefit" exception was recently discussed in Lassabe v. Simmons Drilling, Inc. (Mont. 1987), 743 P.2d 568, 570- 571, 44 St.Rep. 1369, 1372, where we stated: . . . because when some advantage to the employer results from the employee's conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment. Citing, Guarascio v. Industrial Accident Board (1962), 140 Mont. 497, 501, 374 P.2d 84, 86. However, this rule is inapplicable for the reasons addressed above. Simply securing the employee's presence at work cannot be a I1special benefit" or an I1advantage" to the employer. Under these facts, the work area is not a danger zone, such as a construction site; nor is it an entirely remote area, such as a drilling site. The employer in this case is wholly removed from transportation responsibilities and can reasonably expect that employees secure their own transportation to and from work. Such transportation is not within the course and scope of the employment. Absent any additional factors, injuries occurring during transit are not compensable. Because this case turns on claimant's Iftravel statust1 at the time of injury, and because we have already affirmed that no exceptions can apply to her conduct, we decline discussion on claimant's four remaining proposed exceptions. Claimant's conduct is too far removed from any benefit or logical nexus to the employer to bring this case within an excep- tion to the ''going and corning1' rule. Her injury is not compensable under our scheme of workers' compensation. Benefits were properly denied. Judgment affirmed. Chief Justice We concur: Justices B	March 7, 1989
89690f71-5dae-4feb-8f44-ab7e17a035ec	City of Red Lodge v. Pepper	2016 MT 317	DA 15-0167	Montana	Montana Supreme Court	DA 15-0167 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 317 CITY OF RED LODGE, Plaintiff and Appellee, v. GEREMY LEE PEPPER, Defendant and Appellant. APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Carbon, Cause No. DC 14-49 Honorable Blair Jones, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Haley Connell Jackson, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Mardell L. Ployhar, Assistant Attorney General, Helena, Montana Joel Todd, Red Lodge City Attorney, Hope Freeman, Deputy City Attorney, Red Lodge, Montana Submitted on Briefs: November 10, 2016 Decided: December 6, 2016 Filed: __________________________________________ Clerk 12/06/2016 Case Number: DA 15-0167 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Appellant Geremy Lee Pepper (Pepper) appeals from an order entered in the Twenty-Second Judicial District Court, Carbon County, denying his motion to dismiss. The issue to be determined on appeal is whether Pepper’s statutory right to speedy trial guaranteed under § 46-13-401(2), MCA, was violated. We affirm.1 PROCEDURAL BACKGROUND ¶2 Pepper was charged with two counts of theft and two counts of deceptive practices in the City Court of Red Lodge on March 26, 2014. The charges alleged that Pepper made purchases on two credit cards that did not belong to him. Pepper pleaded not guilty to the offenses on April 3, 2014, at his initial appearance. ¶3 The City Court issued its first scheduling order on April 25, 2014, directing the Appellee City of Red Lodge (City) to provide discovery by May 22, 2014; setting an omnibus hearing for July 3, 2014; setting a motions hearing for July 31, 2014; and a jury trial for August 15, 2014. ¶4 The City provided Pepper with some discovery on April 16, 2014. However, missing from that discovery was a recorded interview of Pepper, recorded interviews of several witnesses; a video that allegedly showed one of the criminal acts; written statements from Pepper and a witness; and a police report. On June 19, 2014, Pepper’s counsel sent a letter to the City’s attorney informing her of the several key pieces of missing discovery which had not been provided in compliance with the court’s 1 We remand for the limited purpose of conforming the written judgment to the oral pronouncement of Pepper’s sentence. 3 scheduling order. Pepper’s counsel also communicated to the City’s attorney by email that given the amount of discovery outstanding, she planned to continue the omnibus hearing, “along with other deadlines in the Scheduling Order,” and asked if there was any objection. The City’s attorney did not object. ¶5 On July 3, 2014, Pepper filed a Motion to Vacate Scheduling Order and Reset Omnibus. The motion detailed the numerous items of discovery still not produced by the City, and requested “the Court to vacate the deadlines in the April 25, 2014 Scheduling Order and reset the omnibus hearing in this matter.” Pepper’s counsel indicated that “[g]iven the dearth of information currently in Defendant’s possession, Defendant does not have the ability to address the issues that should be discussed during the omnibus hearing.” The court granted Pepper’s motion and rescheduled an omnibus hearing for August 7, 2014, but did not vacate or address any of the other dates set forth in the April 25, 2014 scheduling order. ¶6 On July 15, 2014, Pepper’s counsel sent another email to the City’s attorney and inquired, again, of the missing discovery. The City responded that the officer involved in the case had been on vacation, but that the missing discovery would be provided shortly. Pepper subsequently received the City’s entire discovery on July 30, 2014. Thereafter, on August 6, 2014, Pepper filed a Motion for Scheduling Order requesting a new motions deadline; new motions hearing; and a new trial date. Pepper represented that he now had the necessary discovery to prepare his motion to suppress. 4 ¶7 On August 8, 2014, the City Court issued a second scheduling order that set a motions deadline of August 21, 2014; an omnibus hearing of September 11, 2014; a final pretrial hearing of September 25, 2014; and a jury trial of September 26, 2014. ¶8 On September 16, 2014, the City filed a motion to continue trial, representing that one of its witnesses had moved to Arizona and that the jury trial date of September 26, 2014, did not allow sufficient time to purchase an airline ticket without being cost prohibitive. Pepper objected to any continuance. The court addressed the City’s request for continuance at the motions hearing and inquired whether any party had previously moved for a continuance. In response to the City’s representation that he had previously requested a continuance, Pepper maintained that he had to ask for the continuance in order to prepare his motion to suppress because the City had not complied with discovery deadlines previously imposed by the court. After considering that the City Attorney was not available for trial on dates which would have been within the six-month statutory speedy trial deadline—as well as the need for the court to have adequate time to consider the motion—the court set Pepper’s jury trial for October 31, 2014, nearly one month outside the six-month statutory speedy trial period. ¶9 On October 23, 2014, Pepper filed a motion to dismiss due to a violation of his statutory six-month speedy trial right. The City Court denied Pepper’s motion, concluding that the speedy trial statute was inapplicable because Pepper had requested a new scheduling order. Additionally, the court found good cause because of the financial hardship to secure a material witness and the need to consider and resolve Pepper’s 5 motion to suppress, which was more complicated than initially appeared from the written submissions of the parties. ¶10 Pepper was tried on October 31, 2014, and found guilty of one count of deceptive practices. Following imposition of sentence in City Court, Pepper appealed his conviction to the District Court. The District Court stayed Pepper’s sentence pending the outcome of his appeal. Pepper challenged on appeal, among other issues, the City Court’s denial of his motion to dismiss for violation of his statutory speedy trial right. The District Court affirmed the City Court’s order. Pepper appeals to this Court the denial of his statutory speedy trial right under § 46-13-401(2), MCA, and to conform the oral pronouncement of his sentence with the written judgment. STANDARDS OF REVIEW ¶11 On appeal from a municipal court, the district court functions as an intermediate appellate court. Sections 3-5-303, 3-6-110, MCA; City of Kalispell v. Gabbert, 2014 MT 296, ¶ 12, 377 Mont. 17, 338 P.3d 51. In its appellate capacity, the district court is confined to review of the record and questions of law. Section 3-6-110, MCA; Gabbert, ¶ 12. When reviewing the decision of the district court in such an appeal, we review the case as if the appeal had originally been filed in this Court, applying the appropriate standard of review. Gabbert, ¶ 12; City of Helena v. Broadwater, 2014 MT 185, ¶ 8, 375 Mont. 450, 329 P.3d 589. ¶12 Whether the statutory right to a speedy trial has been violated is a question of law. Gabbert, ¶ 13; State v. Luke, 2014 MT 22, ¶ 10, 373 Mont. 398, 321 P.3d 70; State v. 6 Zimmerman, 2014 MT 173, ¶ 11, 375 Mont. 374, 328 P.3d 1132. We review the trial court’s legal conclusions to determine whether the court’s interpretation of law is correct. Gabbert, ¶ 13. The trial court’s underlying factual findings are reviewed to determine whether those findings are clearly erroneous. Gabbert, ¶ 13. DISCUSSION ¶13 Pepper argues that his right to a speedy trial pursuant to § 46-13-401(2), MCA, was violated. Section 46-13-401(2), MCA, provides: After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months. ¶14 This Court has explained that § 46-13-401(2), MCA, mandates the dismissal of any misdemeanor charge not brought to trial within six months only if two conditions are met: (1) the defendant has not asked for a continuance; and (2) the State has not shown good cause for the delay. City of Helena v. Roan, 2010 MT 29, ¶ 9, 355 Mont. 172, 226 P.3d 601. We have also explained that “any pretrial motion for continuance filed by a defendant which has the incidental effect of delaying the trial beyond the six month time limit could be said to ‘postpone trial’ for purposes of § 46-13-401(2), MCA.” State v. Fitzgerald, 283 Mont. 162, 166-67, 940 P.2d 108, 111 (1997). In Fitzgerald, the defendant filed two requests to continue the omnibus hearing which had the incidental effect of continuing the trial. Although finding that the trial date fell within the “good cause to the contrary exception” of § 46-13-401(2), MCA, this Court rejected Fitzgerald’s suggestion that we limit the statutory speedy trial right to only those cases where a 7 defendant specifically requests that a trial date be extended beyond the six-month period. In City of Helena v. Heppner, 2015 MT 15, ¶ 16, 378 Mont. 68, 341 P.3d 640, however, we specifically determined the statutory speedy trial right is inapplicable where a defendant files a motion to vacate his trial date for a change of plea. Because Heppner had moved to vacate the initial trial date for a change-of-plea hearing and then moved, first individually and then jointly with the State, to continue the change-of-plea hearing, we determined that Heppner’s actions removed him from the statutory protections of § 46-13-401(2), MCA. ¶15 Pepper filed a motion to continue the omnibus hearing and requested that all of the dates in the scheduling order be vacated. These dates included the motions hearing and scheduled trial date. Although Pepper argues he was forced to request the continuance because the City had not provided its discovery in time for him to prepare his motion to suppress, Pepper could have raised any discovery violations at the omnibus hearing without implicating or otherwise jeopardizing his statutory right to a speedy trial under the statute. In light of the clear and unequivocal language of § 46-13-401(2), MCA, which conditions mandatory dismissal on the defendant having not previously filed a motion which causes the trial to be postponed, Pepper should have availed himself of other options: for example, a motion to compel discovery or a motion for sanctions. Instead of pursuing either of these options, Pepper chose to file a motion to vacate all of the scheduled dates, including the trial date. ¶16 The plain language of § 46-13-401(2), MCA, allows for dismissal on speedy trial grounds only if “trial has not been postponed upon the defendant’s motion.” Here, it is 8 undisputed that Pepper filed at least one motion to continue and to vacate the trial date. Therefore, under the plain language of the statute, Pepper is not entitled to rely on § 46-13-401(2), MCA, for dismissal of his charges. ¶17 As a final matter, Pepper maintains his written judgment does not accurately reflect the sentence the City Court imposed and requests this Court to order the City Court to amend the written judgment. At Pepper’s sentencing hearing, the City Court sentenced Pepper to six months at Yellowstone County Detention Facility (YCDF), with all but twenty days suspended, and did not prevent Pepper from participating in the YCDF work program. The written judgment, however, orders Pepper to serve six months at YCDF “with all but twenty (20) days of jail unsuspended” and that the “work program at YCDF is not authorized.” The State has not responded to this issue. As the sentence orally pronounced from the bench in the presence of the defendant is the legally effective sentence and the oral pronouncement controls, State v. Lane, 1998 MT 76, ¶ 40, 228 Mont. 286, 957 P.2d 9, we remand for correction of the written judgment. See also § 46-18-116(3), MCA. CONCLUSION ¶18 The City Court did not err in determining that Pepper waived his right to the six-month speedy trial requirement of § 46-13-401(2), MCA, when he filed on July 3, 2014, his motion to vacate the scheduling order and to reset the omnibus hearing. Because Pepper filed a motion to vacate the scheduling order which included the trial date, he may not avail himself of the statutory protections afforded by § 46-13-401(2), 9 MCA. For this reason, it is not necessary to address whether the City had good cause for continuing the September 26, 2014 trial date. ¶19 The order of the District Court affirming the City Court’s denial of Pepper’s motion to dismiss is affirmed. We remand, however, for correction of the written judgment to conform to the City Court’s oral pronouncement of Pepper’s sentence. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE	December 6, 2016
c63167a0-ebe9-4c6f-b0e2-18153a935a28	J & C Moodie Properties, LLC v. Deck	2016 MT 301	DA 16-0051	Montana	Montana Supreme Court	DA 16-0051 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 301 J & C MOODIE PROPERTIES, LLC, a Montana limited liability company, Plaintiff and Appellee, v. STANLEY DECK, JUNE DECK, DICKINSON BROADCAST CORPORATION, a North Dakota corporation, DAVE CAMPBELL, d/b/a CAMPBELL REALTY, a Montana company, HESSLER ARCHITECTS, a Montana corporation, NCI ENGINEERING, INC., a Montana corporation, EVERSON-CORDEIRO ENGINEERING DESIGN, a Montana company, MOUNTAIN STATES CONCRETE, a Montana company, WADSWORTH BUILDERS COMPANY, INC., a Montana corporation, ALPHA PARTNERS LLC, a Montana limited liability company, NUCOR BUILDING SYSTEMS UTAH LLC, SCOTTSDALE INSURANCE COMPANY, and JOHN DOES 1-99, Defendants and Appellants. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDV 2012-0751 Honorable James A. Haynes, Presiding Judge COUNSEL OF RECORD: For Appellanst: Bradley J. Luck, Kathleen L. DeSoto, Garlington, Lohn & Robinson, PLLP, Missoula, Montana Robert H. King, Jr., Dentons US LLP, Chicago, Illinois (Attorneys for Scottsdale Insurance Company) For Appellee: James C. Cumming, Cumming Law Firm, Helena, Montana 11/22/2016 Case Number: DA 16-0051 2 Submitted on Briefs: September 7, 2016 Decided: November 22, 2016 Filed: __________________________________________ Clerk 3 Justice Jim Rice delivered the Opinion of the Court. ¶1 The above-named Appellants (collectively Defendants), including Scottsdale Insurance Company (Scottsdale), appeal the decision of the Eighth Judicial District Court, Cascade County, granting summary judgment in favor of J & C Moodie Properties, LLC (Moodie) on issues related to Scottsdale’s duty to defend. We affirm in part, reverse in part, and remand for further proceedings. ¶2 We consider the following issues: 1. Did the District Court err by holding that Scottsdale breached its duty to defend its insured? 2. Did the District Court err by holding there were no grounds for a reasonableness hearing regarding the stipulated judgment? 3. Did the District Court err by ruling that Scottsdale was not entitled to conduct discovery regarding the reasonableness determination? FACTUAL AND PROCEDURAL BACKGROUND ¶3 Moodie hired Haynie Construction (Haynie), owned by Kyle Haynie, as general contractor to construct a building for Moodie’s farm equipment dealership. Haynie’s commercial business was insured by two different insurance companies during the course of Haynie’s work on the project. Mountain West Farm Bureau (Farm Bureau) insured Haynie under a policy that was in effect from April 22, 2008, to April 22, 2009. Scottsdale insured Haynie under a policy that was effective from April 29, 2009 onward, until it was cancelled on February 18, 2010. The Scottsdale policy contained a $1,000,000 limit of liability per occurrence, subject to a $2,000,000 aggregate limit. There was no overlap in the effective periods of the two policies insuring Haynie. 4 ¶4 In August 2008, Moodie entered into a buy/sell agreement to purchase a parcel of land on which to build the dealership building, and the transaction closed on July 18, 2009. Haynie conducted some construction work during the effective period of the Farm Bureau policy. The building project was completed in September 2009, while the Scottsdale policy was in effect. ¶5 In October 2012, Moodie filed the instant action against Haynie, asserting various construction defect claims regarding the construction project. Moodie filed its second amended complaint in February 2013, asserting intertwining claims against Haynie, Kyle Haynie personally, and Russell Country Realty, which was partly owned by Kyle Haynie.1 ¶6 According to the affidavit of Jon Reamer (Reamer Affidavit), a Director of Claims for Scottsdale, Scottsdale received a Notice of Claim “indicating Moodie Implement Company had presented a claim against Haynie in the captioned District Court action” on March 6, 2013. Scottsdale acknowledged receipt of the claim the same day. ¶7 The Reamer Affidavit further attests to “several contacts” between Scottsdale and Kyle Haynie, on behalf of Haynie, following the receipt of the Notice of Claim. First, on March 21, 2013, Kyle Haynie informed Scottsdale that Farm Bureau had filed an Answer on behalf of Haynie and assigned an incident number to the claim. Second, on March 25, 2013, Kyle Haynie informed Scottsdale that his first contract “as general contractor on the Moodie Implement project was dated February 15, 2009, prior to the inception of the 1 Russell Country Realty was added as a party defendant by Moodie’s third amended complaint, filed on August 4, 2014. 5 Scottsdale coverage.” Scottsdale averred that, during this second conversation, Kyle Haynie was advised, and he acknowledged, that Scottsdale’s policy did not cover operations prior to April 29, 2009, and that Kyle Haynie advised Scottsdale that Farm Bureau “would be defending him in the action.” Kyle Haynie attested that he “never told Scottsdale or anyone else that [he] agreed Scottsdale does not owe a duty to defend [his] company.” ¶8 On May 20, 2013,2 Scottsdale sent Haynie a letter formally denying coverage. The letter advised Haynie that Scottsdale had “determined that there is no coverage available for the presently pending claims against you in this matter.” The letter stated the “Designated Operations Exclusion” of Scottsdale’s policy excluded coverage for damages “arising out of any and all operations prior to the inception of this policy. . . . Therefore, this exclusion will act to bar coverage for this matter and Scottsdale will not defend and/or indemnify you for this matter.” The letter concluded by advising Haynie that if it believed “this coverage determination to be inaccurate, or that the claim has been wrongfully disclaimed or rejected in whole or in part, you [Haynie] may have the matter reviewed by the State Department of Insurance within the pertinent jurisdiction,” and requested that Haynie provide any information or documentation to Scottsdale if the facts or circumstances changed. Scottsdale presented no evidence that it took any additional 2 The letter’s stated date is May 20, 2012, but the parties stipulated that the correct date was May 20, 2013. 6 actions in furtherance of Haynie’s defense.3 Scottsdale’s next action of any kind was its notice of appearance in this litigation, filed May 19, 2015. ¶9 By discovery responses dated June 20, 2013, Haynie disclosed to Moodie that Scottsdale had refused to defend and indemnify Haynie, and that Farm Bureau was defending the action, but would be issuing a reservation of rights letter. That same day, Farm Bureau provided the letter to Haynie, advising that it would provide a defense through attorney Curt Drake (Drake) because some of the claims alleged may fall under the Farm Bureau policy. However, the letter stated as follows: Mountain West Farm Bureau Mutual Insurance Company expressly reserves its rights with respect to the following questions concerning its duty to provide defense and indemnity under the Businessowners [sic] policies issued to you: 1. There is a question as to whether some or all of the damages alleged in the lawsuit were the result of bodily injury or property damage caused by an occurrence as those terms are defined in the policy. 2. There is a question as to whether some or all the claims asserted in the Second Amended Complaint fall within the scope of the policy’s coverage. 3. There is a question as to whether the following policy language precludes coverage: [policy provisions regarding, in particular, the “your work” exclusion and whether the damages fall within the definition of “property damage.”] Farm Bureau noted that “Some potential coverage exists for the claim of negligence. That being said, some or all of the damages alleged in the Second Amended Complaint 3 Counsel for Scottsdale stated during summary judgment oral argument that there was direct contact between Farm Bureau and Scottsdale, but there is no sworn evidence to that effect, and thus is not part of the summary judgment record. 7 may be excluded by the policy provisions cited above.” The letter concluded by informing Haynie: As noted above, some of the damages asserted against you may not give rise to coverage. Consequently, this presents the potential for personal liability on your part, and we reserve the right to deny coverage to you, and anyone claiming coverage under your policy, for any judgment falling outside the policy’s coverage. Drake represented Haynie throughout the litigation and there is no dispute he provided a competent defense. ¶10 On February 9, 2015, Haynie and Moodie jointly filed a stipulated settlement that recited (1) Moodie’s claims against Haynie; (2) Moodie’s expert witnessess’s opinion that the project was negligently constructed and that Moodie suffered $5,650,000 in damages; (3) Scottsdale’s refusal to provide a defense or coverage; (4) Haynie’s resulting substantial risk, including financial insolvency; (5) the settlement reached between Moodie and Haynie for $5,650,000; (6) Moodie’s agreement to file a covenant not to execute on such judgment; and (7) Haynie’s agreement to assign all its rights and interest in the Scottsdale policy to Moodie. Kyle Haynie attested that, as a result of Scottsdale’s refusal to provide a defense, he had “settled with Moodie to eliminate the severe risks to me and my business.” ¶11 The District Court entered judgment in the case against Haynie for $5,650,000 on March 3, 2015, and ordered that Moodie was entitled to recover all costs, fees, and interest as allowed by law. On March 12, 2015, Moodie and Haynie jointly filed a covenant not to execute on the judgment and claims. In the covenant, Moodie agreed to 8 not enforce the judgment against Haynie, Kyle Haynie personally, or Russell Country Realty, and Haynie assigned all rights and interest in the Scottsdale policy to Moodie. ¶12 Moodie filed a notice of entry of judgment on March 12, 2015. On March 24, 2015, Moodie filed its fourth amended complaint, which named Scottsdale as a defendant and requested a declaratory judgment against Scottsdale. The declaratory judgment count alleged that Scottsdale had breached its duty to defend, Haynie had entered a stipulated judgment due to Scottsdale’s failure to defend, the judgment was reasonable and negotiated in good faith, and Scottsdale was liable for the stipulated judgment. ¶13 Scottsdale moved for summary judgment to dismiss the declaratory judgment count and sought discovery regarding the reasonableness of the settlement. Moodie cross moved for summary judgment on the same count and requested a protective order to bar discovery. Scottsdale argued that it was in an excess position and did not have a duty to defend under its excess coverage clause,4 it did not unjustifiably breach its duty to defend, the stipulated judgment was not reasonable and could not survive summary judgment, and it was entitled to discovery regarding the reasonableness of the stipulated judgment. ¶14 The District Court ruled in favor of Moodie on all issues, holding that Scottsdale had a duty to defend Haynie, Scottsdale breached that duty unjustifiably, the stipulated judgment was reasonable, and Scottsdale was not entitled to discovery regarding the 4 Scottsdale’s position regarding its duty to defend changed from the grounds stated in its May 20, 2013 denial letter. The letter stated that the “Designated Operations Exclusion” was the reason for the denial, but its summary judgment motion argued there was no duty to defend because of the excess coverage clause of the policy. 9 reasonableness of the stipulated judgment. Scottsdale appeals all rulings of the District Court, except for the ruling that it had a duty to defend Haynie. STANDARDS OF REVIEW ¶15 A district court’s grant of summary judgment is reviewed de novo, applying the same criteria as the district court. State Farm Fire & Cas. Co. v. Schwan, 2013 MT 216, ¶ 12, 371 Mont. 192, 308 P.3d 48. Under M. R. Civ. P. 56(c), judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Roe v. City of Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200 (citing Corporate Air v. Edwards Jet Ctr., 2008 MT 283, ¶ 24, 345 Mont. 336, 190 P.3d 1111). ¶16 A material fact is a fact that involves the elements of the cause of action or defenses at issue to an extent that necessitates resolution of the issue by a trier of fact. Roe, ¶ 14 (citing Corporate Air, ¶ 24). The party moving for summary judgment has the initial burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Roe, ¶ 14 (citing Corporate Air, ¶ 25). If the moving party meets this burden, then the burden shifts to the nonmoving party to establish that a genuine issue of material fact does exist. Roe, ¶ 14 (internal quotation omitted) (citing Corporate Air, ¶ 25). ¶17 If no material facts are in dispute, the question of whether or not an insurer breached its duty to defend is a question of law. Schwan, ¶ 12 (citing Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, Inc., 2005 MT 50, ¶ 14, 326 Mont. 174, 108 P.3d 10 469). Questions of law are reviewed for correctness. State Farm Mut. Auto. Ins. Co. v. Freyer, 2013 MT 301, ¶ 22, 372 Mont. 191, 312 P.3d 403. DISCUSSION ¶18 1. Did the District Court err by holding that Scottsdale breached its duty to defend its insured? ¶19 Acknowledging it had a duty to defend Haynie, Scottsdale argues it did not breach the duty because, at all times during the litigation, Haynie was fully defended by counsel provided by Farm Bureau. Scottsdale argues that this Court’s holdings in Schwan and Westchester Surplus Lines Insurance Co. v. Keller Transportation, Inc., 2016 MT 6, 382 Mont. 72, 365 P.3d 465 [hereinafter Westchester], established that an insured is “only entitled to one full defense,” meaning that the provision of a defense by any insurer necessarily satisfies the duty to defend of any co-insurer. Thus, Scottsdale argues that because Farm Bureau fully defended Haynie throughout the litigation, Haynie was never “improperly abandoned by its insure[r] and left without a defense,” and Scottsdale did not breach its duty to defend. ¶20 “The duty to defend arises when a complaint against an insured alleges facts, which if proven, would result in coverage.” Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 21, 321 Mont. 99, 90 P.3d 381; accord Schwan, ¶ 15; Freyer, ¶ 26; Tidyman’s Mgmt. Servs. v. Davis, 2014 MT 205, ¶ 22, 376 Mont. 80, 330 P.3d 1139 [hereinafter Tidyman’s I]. “Unless there exists an unequivocal demonstration that the claim against an insured does not fall within the insurance policy’s coverage, an insurer has a duty to defend.” Staples, ¶ 22; Revelation Indus. v. St. Paul Fire & Marine, 2009 11 MT 123, ¶ 32, 350 Mont. 184, 206 P.3d 919. An insurer must defend all counts “so long as one count potentially triggers coverage, even if the remaining counts would not be covered.” Schwan, ¶ 16. An insurer’s duty to defend is “independent from and broader than its duty to indemnify.” Schwan, ¶ 15; accord Freyer, ¶ 26. ¶21 “[W]here an insurer refuses to defend a claim and does so unjustifiably, that insurer becomes liable for defense costs and judgments.” Newman v. Scottsdale Ins. Co., 2013 MT 125, ¶ 30, 370 Mont. 133, 301 P.3d 348 (quoting Staples, ¶ 27); accord § 28-11-316, MCA; Tidyman’s I, ¶ 23; Westchester, ¶ 30; Lee v. USAA Cas. Ins. Co., 2004 MT 54, ¶ 19, 320 Mont. 174, 86 P.3d 562; Indep. Milk & Cream Co. v. Aetna Life Ins. Co., 68 Mont. 152, 157, 216 P. 1109, 1110 (1923) (“The refusal of the insurer to defend the action was unjustified and it did so at its peril. It constituted a breach of the contract and the respondent clearly was entitled to recover such damages as were the natural and ordinary consequence of the breach.”). “[W]hen an insurer improperly abandons its insured, the insured is justified in taking steps to limit his or her personal liability.” Freyer, ¶ 34 (quoting Old Republic Ins. Co. v. Ross, 180 P.3d 427, 433 (Colo. 2008)); accord Westchester, ¶ 33; Tidyman’s I, ¶ 25. “In other words, where an insurer refuses to defend its insured, it does so at its peril.” Tidyman’s I, ¶ 24; accord Indep. Milk & Cream Co., 68 Mont. at 157, 216 P. at 1110. ¶22 If an insurer believes a policy exclusion applies, the prudent course of action is to defend under a reservation of rights and file a declaratory action to resolve the coverage question. Freyer, ¶ 37 (“[W]e have repeatedly admonished insurers to [defend the insured and file a declaratory action to discern coverage] if there is a coverage 12 question.”); Staples, ¶ 28; Diacon ex rel. Palmer v. Farmers Ins. Exch., 261 Mont. 91, 102, 861 P.2d 895, 902 (1993); St. Paul Fire & Marine Ins. Co. v. Cumiskey, 204 Mont. 350, 358, 665 P.2d 223, 227 (1983) (“In a proper case, an insurer may use [a declaratory action] in order to obtain a determination of the validity, continuance, or coverage of an insurance policy; a determination of the extent of liability; or a determination of the insurer’s duties under the policy.”); see also Nielsen v. TIG Ins. Co., 442 F. Supp. 2d 972, 977 (D. Mont. 2006) (noting this Court’s admonition to use declaratory actions to resolve coverage questions). ¶23 In Schwan, on which Scottsdale relies, we held the insurer did not breach its duty to defend, despite not hiring counsel for its insureds, because its actions in coordinating with the insureds’ other defense counsel “gave the necessary substance to the duty to defend and fulfilled its contractual duty to the [insureds] under the policy.” Schwan, ¶ 20. The Schwan plaintiffs argued and the district court ruled that the insurer, State Farm Fire and Casualty Company (State Farm Fire), breached its duty to defend the defendants by not “retain[ing] separate counsel for the [defendants] in the [underlying tort action] or contribut[ing] financially to payment of [the other insurer’s retained counsel’s] legal fees.” Schwan, ¶ 11. However, State Farm Fire engaged in discussions with the insureds’ co-insurer, confirmed the co-insurer did not need assistance and was defending the insureds on all claims, committed to assuming the defense if the co-insurer discontinued its defense, participated in settlement discussions, and kept the insured advised of its actions. Schwan, ¶ 19. State Farm Fire also filed a declaratory action to determine coverage and hired coverage counsel for the insureds, even though not 13 required to do so under the policy. Schwan, ¶¶ 9, 19. We reasoned that the insureds had not been “left unprotected or . . . prejudiced” by State Farm Fire’s actions, Schwan, ¶ 20, and the duty to defend had not been breached, Schwan, ¶ 25. ¶24 In Westchester, we held that Westchester Surplus Lines Insurance Company had not breached its duty because “[t]he facts of this case demonstrate that the insureds were not ‘improperly abandoned’ by their insurers and left without a defense such that they would be ‘justified in taking steps to limit their personal liability’ by entering a stipulated judgment.” Westchester, ¶ 33 (quoting Freyer, ¶ 34). Westchester, an excess carrier, assumed defense of the insured when the primary insurer’s policy limits were reached, issued a reservation of rights letter explaining it would defend up to its facial policy limits of $4 million, litigated the matter until the facial limits were exhausted, transferred the case back to the primary insurer, who assumed the defense, and joined the primary insurer in a declaratory action to determine coverage when plaintiffs claimed there was additional coverage. Westchester, ¶¶ 4–8. Between Westchester and the primary insurer, the insureds’ legal costs, though delayed, were completely paid and the insured had legal representation up to the entry of the stipulated judgment between the insured and plaintiffs. Westchester, ¶ 31. ¶25 In arguing it did not breach the duty to defend, Scottsdale urges a laser-like focus on the fact that Haynie was represented by counsel, overlooking our holding in Schwan that legal representation of the insureds by a co-insurer “[did] not mean that State Farm Fire’s duty to defend the [insureds] was extinguished by the defense provided by [the co-insurer].” Schwan, ¶ 17. Rather, we reviewed all of the facts in the matter to 14 determine “whether State Farm Fire fulfilled [its] duty [to defend] by the actions it took,” Schwan, ¶ 14, and ultimately determined that it provided the “necessary substance” of its contractual duty, Schwan, ¶ 20. Similarly, in Westchester, we concluded that “[t]he facts of this case demonstrate that the insureds were not ‘improperly abandoned’ by their insurers.” Westchester, ¶ 33 (quoting Freyer, ¶ 34). The same conclusion cannot be reached from a review of Scottsdale’s actions here. ¶26 After receiving notice of the claim, Scottsdale spoke with Kyle Haynie on March 21, 2013, learning that Farm Bureau had assigned a claim number to the matter and filed an Answer on behalf of Haynie, and again on March 25, 2013, when it learned that the construction contract had been signed before the inception of its policy period and that Farm Bureau was undertaking defense of Haynie. Doing nothing more, on May 20, 2013, Scottsdale denied coverage pursuant to the “Designated Operations Exclusion” of its policy, and did nothing further until it was named as a defendant in this action following entry of the stipulated judgment. ¶27 Clearly, the factual assertions of Moodie’s claim included alleged actions by Haynie within Scottsdale’s policy period: the policy became effective on April 29, 2009, and construction was not completed by Haynie until September 2009. Yet, contrary to what we have “repeatedly admonished insurers,” Freyer, ¶ 37, Scottsdale did not seek a declaratory ruling to confirm its internal coverage determination. A declaratory action could have been brought early in the litigation—either upon tendering a defense to Haynie upon reservation of rights, or while letting Farm Bureau take the lead in defending Haynie—to resolve the coverage issue and confirm whether Scottsdale had a 15 duty to defend. Failing that, Scottsdale provided no other assistance whatsoever to its insured related to the defense. As the District Court found, “Scottsdale can point to no evidence of actions it took to assist or participate in its insured’s defense.” Unlike the insurers in Schwan and Westchester, Scottsdale made no effort to contact the co-insurer to further understand the claims, offered no coordination, and provided no other defense support pending a ruling that would affirmatively confirm whether coverage existed under the policy. It simply made the unilateral decision that it was done. ¶28 An insurer must ensure an insured is defended, as the insurer in Schwan did, even as it disputed coverage. Scottsdale did nothing to honor the contractual benefit that Haynie had secured under the policy, or to confirm that it had no obligation to do so. When an insurer defends the insured, it also defends itself against a duty to defend claim. Scottsdale’s decision to “roll the dice” on its opinion that Haynie was not insured under the policy exposed Haynie, and itself, to great risk. ¶29 Scottsdale’s failures placed Haynie in the position of litigating under a reservation of rights letter from Farm Bureau. Farm Bureau provided a defense, but did so under a reservation of rights that informed Haynie that “some or all of the damages” alleged may be excluded under the policy, and that the litigation “presents the potential for personal liability on your part.” Farm Bureau reserved its right to “deny coverage to you, and anyone claiming coverage under your policy, for any judgment falling outside the policy’s coverage.” Scottsdale knew Haynie was being defended by Farm Bureau, but made no effort to learn if Haynie was being defended under a reservation of rights and, if so, the terms of the reservation. Haynie was “left unprotected,” Schwan, ¶ 20, and faced 16 with this scenario, entered the stipulated judgment, stating that “I [Kyle Haynie] settled with Moodie to eliminate the severe risks to me and my business.” “[W]hen an insurer improperly abandons its insured, the insured is justified in taking steps to limit his or her personal liability.” Freyer, ¶ 34 (quoting Old Republic Ins. Co., 180 P.3d at 433); accord Westchester, ¶ 33; Tidyman’s I, ¶ 25. As such, the stipulated judgment was the “natural and ordinary consequence of [Scottsdale’s] breach” of its duty to defend Haynie. Indep. Milk & Cream Co., 68 Mont. at 157, 216 P. at 1110.5 ¶30 Scottsdale disclaimed coverage without a declaratory judgment and took no further steps to honor its duty to defend, which resulted in an abandonment of its insureds that exposed them to risk. While Scottsdale now acknowledges it had a duty to defend Haynie, at the time it entered the stipulated settlement, Haynie had received only denials from Scottsdale. We affirm the District Court’s holding that Scottsdale breached its duty to defend Haynie. ¶31 2. Did the District Court err by ruling there were no grounds for a reasonableness hearing regarding the stipulated judgment? 5 Notably, the situation here is also different from that in Freyer. In Freyer, the insured entered a consent judgment, but the insurer provided a defense for the insured. Freyer, ¶¶ 14, 17. We held: When an insurer defends the insured against a claim, and challenges coverage in a separate declaratory action, a stipulated settlement that relieves the insured of any financial stake in the outcome of the case does not represent the damages “within the contemplation of the parties when they entered into the insurance contract, and such as might naturally be expected to result from its violation.” Freyer, ¶ 36 (quoting Mont. Petroleum Tank Release Comp. Bd. v. Crumleys, Inc., 2008 MT 2, ¶ 64, 341 Mont. 33, 174 P.3d 948). Here, Haynie was being defended under a substantial reservation of rights by a co-insurer, and Scottsdale did nothing to confirm its coverage decision, exposing Haynie to significant risk. 17 ¶32 Montana’s general damages statute requires that “[d]amages must in all cases be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages contrary to substantial justice, no more than reasonable damages can be recovered.” Section 27-1-302, MCA. Likewise, settlements where an insurer has breached its duty to defend “must be reasonable.” Abbey/Land LLC v. Interstate Mech. Inc., 2015 MT 77, ¶ 12, 378 Mont. 372, 345 P.3d 1032 (citing Tidyman’s I, ¶ 40; § 27-1-302, MCA; Watson v. West, 2011 MT 57, ¶ 11, 360 Mont. 9, 250 P.3d 845); accord Indep. Milk & Cream Co., 68 Mont. at 157, 216 P. at 1110. ¶33 When challenging the reasonableness of the stipulated settlement, the insurer bears the initial burden. Tidyman’s I, ¶ 41. Where a plaintiff has moved for approval of a stipulated settlement, the insurer “must set forth specific facts tending to demonstrate that the settlement amount may be unreasonable and request the district court to hold a reasonableness hearing.” Tidyman’s I, ¶ 41. The insurer must “go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Tidyman’s I, ¶ 41 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986)) (emphasis added). If the insurer sets forth sufficient facts to make a showing that the settlement is unreasonable, that constitutes “a factual issue which precludes entry of summary judgment upon a claim for payment of a settlement amount, and a hearing on reasonableness should be held.” Tidymans I, ¶ 41. 18 ¶34 Scottsdale raised specific fact issues by outlining problems with the appraisal used to establish the settlement amount. Even without the benefit of discovery, Scottsdale introduced an affidavit based upon tax records evidencing the tax value of the land and building currently owned by Moodie. This information implicated potential problems with Moodies’s expert’s filings regarding damages and the reasonableness of the stipulated judgment. Specifically, Scottsdale identified a possible $2 million windfall that appears to grant Moodie sufficient damages to purchase new land and build a new building, without considering the value of the land and building constructed for and currently owned by Moodie as offsetting values. This constitutes sufficient “specific facts” to preclude the entry of summary judgment and require a reasonableness hearing.6 ¶35 We hereby reverse the District Court and remand back for a reasonableness hearing to determine whether the settlement was reasonable in accordance with our holding in Tidyman’s Management Services Inc. v. National Union Fire Insurance Co., 2016 MT 201, 384 Mont. 335, 378 P.3d 1182 [hereinafter Tidyman’s II]. ¶36 3. Did the District Court err by ruling that Scottsdale was not entitled to discovery regarding the reasonableness determination? ¶37 We also remand this matter for appropriate discovery in accordance with Tidyman’s II. “[T]he District Court retains discretion to determine what evidence to admit or refuse in a reasonableness hearing.” Tidyman’s II, ¶ 16. However, the District Court cannot refuse to hear “material and relevant evidence.” Tidyman’s II, ¶ 16. 6 Scottsdale also raises several other factual issues with the stipulated judgment, but one material factual issue is sufficient to preclude entry of summary judgment of a stipulated settlement and require a reasonableness hearing. 19 Material and relevant evidence is that which is “relevant to an assessment of the reasonableness of the stipulated settlement,” Tidyman’s II, ¶ 16, including “facts bearing on the liability and damage aspects of [the] plaintiff’s claim, as well as the risks of going to trial” for a defendant who “does not have the benefit of insurance coverage.” Tidyman’s II, ¶ 15. ¶38 Discovery must be sufficient to allow the District Court to fulfill its duty to “objectively consider both the merits of the underlying case and the value to a prudent uninsured defendant of confessing judgment in exchange for a covenant not to execute.” Tidyman’s II, ¶ 15. However, it is not an excuse for the insurer to raise “insurance contract defenses” or to “assert its policy limits,” as it has already forfeited those rights by breaching its duty to defend. Tidyman’s II, ¶ 14. ¶39 For the foregoing reasons, we affirm the District Court’s determination that Scottsdale breached its duty to defend, and remand this matter for discovery and a reasonableness hearing. ¶40 Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith. /S/ JIM RICE We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT	November 22, 2016
2dd36cc0-cec5-45ea-91e2-13c5bd87acfb	In re C.V.	2016 MT 307	DA 15-0316	Montana	Montana Supreme Court	DA 15-0316 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 307 IN THE MATTER OF: C.V., Respondent and Appellant. APPEAL FROM: District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DI 15-02 Honorable Richard A. Simonton, Presiding Judge COUNSEL OF RECORD: For Appellant: Brian Bulger, Attorney at Law, Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Micheal Wellenstein, Assistant Attorney General, Helena, Montana Oliva Norlin-Rieger, Dawson County Attorney, Glendive, Montana Submitted on Briefs: September 28, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 15-0316 2 Justice James Jeremiah Shea delivered the Opinion of the Court. ¶1 C.V. appeals from a May 8, 2015 Order of the Seventh Judicial District Court, Dawson County, granting the State’s petition for involuntary commitment. ¶2 We address the following issues on appeal: Issue One: Whether the District Court erred in finding there was sufficient evidence to commit C.V. to the Montana State Hospital. Issue Two: Whether C.V.’s right to remain silent was violated. Issue Three: Whether C.V.’s right to due process was violated. ¶3 We affirm in part and reverse in part. PROCEDURAL AND FACTUAL BACKGROUND ¶4 On April 29, 2015, the Dawson County Attorney petitioned the District Court for the involuntary commitment of C.V., alleging that as the result of a mental disorder, she was unable to provide for her own basic needs of safety, there was an imminent threat of injury to herself or others, and her recent acts or omissions would, if untreated, predictably result in deterioration of her mental condition to the point at which she would become a danger to herself or others or would be unable to provide for her own basic need of safety. The petition included mental health professional Albinus Heidt’s report detailing his diagnosis of C.V. with a delusional disorder, and his conversations with two complaining witnesses, Tara Oakland and Kristin Thompson, regarding their interactions with C.V. ¶5 Mr. Heidt met with C.V. at the Glendive Medical Center to conduct a mental health evaluation, in which C.V. chose not to participate. In rambling speech and 3 tangential responses to Mr. Heidt’s questions, C.V. denied any serious mental illness, and communicated that she believed an acquaintance, Cy Wyse, was cheating her out of money and the Oakland family was blacklisting her from employment. C.V. was unable or unwilling to tell Mr. Heidt where she lived. When Mr. Heidt asked C.V. whether she was employed, she replied that this information “was either secret or confidential and she could not divulge that” to him. Mr. Heidt received information about C.V. from Oakland, Thompson, Wyse, Katie Mills of the Dawson County Sheriff’s Office, and Dr. Joe Leal, C.V.’s treating physician. Because C.V. refused to participate in the mental health evaluation, Mr. Heidt relied heavily on information from these other sources— which included interviews with complaining witnesses and documents filed with Sheriff’s Office by the complaining witnesses and C.V., herself—to reach his diagnosis that C.V. suffers from a delusional disorder. ¶6 The District Court found the petition established probable cause that C.V. suffers from a mental disorder that requires her commitment. Between April 30 and May 8, 2015, an initial hearing, an adjudicatory hearing, and a dispositional hearing were held. ¶7 At the initial hearing on April 30, 2015, C.V. argued the State did not have probable cause to file the commitment petition, and the District Court proceeded with the hearing to establish probable cause at which Mr. Heidt, Thompson, and Oakland testified. ¶8 Mr. Heidt testified as an expert witness and mental health professional regarding his diagnosis of C.V.’s delusional disorder, and that her own safety and the safety of others were at risk because of her delusional disorder. Mr. Heidt stated that C.V. does not recognize that she has a delusional disorder, and explained that a person with a 4 delusional disorder distorts reality. When asked how a person with a delusional disorder is affected, Mr. Heidt testified: “What happens is that the individual ends up—in this case ends up saying and doing things which has [sic] been escalating other people in the community to become scared for their own safety and the safety of their children.” The District Court scheduled the commitment hearing for May 4, 2015, and appointed Cindy Heidt as the professional person ordered to conduct a mental health evaluation and submit a written report. The District Court appointed Linda O’Connor as C.V.’s Appointed Friend. ¶9 At the initial hearing, Thompson, the office manager for Oaks Disposal Trucking, testified that C.V. has repeatedly called Oaks Disposal Trucking regarding employment despite being told there were no openings. Thompson stated C.V. would berate and harass her and other employees during phone calls and messages to the point Thompson considered quitting her job. During one voice message, C.V. stated she knew Thompson’s home address, which caused Thompson concern for her family’s safety. Thompson stated she was seeking an order of protection against C.V., and although she had never seen C.V. in person before the hearing on April 30, 2015, their interactions over the phone caused Thompson to change her behavior when out in the community. ¶10 Oakland, the owner of several businesses in the community including Oaks Disposal Trucking, also testified at the initial hearing. Oakland stated C.V. frequently called seeking employment or trying to contact Wyse, who does not work for any of Oakland’s businesses, and that C.V.’s calls always reverted to complaining about a car and asserting that Wyse owed her money. When C.V. called demanding a job application 5 for driving trucks, Oakland informed C.V. that Oakland does not own or work for the trucking business and instructed her to not call back. Oakland testified C.V. called up to five times a day every couple of months since July 2013, and the intensity of the calls increased over the last two months. C.V. also called Oakland’s father-in-law’s insurance company and Oakland’s accountant. C.V. demanded a W-2 form from Oakland’s accountant even though C.V. was never employed by Oakland’s businesses. Oakland testified C.V. filed three complaints with federal agencies regarding employment with Oakland’s businesses, and made false allegations to those federal agencies and local law enforcement. Oakland stated that the phone calls and complaints caused her to alter her activities because she was concerned C.V.’s behavior was escalating. ¶11 Finding unrebutted testimony that C.V. suffers from a delusional disorder, the District Court found C.V. posed an imminent threat of injury to herself and others, noting: “[W]hile she may not be a direct risk to others or herself, the danger in part is the response of the people that she’s stalking and harassing and how they’re going to react to protect themselves.” ¶12 On May 4, 2015, Ms. Heidt filed her report with the District Court, and at the May 4, 2015 adjudicatory hearing, Ms. Heidt testified to a reasonable degree of medical certainty that C.V. suffers from a delusional disorder mixed type with grandiose and persecutory features. Ms. Heidt explained the delusional disorder is a thought disorder and available treatment includes antipsychotic medications, teaching reality thinking and cognitive types of therapy. Ms. Heidt testified there was an imminent threat of injury to C.V. as a result of her delusional disorder because: 6 Some of the things that she’s been doing is going to people’s places and she has gone to Mr. Wyse’s home on several occasions at night and sometimes when he has been sleeping. And that could be a danger either to him or to herself because sometimes people, if they don’t know and there is a prowler, sometimes they protect themselves. And that would be a significant concern. Based on her observations of C.V. and C.V.’s refusal of treatment at the Glendive Medical Center, which lacks a psychiatric ward, Ms. Heidt stated C.V. required treatment at the Montana State Hospital due to the escalation of C.V.’s behavior and the risk she posed to herself and others. ¶13 Also on May 4, 2015, O’Connor filed her report with the District Court. C.V. refused to speak with O’Connor, and referred O’Connor to her attorney. O’Connor’s report had to rely on documents provided by the County Attorney detailing C.V.’s activities and behavior. At the adjudicatory hearing, O’Connor recommended C.V. be committed for treatment. ¶14 At the May 8, 2015 dispositional hearing, the State called Ms. Heidt to testify regarding her recommendations, and C.V. called one lay witness, Charles Nemec, to testify regarding his interactions with C.V. Ms. Heidt recommended C.V. be placed at the Montana State Hospital for treatment. Nemec testified that he previously evicted C.V. from an apartment for having an unauthorized dog, and found C.V.’s apartment to be well kept and her demeanor under the circumstances very pleasant. Following the dispositional hearing, the District Court issued its written findings of facts, conclusions of law, and order of commitment (Order). The District Court found C.V. suffers from a delusional disorder and that there was an imminent threat of injury to herself or others 7 from C.V.’s acts or omissions. The District Court committed C.V. to the Montana State Hospital for a period not to exceed ninety days as the least restrictive placement because no alternative treatment exists within the community. STANDARDS OF REVIEW ¶15 We review a district court’s civil commitment order to determine whether the court’s findings of fact are clearly erroneous and its conclusions of law are correct. In the Matter of S.L., 2014 MT 317, ¶ 20, 377 Mont. 223, 339 P.3d 73. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if we are left with a definite and firm conviction that a mistake has been made after reviewing the entire record. S.L., ¶ 20. We view the evidence in the light most favorable to the prevailing party when determining whether substantial credible evidence supports the district court's findings. In the Matter of the Mental Health of A.S.B., 2008 MT 82, ¶ 17, 342 Mont. 169, 180 P.3d 625 (citation omitted). Due process claims arising from an involuntary civil commitment are subject to plenary review. In the Matter of M.K.S., 2015 MT 146, ¶ 10, 379 Mont. 293, 350 P.3d 27. DISCUSSION ¶16 Issue One: Whether the District Court erred in finding there was sufficient evidence to commit C.V. to the Montana State Hospital. ¶17 C.V. argues the District Court erred in concluding that the State met its burden to commit her to the Montana State Hospital because the mental health professionals’ reports relied on sources that contained hearsay and the complaining witnesses did not 8 sufficiently substantiate that C.V. posed an imminent threat of harm to herself or others. See § 53-21-126, MCA; see also In the Matter of the Mental Health of T.J.D., 2002 MT 24, 308 Mont. 222, 41 P.3d 323; In the Matter of the Mental Health of D.L.T., 2003 MT 46, 314 Mont. 297, 67 P.3d 189, overruled on other grounds by Johnson v. Costco Wholesale, 2007 MT 43, ¶ 16, 336 Mont. 105, 152 P.3d 727. C.V. contends that because neither Thompson nor Oakland testified that C.V. made an articulated or specific threat during her phone calls and they saw C.V. in person for the first time during the April 30, 2015 initial hearing, their testimony failed to meet the statutory standard of showing an imminent threat to self or others. C.V. also contends the mental health professionals relied on hearsay information regarding C.V.’s interactions with Wyse to form the bases of their opinions, and without that inadmissible hearsay, their opinions were not sufficient to show C.V. posed an imminent threat of harm to herself or others. See D.L.T., ¶¶ 16-17; T.J.D., ¶ 14. ¶18 The State argues C.V. failed to raise any timely objections, including hearsay objections, to the mental health professionals’ delusional disorder diagnosis during the District Court proceedings, and therefore waived appellate review of the hearsay claims. See In the Matter of K.M.G., 2010 MT 81, ¶ 36, 356 Mont. 91, 229 P.3d 1227. The State also argues any alleged inadmissible hearsay that Ms. Heidt relied on to diagnose C.V. and formulate her opinion was harmless error, because Ms. Heidt relied on other evidence that was not hearsay, including witness testimony and admissions filed by C.V. with the clerk of court. See M. R. Evid. 801(d)(2); A.S.B., ¶ 36. 9 ¶19 In involuntary commitment cases, the district court must find the respondent suffers from a mental disorder to a reasonable medical certainty, and then determine whether the respondent requires commitment. Section 53-21-126, MCA. To determine whether the respondent requires commitment, the court considers criteria listed in § 53-21-126(1), MCA. Satisfaction of any of the criteria justifies commitment. Section 53-21-127(7), MCA. The State relied on the two following criteria in this case: (c) whether, because of a mental disorder, there is an imminent threat of injury to the respondent or to others because of the respondent’s acts or omissions; and (d) whether the respondent’s mental disorder, as demonstrated by the respondent’s recent acts or omissions, will, if untreated, predictably result in deterioration of the respondent’s mental condition to the point at which the respondent will become a danger to self or to others or will be unable to provide for the respondent’s own basic needs of food, clothing, shelter, health, or safety. Predictability may be established by the respondent’s relevant medical history. Section 53-21-126(1)(c)-(d), MCA. ¶20 The standard of proof in a hearing on an involuntary commitment petition is proof beyond a reasonable doubt with respect to any physical facts or evidence and clear and convincing evidence as to all other matters. Section 53-21-126(2), MCA; A.S.B., ¶ 23. “Imminent threat of self-inflicted injury or injury to others must be proved by overt acts or omissions, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.” Section 53-21-126(2), MCA; A.S.B., ¶ 23. ¶21 Pursuant to § 53-21-126(2) and (4), MCA, the State is obligated to introduce evidence of the Respondent’s recent overt acts or omissions separate from the professional person’s testimony. D.L.T., ¶¶ 16-17. “The written report of the 10 professional person indicating the diagnosis ‘may be attached to the petition, but any matter otherwise inadmissible, such as hearsay matter, is not admissible merely because it is contained in the report.’” T.J.D., ¶ 14 (quoting § 53-21-126(3), MCA). In T.J.D., we held the district court erroneously relied on inadmissible hearsay statements contained in the professional person’s report, and reversed T.J.D.’s commitment because the report’s hearsay information was the only evidence of an imminent threat of injury in the record. T.J.D., ¶¶ 16-18. Similarly, in D.L.T., we held that the district court abused its discretion by admitting hearsay testimony through the professional person, who was the only witness at the hearing, and solely relying on that inadmissible hearsay testimony as sufficient evidence to support D.L.T.’s involuntary commitment. D.L.T., ¶¶ 10, 18. ¶22 Unlike in T.J.D. and D.L.T., where the State presented evidence about the respondent’s acts through the professional person’s testimony alone, in this case, the State presented additional evidence of C.V.’s overt acts through witness testimony that showed C.V. posed an imminent threat of injury to herself or others and, if left untreated, her mental health would deteriorate. Moreover, Ms. Heidt relied on admissions made by C.V. in filings with the Dawson County clerk of court. M. R. Evid. 801(d)(2) (providing a statement offered against a party that is the party’s own statement is not hearsay). Two witnesses testified C.V.’s harassing phone calls and stalking behavior were escalating, and Ms. Heidt opined these were threats that showed C.V. posed an imminent threat of harm to herself or others and that, if left untreated, C.V.’s condition would deteriorate. Section 53-21-126(1)(c)-(d), MCA. Viewing the evidence in a light most favorable to the State as the prevailing party, we conclude the State met its burden of establishing that 11 C.V. posed an imminent threat of harm to herself or others and that, if left untreated, her condition would continue to deteriorate. The District Court’s finding that there was an imminent threat of injury to C.V is supported by substantial credible evidence, and is not clearly erroneous. ¶23 Issue Two: Whether C.V.’s right to remain silent was violated. ¶24 C.V. argues both the mental health professionals’ reports and the District Court’s findings relied in part on C.V.’s exercise of her right to remain silent and refusal of a mental health evaluation to determine whether C.V. suffers from a delusional disorder. The State argues C.V. never objected to the reports or the delusional disorder diagnosis during the District Court proceedings. The State also argues C.V. failed to adhere to M. R. App. P. 12(1)(g), which requires an Appellant’s argument “contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statues, and pages of the record relied on.” State v. Gunderson, 2010 MT 166, ¶ 12, 357 Mont. 142, 237 P.3d 74 (holding it is not the Court’s obligation to conduct legal research or develop legal analysis that might support a party’s position). We agree. ¶25 C.V. never raised objections to the mental health professionals’ diagnoses. We generally will not review a claim to which a party has failed to object or otherwise properly preserve for appeal in the district court. K.M.G., ¶ 36. We will not reverse a district court that was not given an opportunity to correct the alleged error. Siebken v. Voderberg, 2015 MT 296, ¶ 19, 381 Mont. 256, 359 P.3d 1073 (citation omitted). C.V. also fails to support her argument that the District Court violated her right to remain 12 silent with any legal authority or legal analysis. Therefore, we hold C.V. waived appellate review of this issue by failing to object during the District Court proceedings. ¶26 Issue Three: Whether C.V.’s right to due process was violated. ¶27 The District Court stated in its Conclusions of Law VII: “Should the Respondent not comply with discharge recommendations from the Montana State Hospital, Warm Springs, the Respondent be immediately taken back to the Montana State Hospital, Warms Springs, Montana to continue treatment.” ¶28 C.V. argues the District Court’s Order gave Montana State Hospital officials the discretion to return C.V. to the hospital for further treatment after discharge if hospital staff determine at any time she does not follow the discharge recommendations in violation of § 53-21-128, MCA, which regulates the extension of the initial three-month commitment period. C.V. asserts that the Order violates due process because it makes no provision for any further hearings or determinations by the District Court as to an alleged violation of the discharge recommendations and leaves commitment to the sole discretion of hospital staff. ¶29 “[I]t is not only counsel for the patient-respondent, but also courts, that are charged with the duty of safeguarding the due process rights of individuals involved at every stage of the proceedings, and must therefore rigorously adhere to the standards . . . mandated under Title 53, Chapter 21.” In the Matter of the Mental Health of K.G.F., 2001 MT 140, ¶ 92, 306 Mont. 1, 29 P.3d 485. As we have long held, these statutes must be strictly followed. T.J.D., ¶ 20; D.L.T., ¶ 8. 13 ¶30 Section 53-21-128, MCA, provides extensive due process safeguards for the extension of the initial three-month commitment period: (1) the professional person in charge of the respondent at the hospital must petition the district court for an extension not less than two weeks prior to the end of the three-month commitment; (2) a written report about the respondent’s mental and physical condition must accompany the petition; and (3) the report must include descriptions of the tests, evaluations, and past and future courses of treatment. Once the petition to extend the commitment is filed with the district court: (1) notice must be given to the respondent, next of kin, counsel, and appointed Friend of the respondent; (2) a hearing must be held if requested, which shall follow the same procedure as an original hearing under § 53-21-126, MCA, with the exception of the right to a jury trial; and (3) if no hearing is requested, the district court shall enter an order of commitment not to exceed six months. Section 53-21-128(1), MCA. ¶31 The District Court’s Order provided for no safeguards or due process before allowing for C.V.’s recommitment if it is alleged that she has failed to comply with discharge recommendations. Section 53-21-127(4), MCA, provides: “[e]xcept as provided in [§ 53-21-127(3)(b)(ii), MCA, regarding commitments within the community], a treatment ordered pursuant to this section may not affect the respondent’s custody or course of treatment for a period of more than 3 months.” Once a respondent is discharged after a ninety-day commitment, the State must initiate new proceedings to commit the respondent for treatment again. The District Court erred by allowing for C.V. 14 to be immediately taken back to the Montana State Hospital to continue treatment if she did not comply with discharge recommendations after the ninety-day commitment. CONCLUSION ¶32 For the foregoing reasons, we affirm the District Court’s decision that there was sufficient evidence to commit C.V. to the Montana State Hospital. We reverse and remand to the District Court to strike the condition that C.V. shall be immediately taken back to the Montana State Hospital to continue treatment if she does not comply with discharge recommendations to comply with Title 53, chapter 21, MCA. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT	November 29, 2016
70930efa-2dfd-455b-ab13-a99dfa7e9956	State v. R. Kampf	2016 MT 314N	DA 15-0570	Montana	Montana Supreme Court	DA 15-0570 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 314N STATE OF MONTANA, Plaintiff and Appellee, v. RICHARD NORMAN KAMPF, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 12-436 Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Caitlin Overland, Deputy County Attorney, Kalispell, Montana Submitted on Briefs: September 14, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 15-0570 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Richard Kampf (Kampf) appeals from his conviction in Flathead County Justice Court and the ruling in his subsequent appeal to the Eleventh Judicial District Court. After he received multiple misdemeanor citations on December 12, 2006, Kampf never appeared to answer for the charges in Justice Court—despite the court issuing a bench warrant—until he was arrested for Partner or Family Member Assault in 2012, and the previous warrant was uncovered. He filed a motion to dismiss the 2006 citations on Montana and United States Constitutional speedy trial grounds on September 18, 2012, which the Justice Court denied. The court concluded that § 46–13—402(2), MCA, which governs, among other things, speedy trial standards for misdemeanor prosecutions, had not been satisfied because not more than six months had elapsed between the defendant’s initial appearance to enter a plea and his subsequent trial. However, approximately six years had passed since the county had issued the initial complaint against him and his trial. The Justice Court held, and the District Court affirmed on appeal, that Article II, Section 24, of the Montana Constitution does not apply to misdemeanor offenses, leaving the six month window between appearance and trial in § 46–13–402(2), MCA, as the 3 standard and sole basis of analysis for an alleged speedy trial violation in a misdemeanor prosecution in Justice Court. We affirm. ¶3 We restate the issue for review as follows: Whether Article II, Section 24, of the Montana Constitution, and the framework of analysis promulgated in State v. Ariegwe 2007 MT 204, 338 Mont. 442, 167 P.3d 815, apply to misdemeanor prosecutions. ¶4 Trooper David Mills cited Kampf on December 12, 2006 for driving while suspended (§ 61–5–212, MCA); failing to carry proof of insurance (§ 61–6–302, MCA); and following too closely (§ 61–8–329, MCA) in the aftermath of an accident. All of the charges for which the citations were issued were misdemeanors. The citations required Kampf to appear personally in Flathead County Justice Court on December 22, 2006. Kampf did not appear before the court on December 22, and did not heed the court’s warning letter sent on January 5, 2007. The Justice Court suspended his license on January 29, 2007, and issued a bench warrant on March 6, 2007 for his failure to appear. That warrant remained in effect until July 16, 2012, when Kampf was arrested on charges of Partner or Family Member Assault (PFMA). He appeared in Justice Court on July 17, 2012, to answer for the PFMA charge and his misdemeanor citations. He pled not guilty to all charges, but failed to appear at his omnibus hearing on August 28, 2012. In his absence, the court set trial for his 2006 misdemeanor charges for October 16, 2012. ¶5 Through assigned counsel, Kampf moved to dismiss his misdemeanor charges on Montana and United States constitutional speedy trial grounds on September 18, 2012, but the Justice Court denied his motion by order on October 5, 2012. In his motion for dismissal, Kampf argued that the delay between the filing of the complaint against him 4 and his trial date, a span of approximately six years, violated his right to a speedy trial under the United States and Montana Constitutions. In its order denying the motion, the Justice Court reasoned that this Court’s decision in Ariegwe, the controlling framework for constitutional speedy trial claims in Montana, did not apply to misdemeanor violations. Rather than following Ariegwe by conducting a speedy trial hearing, the Justice Court held that Ariegwe did not apply, and § 46–13–401(2), MCA, instead controlled the analysis. ¶6 Less than six months had passed between Kampf entering a plea on July 17, 2012, and his motion to dismiss being filed on September 18, 2012. Since the Justice Court recognized § 46–13–401(2), MCA, as the only controlling authority, the court concluded Kampf had not been denied his speedy trial right. Kampf did not appear at his bench trial on October 16, 2012 and was convicted on all counts in absentia. Kampf appealed to the Eleventh Judicial District Court, where the Justice Court’s rationale underlying the denial of his motion to dismiss was upheld, and his convictions were affirmed. ¶7 On appeal from Justice Court, the District Court functions as an intermediate appellate court. See §§ 3–5–303 and 3–10–115, MCA. On appeal to this Court, we review the case as if the appeal had been filed originally in this Court. City of Bozeman v. Cantu, 2013 MT 40, ¶ 10, 369 Mont. 81, 296 P.3d 461; State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont. 276, 272 P.3d 646 (citing Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643). “We examine the record independently of the district court’s decision, reviewing the trial court’s findings of fact under the clearly erroneous standard, 5 its discretionary rulings for abuse of discretion, and its legal conclusions and mixed questions of law and fact under the de novo standard.” Ellison, ¶ 8. ¶8 We have previously held that while “Ariegwe has no application in a statutory speedy-trial claim,” a defendant is not precluded from pursuing both his statutory right to a speedy trial and his constitutional right to a speedy trial in the same matter. City of Helena v. Heppner, 2015 MT 15, ¶¶ 13, 18, 378 Mont. 68, 341 P.3d 640. A statute may not abrogate a constitutional provision, so a defendant is free to pursue constitutional protections for a speedy trial when his claims under statutory protections fail or are otherwise not available. Heppner, ¶ 18. ¶9 The Justice Court denied Kampf’s speedy trial claim on the grounds that Article II, Section 24, of the Montana Constitution, and the Ariegwe framework do not apply to misdemeanors. Rather than apply Ariegwe’s four factors and conduct a balancing test, the court constrained its application of law to the provisions of § 46–13–401(2), MCA. Additionally, it concluded that Kampf’s arraignment was the trigger date for a speedy trial analysis, not the date the complaint was filed. Although the court was correct that the date of Kampf’s arraignment was the trigger date for the misdemeanor statutory speedy trial protections in § 46–13–401(2), MCA, it erred by not conducting a separate constitutional speedy trial right analysis under Ariegwe. ¶10 Section 24 and Ariegwe do indeed apply to misdemeanor violations, but misdemeanor defendants often times will be better served by moving to dismiss under the smaller threshold window of six months, granted by the statutory protection of § 46-13-401(2), MCA. Although Kampf did not meet the statutory threshold of six 6 months between arraignment and trial, he did meet Ariegwe’s threshold of 200 days between complaint and trial. Kampf’s motion to dismiss on constitutional grounds therefore should have been heard before the Justice Court, and analyzed consistent with our ruling in Ariegwe: the Justice Court should have issued findings of fact, conclusions of law, and conducted a balancing test of the four factors. ¶11 However, just as we may determine, in the absence of the Justice Court conducting an Ariegwe analysis, that the threshold 200 days has been satisfied and triggers a constitutional analysis, so too may we determine that Kampf’s avoidance of the several hearing dates culminating in the issuance of a warrant outstanding for six years conclusively establishes that he had not asserted and did not want his right to a speedy trial. Factor (3) of the Ariegwe constitutional speedy trial analysis requires the court to determine whether the accused asserted his right to a speedy trial. Ariegwe, ¶ 20. Although we recognize that Ariegwe requires the trial court to enter findings of fact and conclusions of law as to each factor, Ariegwe, ¶ 117, remand under the facts present here would be an exercise in futility. Kampf never appeared to answer the charges despite having been provided notice to personally appear. Kampf also did not appear after the Justice Court’s warning letter sent on January 5, 2007. Further, despite the suspension of Kampf’s license for six years and an outstanding bench warrant for an equal amount of time, Kampf continued to avoid trial until he was arrested for a new offense and the outstanding warrant was discovered. Even then, Kampf failed to appear at his omnibus hearing and was ultimately tried in absentia on October 16, 2012. 7 ¶12 Based on these facts, we have no difficulty concluding that although the Justice Court erred in not conducting a constitutional speedy trial analysis, the record clearly establishes Kampf did not want or assert his right to a speedy trial. Indeed, the record demonstrates Kampf did everything he could to avoid a speedy resolution of these proceedings. ¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of relevant standards of review. ¶14 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MIKE McGRATH /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE	November 29, 2016
40eb0e79-2b8d-4f18-bbb6-dbdbbdb8b9d2	State v. Temple	2016 MT 284	DA 14-0753	Montana	Montana Supreme Court	DA 14-0753 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 284 STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN JOHN TEMPLE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. DDC 2011-136 Honorable James P. Reynolds, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Jennifer Hurley, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana Submitted on Briefs: September 21, 2016 Decided: November 9, 2016 Filed: __________________________________________ Clerk 11/09/2016 Case Number: DA 14-0753 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Brian Temple filled a prescription for Oxycodone in April 2011. A month later, police officers discovered Oxycodone residue on a spoon in Temple’s possession. The State charged him with criminal possession of dangerous drugs. The trial court instructed the jury that Temple could assert as a defense that he had obtained the Oxycodone pursuant to a valid prescription. The jury asked the court during deliberations whether crushing prescription Oxycodone violated the law. The court declined to answer and referred the jury to the original instructions. The jury found Temple guilty. He appeals the trial court’s refusal to further instruct the jury. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 On April 2, 2011, Temple arrived at the emergency department of St. Peter’s Hospital complaining of back pain. A doctor prescribed Temple Oxycodone. Temple filled the prescription that day at a CVS pharmacy. Although the record does not include a copy of the prescription, it does include a prescription receipt, which states that the prescription included an eight-day supply of pills. The receipt includes the instruction, “Take 1 tablet by mouth every 4 hours as needed for pain.” ¶4 A month later, law enforcement officers conducted a probation search of Temple’s vehicle. The search uncovered a spoon, a tourniquet, a pill crusher, and a syringe. The officers sent a sample of residue from the spoon to the State Crime Laboratory for 3 chemical analysis. In the meantime, the State charged Temple with criminal possession of drug paraphernalia. ¶5 In September 2011, the State Crime Laboratory identified the residue found on the spoon in Temple’s vehicle as Oxycodone. The State subsequently amended its charges against Temple to include felony criminal possession of dangerous drugs (Oxycodone). ¶6 At trial, Temple admitted to possessing drug paraphernalia and Oxycodone. He asserted as a defense, however, that he possessed the Oxycodone lawfully because he obtained it by prescription. At the close of trial, the District Court instructed the jury on the elements of criminal possession of dangerous drugs and on Temple’s asserted defense that he obtained the Oxycodone “pursuant to” a valid prescription. ¶7 Neither party had proposed an instruction on the legality of crushing prescription Oxycodone, and the court gave no such instruction in its initial charge to the jury. But during deliberations, the jury sent a note with the following questions: (1) “According to the law, when you alter the form of a prescription drug . . . by either applying heat or crushing, does that change the chemical compound of the drug?”; and (2) “If so, does that chemical change make it illegal?” The court responded with the statement, “You are instructed to rely on your collective memory of the testimony and evidence presented.” ¶8 The jury sent another note, asking, “Is it illegal to crush Schedule II Oxycodone?” Temple’s counsel urged the court to answer “no,” arguing that the relevant statutes did not criminalize such conduct. The court acknowledged that the legality of crushing Oxycodone was “obviously . . . tying [the jury] up.” Nonetheless, the court responded to 4 the jury, “You are instructed to rely on your collective memory of the testimony and evidence presented and on the instructions previously given.” The jury found Temple guilty of criminal possession of dangerous drugs. ¶9 Temple argues that the District Court abused its discretion in refusing to further instruct the jury on the legality of crushing prescription Oxycodone. STANDARDS OF REVIEW ¶10 A district court’s decision to provide or deny requested information to a jury during deliberations is one of discretion. Section 46-16-503(2), MCA; State v. Greene, 2015 MT 1, ¶ 12, 378 Mont. 1, 340 P.3d 551. We review such a decision for abuse of discretion. Greene, ¶ 12. When the jury instructions in a criminal case, as a whole, fully and fairly instruct the jury on the law applicable to the case, a district court does not abuse its discretion by refusing to further instruct the jury. State v. Bieber, 2007 MT 262, ¶ 67, 339 Mont. 309, 170 P.3d 444. DISCUSSION ¶11 Whether the District Court abused its discretion when it declined to further instruct the jury in response to the jury’s questions. ¶12 Temple argues that the District Court abused its discretion when it failed to answer the jury’s questions about the legality of crushing Oxycodone. In his view, the law does not criminalize crushing validly prescribed medication or otherwise failing to follow a prescription’s instructions. Temple contends that the original instructions did not adequately inform the jury on this critical point of law. As such, Temple maintains that 5 the court was obligated to clarify for the jury, in response to its questions, that crushing Oxycodone did not violate the law. ¶13 The State counters that crushing and injecting prescription medication contrary to the prescription’s instructions for use violates the law. It asserts that a person lawfully possesses a dangerous drug only if he obtains the drug pursuant to a prescription and continually possesses it “in accordance with the prescription’s instructions and for the purpose for which the drug was prescribed.” The State contends also that the District Court acted within the bounds of its broad discretion when it declined to answer the jury’s questions. ¶14 Montana law criminalizes possession of “dangerous drugs,” including Oxycodone. Sections 45-9-102(1), 50-32-101(6), -224(1)(a)(xvi), MCA. “Ultimate users and practitioners,” however, are “exempt” from the criminal possession statute. Section 45-9-102(8), MCA. The law defines an “ultimate user” as “a person who lawfully possesses a dangerous drug for personal use.” Section 50-32-101(28), MCA. “[A]n ultimate user or a person in possession of any dangerous drug pursuant to a lawful order of a practitioner” may “lawfully possess” such dangerous drug. Section 50-32-302(3), MCA. The relevant statutes do not specifically address whether crushing validly prescribed medication or otherwise failing to follow a prescription’s instructions violates the law or bars a defendant from asserting the “ultimate user” defense. See generally §§ 45-9-101 to -132, 50-32-101(28), -302(3), MCA. 6 ¶15 The District Court gave the following instruction to the jury regarding Temple’s asserted defense to the possession of dangerous drugs charge: An ultimate user of a dangerous drug may possess it lawfully. An ultimate user means a person who lawfully possesses a dangerous drug under a valid prescription. A prescription means any order given individually for the person for whom prescribed by means of an order signed by the prescriber. To rebut the assertion that Defendant was in criminal possession of dangerous drugs, Defendant may raise the defense that he obtained the drug alleged in the charge pursuant to a valid prescription. If, after considering all the evidence, you have a reasonable doubt whether Defendant was in unlawful possession of Oxycodone, you must find Defendant not guilty of the charge. (Emphasis added.) Temple did not object to this instruction. The instruction fairly captures the language of the statutes defining the terms applicable to Temple’s claimed defense. See §§ 45-9-102(8), 50-32-101(25), -302(3), MCA. ¶16 The State argues that crushing and injecting a prescription medication or otherwise failing to abide by the prescription’s instructions for use violates the law because possession is lawful only if the “ultimate user” uses the drug “pursuant to” a valid prescription—by following the prescription’s instructions and using the drug for the purpose for which it was prescribed. The instruction the State proposed to define “ultimate user” and “prescription” did not directly explain this theory, although it did include additional language from the statutes. The District Court declined the State’s instruction as proposed, and its refusal is not an issue on appeal. 7 ¶17 The trial court charged the jury on the elements of the crime charged and on Temple’s “ultimate user” defense using the language of the controlling statutes. The relevant statutes do not speak directly to the issue the jury raised during deliberations. See generally §§ 45-9-101 to -132, 50-32-101(28), -302(3), MCA. The District Court was obligated to instruct the jury only as to “the law applicable to the case,” Bieber, ¶ 67, not as to a legal question on which the parties had not been heard prior to the jury’s retiring to deliberate and on which the law presented no clear answer. There is no abuse of discretion if, as a whole, the instructions fairly and fully covered the applicable law. Bieber, ¶ 67. ¶18 The outcome of this case hinged on the jury’s determination of whether the Oxycodone found in Temple’s possession in May 2011 was obtained “pursuant to” his April 2, 2011 prescription. Section 50-32-302(3), MCA. We conclude that the court’s initial instructions on the “ultimate user” defense, using the phrases “under a valid prescription” and “pursuant to a valid prescription,” fulfilled its obligation to “fully and fairly instruct the jury on the law applicable to the case.” Bieber, ¶ 67. Its decision to refer the jury back to the instructions in response to the jury’s questions did not constitute an abuse of discretion. See Bieber, ¶ 67. CONCLUSION ¶19 The judgment is affirmed. /S/ BETH BAKER 8 We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ PATRICIA COTTER /S/ JIM RICE	November 9, 2016
c36a3ee4-cbb4-4999-8bc3-d3e17c6e2ade	J. Johnson v. State	2016 MT 293N	DA 15-0610	Montana	Montana Supreme Court	DA 15-0610 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 293N JEREMIAH ALLEN JOHNSON, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Appellee. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-15-861 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Jeremiah Allen Johnson (Self-Represented), Great Falls, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy County Attorney, Missoula, Montana Submitted on Briefs: October 19, 2016 Decided: November 15, 2016 Filed: __________________________________________ Clerk 11/15/2016 Case Number: DA 15-0610 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Jeremiah Allen Johnson (Johnson) appeals from the September 8, 2015 Order of the Fourth Judicial District Court, Missoula County, denying his petition for postconviction relief (PCR). We affirm. ¶3 Johnson was convicted of aggravated assault and assault with a weapon on February 13, 2013. Johnson appealed his conviction to this Court, arguing that the District Court erred in denying both his motion for a mistrial and his challenge for cause of a prospective juror. He also claimed that the court erred in failing to give a cautionary instruction to the jury. We affirmed his conviction in a memorandum opinion on May 13, 2014. State v. Johnson, 2014 129N, No. DA 13-0306, 2014 Mont. LEXIS 253. ¶4 On August 11, 2015, Johnson filed a PCR petition with the District Court, alleging trial errors including prosecutorial misconduct, Brady1 violations, judicial misconduct, and three separate ineffective assistance of counsel claims. On September 8, 2015, the court dismissed the petition, finding that his claim was barred under § 46-21-105(2), MCA, and further concluding that each of the six issues he raised in his claim 1 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). 3 substantively failed under § 46-21-201(1)(a), MCA.2 Johnson now appeals the District Court’s denial of his PCR petition. ¶5 We review a district court’s denial of a PCR petition to determine if the court’s findings of fact are clearly erroneous and if its conclusions of law are correct. McGarvey v. State, 2014 MT 189, ¶ 14, 375 Mont. 495, 329 P.3d 576. ¶6 Section 46-21-105, MCA, provides, in relevant part: (2) When a petitioner has been afforded the opportunity for a direct appeal of the petitioner’s conviction, grounds for relief that were or could reasonably have been raised on direct appeal may not be raised, considered, or decided in a proceeding brought under this chapter. Ineffectiveness or incompetence of counsel in proceedings on an original or an amended original petition under this part may not be raised in a second or subsequent petition under this part. (3) For purposes of this section, “grounds for relief” includes all legal and factual issues that were or could have been raised in support of the petitioner’s claim for relief. Additionally, we will not exercise plain error review over PCR claims unless the petitioner alleges newly discovered evidence “which establishes that the petitioner did not commit the underlying offense.” Adgerson v. State, 2007 MT 336, ¶ 12, 340 Mont. 242, 174 P.3d 475. ¶7 In this case, Johnson admits that he relied exclusively on the trial record to support his PCR petition, but contends that the issues he raises were not previously evident from the trial transcript. We disagree. Johnson was afforded the opportunity for a direct appeal and previously raised three alleged errors in this Court, based on the same trial 2 Section 46-21-201(1)(a), MCA, requires the court to conduct an initial review of a PCR petition and provides that “[f]ollowing its review of the responsive pleading, the court may dismiss the petition as a matter of law for failure to state a claim for relief . . . .” 4 record he relies upon here. The trial record does not provide any new legal or factual issues that could not have been reasonably discovered and raised in the petitioner’s direct appeal. As such, we conclude that the District Court did not err in finding that each of Johnson’s six claims for relief are based on asserted error that was evident on the trial record and thus could and should have been raised on direct appeal. Furthermore, Johnson does not ask us to exercise plain error review in this case, nor does he allege any newly discovered, exculpatory evidence to warrant such review. Because we have determined that Johnson’s claim is barred under § 46-21-105(2), MCA, we decline to address the merits of his claims for postconviction relief. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶9 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA	November 15, 2016
3ed51c73-f5f6-47bf-ab3d-dcd668c33928	State v. Theeler	2016 MT 318	DA 15-0575	Montana	Montana Supreme Court	DA 15-0575 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 318 STATE OF MONTANA, Plaintiff and Appellee, v. DONALD L. THEELER, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC 13-022D Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Edward J. Corrigan, Flathead County Attorney, John H. Donovan, Deputy County Attorney, Kalispell, Montana Submitted on Briefs: October 5, 2016 Decided: December 6, 2016 Filed: __________________________________________ Clerk 12/06/2016 Case Number: DA 15-0575 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Donald Theeler physically assaulted his girlfriend, causing her numerous injuries. He sought to dismiss his Partner or Family Member Assault (PFMA) charge on the ground that the statute under which he was charged violated his right to equal protection because it did not apply to persons in same-sex intimate relationships. The Eleventh Judicial District Court upheld the Justice Court’s denial of his motion. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 In September 2012, Theeler was arrested after his girlfriend reported that he had “been beating on her all night.” The State charged Theeler in Flathead County Justice Court with PFMA pursuant to § 45-5-206, MCA (2011). At that time, the statute defined “partners,” in part, as “persons who have been or are currently in a dating or ongoing intimate relationship with a person of the opposite sex.” Section 45-5-206(2)(b) (2011). In 2013, the Legislature struck “with a person of the opposite sex” from the definition of “partners.” 2013 Mont. Laws 803, 804.1 ¶4 Theeler filed a motion to dismiss the PFMA charge. He argued that § 45-5-206, MCA, violated his right to equal protection under the United States and Montana constitutions because the statute treated similarly-situated individuals unequally. The Justice Court denied the motion, reasoning that there was “not a difference in treatment under the law for equal protection purposes.” The Justice Court found Theeler guilty. 1 Unless otherwise noted, all subsequent citations to § 45-5-206, MCA, in this Opinion refer to the 2011 version of the statute. 3 He appealed to the District Court. The District Court concluded that the Justice Court correctly analyzed Theeler’s equal protection claim and therefore affirmed its denial of Theeler’s motion to dismiss. Theeler appeals. STANDARDS OF REVIEW ¶5 We review cases that originate in justice court and are appealed to district court as if the appeal originally had been filed in this Court. State v. Kebble, 2015 MT 195, ¶ 14, 380 Mont. 69, 353 P.3d 1175. Accordingly, we undertake an independent examination of the record apart from the district court’s decision. Kebble, ¶ 14. ¶6 We review de novo a trial court’s decision on a motion to dismiss. State v. Kant, 2016 MT 42, ¶ 11, 382 Mont. 239, 367 P.3d 726. Our review of constitutional questions is plenary. State v. Covington, 2012 MT 31, ¶ 13, 364 Mont. 118, 272 P.3d 43. We may uphold a judgment on any basis supported by the record, even if the lower court applied a different rationale. Rooney v. City of Cut Bank, 2012 MT 149, ¶ 25, 365 Mont. 375, 286 P.3d 241. DISCUSSION ¶7 Whether Theeler was entitled to dismissal of the PFMA charge because the statute violated his constitutional right to equal protection. ¶8 The Justice Court reasoned that § 45-5-206, MCA, did not violate Theeler’s right to equal protection because the statute does not treat similarly-situated individuals unequally. The District Court affirmed the Justice Court’s interpretation of the statute. ¶9 On appeal, Theeler asserts that § 45-5-206, MCA, “by its plain terms,” discriminates between similarly-situated individuals in opposite-sex and same-sex 4 relationships. Such a discriminatory classification, Theeler contends, violates the equal protection clauses of the United States and Montana constitutions. Theeler argues that the statute fails even rational basis review because the classification—sexual orientation—is not rationally related to the statute’s primary purposes—to protect victims of domestic violence and to punish abusers. ¶10 Theeler acknowledges that he was not in a same-sex relationship, but points out that the statute exposes him to greater punishment than a same-sex abuser would face if charged with simple assault. Theeler argues that the statute facially discriminates against similarly-situated classes without justification. He relies, in part, on our decisions in Snetsinger v. Montana University System, 2004 MT 390, 325 Mont. 148, 104 P.3d 445, and Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997), and on the United States Supreme Court’s decisions in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472 (2003), Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584 (2015), and United States v. Windsor, ___ U.S. ___, 133 S. Ct. 2675 (2013), to support his position. He also cites empirical evidence showing similar or higher incidence of domestic violence among same-sex partners as among heterosexual partners. Because the statute unconstitutionally violates his right to equal protection, Theeler argues that his conviction must be reversed. ¶11 For purposes of Theeler’s appeal, and based upon the cited authorities, we accept his argument that the former version of § 45-5-206, MCA, under which he was charged violated equal protection by defining “partners” as “persons who have been or are 5 currently in a dating or ongoing intimate relationship with a person of the opposite sex.” It does not necessarily follow, however, that Theeler’s PFMA conviction cannot stand. ¶12 Whenever possible, we attempt to “construe statutes in a manner that avoids unconstitutional interpretation.” Williams v. Bd. of Cnty. Comm’rs, 2013 MT 243, ¶ 64, 371 Mont. 356, 308 P.3d 88. So, if a statute “contains both constitutional and unconstitutional provisions, we examine the legislation to determine if there is a severability clause.” Williams, ¶ 64; accord United States v. Jackson, 390 U.S. 570, 585, 88 S. Ct. 1209, 1218 (1968) (applying severability in a criminal case and concluding that the “unconstitutionality of a part of an Act does not necessarily defeat . . . the validity of its remaining provisions”) (citation and internal quotations omitted). “The inclusion of a severability clause in a statute is an indication that the drafters desired a policy of judicial severability to apply to the enactment.” Williams, ¶ 64. If a statute does not contain a severability clause, we still may sever an unconstitutional provision. Williams, ¶ 64. In doing so, we “must determine whether the unconstitutional provisions are necessary for the integrity of the law or were an inducement for its enactment.” Williams, ¶ 64 (citation and internal quotations omitted). In order to sever an unconstitutional provision, “the remainder of the statute must be complete in itself and capable of being executed in accordance with the apparent legislative intent.” Williams, ¶ 64. That is, if severing “the offending provisions will not frustrate the purpose or disrupt the integrity of the law, we will strike only those provisions of the statute that are unconstitutional.” Williams, ¶ 64. We have long held that “[i]f an invalid part of a statute is severable from the rest, the 6 portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected.” Sheehy v. Public Employees Retirement Div., 262 Mont. 129, 141, 864 P.2d 762, 770 (1993); Mont. Auto. Ass’n v. Greely, 193 Mont. 378, 399, 632 P.2d 300, 311 (1981). ¶13 Here, the statute as originally enacted contained a severability clause. 1985 Mont. Laws 1575, 1577. A 1995 bill that partially amended the statute’s definition of “partners” also included a severability clause. 1995 Mont. Laws 1108, 1128. These severability clauses indicate that the Legislature “desired a policy of judicial severability to apply to the enactment” of § 45-5-206, MCA. Williams, ¶ 64. ¶14 With or without severability clauses in each amendment since the statute’s enactment, we conclude that the unconstitutional provision is unnecessary “for the integrity of the law.” Williams, ¶ 64. It is undisputed that the purpose of § 45-5-206, MCA, is to protect victims of domestic violence and to punish and rehabilitate abusers. Severing the phrase “with a person of the opposite sex” from § 45-5-206(2)(b), MCA—as the Legislature did in 2013—“will not frustrate the purpose or disrupt the integrity of the law.” Williams, ¶ 64. Further, severing the unconstitutional provision so as to construe the statute “in a manner that avoids unconstitutional interpretation” leaves the “remainder of the statute . . . complete in itself and capable of being executed in accordance with the apparent legislative intent.” Williams, ¶ 64. The statute still would protect victims of domestic violence and provide for the punishment and rehabilitation of abusers. 7 ¶15 We reject Theeler’s claims to the contrary. We are not persuaded by his argument that severing the offending provision violates his right to due process. As a heterosexual male, Theeler received every constitutional protection he was due when prosecuted for physically assaulting his female partner. We conclude that Theeler was not entitled to dismissal of his PFMA charge. Accordingly, even though we do so applying a different rationale, we conclude that the Justice Court and the District Court correctly denied Theeler’s motion to dismiss. CONCLUSION ¶16 We affirm Theeler’s PFMA conviction. /S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ JAMES JEREMIAH SHEA /S/ PATRICIA COTTER /S/ JIM RICE Justice Laurie McKinnon, specially concurring. ¶17 I write separately to adequately address the remedy of severability which we apply following our determination that § 45-5-206, MCA, violated equal protection guarantees by defining “partner” in a manner that excluded same-sex partners. The problem is one of underinclusiveness of the statute; that is, it criminalizes only heterosexual conduct and 8 does not include as criminal those assaults occurring between same-sex partners. When a statute is constitutionally defective because of underinclusion, a court may either strike the statute, and thus make it applicable to nobody, or extend the statute’s coverage to those excluded. Thus, the unconstitutionality of one part of the statute does not necessarily render the entire statute void. ¶18 This Court must discern what course the Legislature would have followed had it foreseen our determination as to underinclusiveness of the statute. Nearly fifty years ago, Judge Cardozo stated, “[t]he question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether.” People v. Mancuso, 175 N.E. 177, 181 (N.Y. 1931). “Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.” United States v. Jackson, 390 U.S. 570, 585, 88 S. Ct. 1209, 1218 (1968). More recently, in the landmark severability case of Ayotte v. Planned Parenthood, 546 U.S. 320, 126 S. Ct. 961 (2006), the Court declared the following principles: Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature’s work than is necessary[.] . . . Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from ‘rewriting state law to conform it to constitutional requirements’ even as we strive to salvage it. . . . Third, the touchstone for any decision about remedy is legislative intent, for a court cannot ‘use its remedial powers to circumvent the intent of the legislature.’ 9 Ayotte, 546 U.S. at 329-30, 126 S. Ct. at 967-68 (citations omitted). ¶19 Montana similarly has followed these principles of severability. If an invalid part of a statute is severable from the rest, the portion which is constitutional may stand while that which is unconstitutional is stricken out and rejected. State v. Fire Department Relief Association, Etc., 138 Mont. 172, 178, 355 P.2d 670, 673 (1960). A statute “is not destroyed in toto because of an improper provision, unless such provision is necessary to the integrity of the statute or was the inducement to its enactment.” Hill v. Rae, 52 Mont. 378, 389-90, 158 P. 826, 831 (1916). If, when an unconstitutional portion of an act is eliminated, the remainder is complete in itself and capable of being executed in accordance with the apparent legislative intent, it must be sustained. Gullickson v. Mitchell, 113 Mont. 359, 375, 126 P.2d 1106, 1114 (1942). ¶20 Theeler argues the remedy he should receive for having been convicted pursuant to a constitutionally defective statute is reversal. The Court fails to address this argument and Theeler’s contention that, because other same-sex partners have escaped prosecution prior to 2013, Theeler should likewise escape accountability. Principles of severance, however, do not require that a statutory provision constitutionally defective for underinclusiveness be declared invalid as to those legitimately included within the class on the basis that others have escaped accountability. Principles of severance still apply where elimination of an invalid exemption will nonetheless impose burdens on those not formerly burdened by the statute. Orr v. Orr, 440 U.S. 268, 271-72, 99 S. Ct.1102, 10 1107-08 (1979). Further, severability principles apply although the exemption is part of a criminal statute and the equal protection analysis occurs within the context of a criminal trial where the defendant is cloaked with numerous constitutional and statutory protections. Skinner v. Oklahoma, 316 U.S. 535, 543, 62 S. Ct. 1110, 1114 (1942). ¶21 The question, then, is whether the Legislature would prefer to have statutes which cover all partners in partner family member assaults, with no exemption for same-sex couples, or instead to have no statutes at all proscribing partner family member assaults which involve persons in an intimate relationship, regardless of sexual orientation. In all cases where the court must decide whether to sever an exemption or instead declare an entire statute or definition a nullity, the court must look to the importance of the statute and the significance of the exemption within the overall statutory scheme. Statutes prohibiting partner family member assaults are of utmost importance to public safety. To nullify, in its entirety, that portion of the statute offering protection to “persons who have been or are currently in a dating or ongoing intimate relationship” would have a disastrous effect on public safety and the protection of victims of domestic violence. Although the Legislature struggled prior to 2013 with the very phrase the Court has found unconstitutional, the inevitable conclusion that I would reach is that the Legislature would prefer to eliminate “of the opposite sex” rather than nullify that portion of the statute offering protection to partners in intimate relationships. By expanding the definition of “partners” to all persons in intimate relationships, the Legislature’s concerns for public safety and protection of victims of domestic violence are preserved. 11 ¶22 Pursuant to this analysis, a court does not “create a crime,” but does, however, enlarge the scope of the partner family member statute which was constitutionally defective for its underinclusiveness. Accordingly, by choosing a remedy which expands the definition of “partner,” Theeler cannot claim that he was convicted pursuant to a constitutionally defective provision because the statute under which he is being convicted has not been struck down. By eliminating an unconstitutional exception to a criminal statute we have expanded and enlarged the scope of the statute. We have not rendered the valid provision pursuant to which Theeler was convicted unenforceable. ¶23 Moreover, the due process clause of the Fourteenth Amendment requires that an accused have had fair warning at the time of committing an offense that such conduct was made criminal by the State. Theeler’s conduct was covered by the statute and he received fair warning that it was criminal. The remedy chosen by the Court to extend coverage of “partner” to all those to whom the provision can constitutionally be applied, does not deprive Theeler of a constitutionally protected right to equal protection or due process. To reverse Theeler’s conviction would mean that all those persons who were convicted of partner family member assault would be entitled to have their conviction vacated and that a conviction could additionally not be considered as a predicate offense for an enhanced penalty. The equal protection clause and due process do not require that we reach such as result. ¶24 Therefore, pursuant to the foregoing analysis, the remedy for the underinclusiveness of the statute is to expand coverage to those formerly excluded by 12 striking that portion of the statute which defines “partners” as “those of the opposite sex.” Because the portion of the statute under which Theeler has been convicted has not been struck down, his conviction should be affirmed. /S/ LAURIE McKINNON	December 6, 2016
16af2759-1ea5-429d-a1db-62643d3d72e8	Morsette v. State	2016 MT 294N	DA 15-0443	Montana	Montana Supreme Court	DA 15-0443 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 294N ISAIAH MAURICE MORSETTE, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee. APPEAL FROM: District Court of the Seventeenth Judicial District, In and For the County of Blaine, Cause No. DV-14-050 Honorable John C. McKeon, Presiding Judge COUNSEL OF RECORD: For Appellant: Paul Sullivan, Measure, Sampsel, Sullivan & O’Brien, P.C., Kalispell, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana Kelsie W. Harwood, Blaine County Attorney, Chinook, Montana Submitted on Briefs: September 7, 2016 Decided: November 15, 2016 Filed: __________________________________________ Clerk 11/15/2016 Case Number: DA 15-0443 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by unpublished opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Isaiah Maurice Morsette appeals from a July 2015 order of the Seventeenth Judicial District Court, Blaine County, denying his Petition for Post-Conviction Relief. We affirm. ¶3 In 2011, Morsette was convicted of sexual intercourse without consent. He appealed and we affirmed his conviction.1 On December 19, 2014, Morsette filed a petition for post-conviction relief alleging he had received ineffective assistance of counsel leading up to and during his trial, supported by affidavits and non-record based evidence. After a detailed review of the evidence presented, the District Court denied Morsette’s petition. On appeal, Morsette argues that the District Court erred by failing to hold an evidentiary hearing prior to dismissing his petition for post-conviction relief. ¶4 “We review a district court’s denial of a petition for post-conviction relief to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct.” Beach v. State, 2009 MT 398, ¶ 14, 353 Mont. 411, 220 P.3d 667 (citation omitted). “We review discretionary rulings in post-conviction relief 1 State v. Morsette, 2013 MT 270, ¶¶ 43-44, 372 Mont. 38, 309 P.3d 978. 3 proceedings, including rulings related to whether to hold an evidentiary hearing, for an abuse of discretion.” Beach, ¶ 14 (citation omitted). ¶5 When examining a petition for post-conviction relief, a district court may either “dismiss the petition as a matter of law for failure to state a claim for relief or it may proceed to determine the issue.” Section 46-21-201(1)(a), MCA. Once a district court has proceeded to determine the merits of a petition, its decision whether to hold a hearing is purely discretionary. See § 46-21-201(5), MCA. Based upon the petition, affidavits, and record in this case, it is clear the District Court did not dismiss the petition for failure to state a claim, but rather proceeded to address and resolve the issues presented in the petition. We conclude that the District Court had before it an adequate record for resolution of the issues Morsette presented, and that the District Court therefore did not abuse its discretion in refusing to hold an evidentiary hearing in this case. ¶6 Further, we note that this Court affirmed Morsette’s conviction in State v. Morsette on September 17, 2013. Under § 46-21-102(1)(b), MCA, Morsette’s conviction became final on the date the time for petitioning the United States Supreme Court for review expired. From the date on which our decision was entered, Morsette had 90 days in which to seek review from the Supreme Court. See Rule 11 of the Rules of the Supreme Court of the United States. For purposes of this petition, his conviction became final on December 16, 2013. Under § 46-21-102(1), MCA, a petition may be filed within one year of the date that the conviction becomes final. Accordingly, Morsette had until December 16, 2014, to file his petition. As noted above, Morsette filed his instant petition on December 19, 2014, shortly after the procedural window had expired. 4 Therefore, even if we were to determine that the District Court abused its discretion in determining not to hold an evidentiary hearing, the District Court did not err in dismissing the petition because it is procedurally barred by the statute of limitations. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for unpublished opinions. In the opinion of this Court, this case presents a question controlled by settled law. ¶8 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA	November 15, 2016
2903f4cd-3415-4ed6-9949-312ac358aa69	Marriage of Jardine and Schwartz	2016 MT 321N	DA 16-0332	Montana	Montana Supreme Court	DA 16-0332 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 321N IN RE THE MARRIAGE OF: JULIA M. JARDINE, f/k/a JULIA M. SCHWARTZ, Petitioner and Appellee, and WESLEY A. SCHWARTZ, Respondent and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 11-0029 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: Wesley A. Schwartz (Self-Represented), Los Angeles, California For Appellee: Kevin T. Sweeney, Attorney at Law, Billings, Montana Submitted on Briefs: November 10, 2016 Decided: December 6, 2016 Filed: __________________________________________ Clerk 12/06/2016 Case Number: DA 16-0332 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Wesley Schwartz appeals from the District Court’s Findings of Fact, Conclusions of Law and Order filed on May 23, 2016. We affirm. ¶3 Schwartz and Julia Jardine were married in 2005 and divorced in 2013. They have three children who live with Jardine, and the divorce decree provides a parenting plan and support requirements. We previously reversed Jardine’s attempt to terminate Schwartz’s parental rights and have her father adopt the children. In the Matter of the Adoption of AMS, MAS and AWS, 2016 MT 22, 382 Mont. 145, 364 P.3d 1261. ¶4 The present appeal arises from Schwartz’s motions to reduce his child support obligation and to modify the parenting plan to allow him unsupervised contact with the children. The District Court set these motions for hearing and denied Schwartz’s motion that he be allowed to participate by telephone. Schwartz claimed that he could not afford to travel to Montana from his home in California. The District Court denied that motion and held the hearing on the Schwartz motions. Several witnesses testified but Schwartz did not appear. 3 ¶5 After the hearing the District Court considered the testimony along with materials submitted by Schwartz, and in addition the testimony and exhibits considered in the previous hearing. The District Court found that the evidence showed that there were no grounds for changing the child support obligation or the conditions for visitation. The District Court also found that Schwartz “continues to make sworn declarations to the Court that are utterly untrue.” The District Court found that Schwartz was not a poor student as he claimed, but “lives a comfortable lifestyle in affluent West Los Angeles, California” where he lives with and is supported by his attorney. The District Court found that the testimony of the therapist who works with the children supports continuing the supervision requirements for Schwartz’s contact with the children. ¶6 Schwartz appeals from the order denying his motion to appear telephonically, and from the denial of his motions to amend the prior orders regarding visitation and child support. He contends that denial of each of these motions was an abuse of discretion. ¶7 Schwartz has not demonstrated that the District Court abused its discretion in denying him leave to participate in the hearing by telephone or in denying his motions to modify prior court orders. Moreover, the District Court’s findings of fact are based upon substantial evidence in the record and its conclusions of law are correct. ¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the District Court’s findings of fact are supported by substantial evidence and the legal issues are controlled by settled law. ¶9 Affirmed. 4 /S/ MIKE McGRATH We Concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA	December 6, 2016
024c2f43-c882-48fd-af40-c50451e55e6f	S & P Brake Supply, Inc. v. Stemco LP	2016 MT 324	DA 16-0014	Montana	Montana Supreme Court	DA 16-0014 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 324 S & P BRAKE SUPPLY, INC., Plaintiff and Appellee, v. STEMCO LP, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 12-1533 Honorable Michael G. Moses, Presiding Judge COUNSEL OF RECORD: For Appellant: Robert C. Griffin, Crowley Fleck PLLP, Billings, Montana For Appellee: Michael F. McGuinness, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana Submitted on Briefs: October 26, 2016 Decided: December 13, 2016 Filed: /S/ ED SMITH Clerk 12/13/2016 Case Number: DA 16-0014 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 S&P Brake Supply, Inc. (S&P) sued STEMCO LP (STEMCO) for breach of an alleged oral contract for a five-year arrangement to produce and sell remanufactured brakes. STEMCO claimed that the statute of frauds barred the oral contract and that the parol evidence rule precluded evidence of its formation. The District Court denied STEMCO’s motions for summary judgment and judgment as a matter of law. A Yellowstone County jury found in favor of S&P and awarded damages on the oral agreement. STEMCO appeals. We restate the issues on appeal as follows: 1. Whether the District Court erred in denying STEMCO’s motion for summary judgment because the alleged oral contract was barred by the statute of frauds; 2. Whether the District Court erred in submitting the questions of part performance and promissory estoppel to the jury; 3. Whether the District Court abused its discretion in excluding evidence proffered by STEMCO to rebut S&P’s breach of contract and damages claims; 4. Whether the District Court erred in denying costs to STEMCO for prevailing on its counterclaim. ¶2 We affirm. PROCEDURAL AND FACTUAL BACKGROUND ¶3 S&P is a Montana corporation that remanufactures brakes for semi-truck vehicles. STEMCO is a Texas company with a division that manufactures replacement brake parts, including brake linings. On March 2, 2011, STEMCO and S&P representatives met to discuss entering into a business relationship. The two parties agreed that S&P would become a “STEMCO authorized remanufacturer.” This meant that STEMCO would sell 3 its brake linings to S&P, S&P would remanufacture brakes using the STEMCO brake linings, S&P would label the remanufactured brakes as STEMCO products, and then S&P would sell the remanufactured brakes to certain “STEMCO authorized distributors”—companies to which STEMCO permitted its “authorized remanufacturers” like S&P to sell the remanufactured brakes. At the meeting, S&P’s president signed a STEMCO “Authorized Brake Remanufacturer Program Agreement” (Program Agreement), which STEMCO required in order for S&P to become an “authorized remanufacturer.” ¶4 The parties dispute whether the Program Agreement served as a final expression of their agreement and therefore constituted a contract. S&P alleged that, at the March 2011 meeting, STEMCO guaranteed S&P the right to sell remanufactured brakes to STEMCO authorized distributors in a five-state region for a period of five years. Among those authorized distributors was Kenworth Sales Company (Kenworth), with locations in Utah and Idaho. Following the meeting, S&P made substantial expenditures on new inventory and equipment, a new trailer, a commercial lease for additional warehouse space in Salt Lake City, and additional employees. S&P asserted that it made these expenditures in reliance on STEMCO’s promise that S&P could sell remanufactured brakes to Kenworth for five years. ¶5 For roughly the next year and a half, S&P remanufactured brakes using STEMCO brake linings and sold those brakes to Kenworth. In about August 2012, Kenworth broke ties with S&P and instead began purchasing its remanufactured brakes from a company 4 called Gorilla Brake, another STEMCO authorized remanufacturer. S&P sued STEMCO for breach of contract, among other claims. S&P argued that STEMCO violated the terms of the parties’ alleged oral five-year contract by allowing Gorilla Brake to replace S&P as Kenworth’s supplier of remanufactured brakes. ¶6 STEMCO moved for summary judgment. It argued that the statute of frauds rendered the alleged oral contract unenforceable. STEMCO contended further that the terms of the oral contract contradicted the terms of the Program Agreement, and thus that the parol evidence rule barred S&P from introducing evidence of the oral contract. The District Court denied STEMCO’s motion in part, concluding that genuine issues of fact existed as to whether S&P could satisfy an exception to the statute of frauds and whether the Program Agreement constituted a final expression of the parties’ agreement such that the parol evidence rule would apply. ¶7 At trial, the District Court instructed the jury, over STEMCO’s objections, on the doctrines of part performance and promissory estoppel as possible exceptions to the statute of frauds. The court rejected STEMCO’s proposed instruction on promissory estoppel that would have included a requirement that S&P prove that STEMCO intentionally misled S&P. The District Court also excluded certain evidence that STEMCO offered to rebut S&P’s claim for damages and to show that S&P lost Kenworth’s business as a result of its own inadequate service rather than anything STEMCO did. 5 ¶8 At the close of S&P’s case in chief, STEMCO moved for judgment as a matter of law, contending that insufficient evidence existed to allow a reasonable jury to find that any exception to the statute of frauds applied to the alleged oral contract.1 The District Court denied the motion, concluding that sufficient evidence existed to support a jury finding that either the part performance or promissory estoppel exception applied. The jury found for S&P and awarded it $344,532 in damages. ¶9 The jury also found in favor of STEMCO on its counterclaim against S&P for $63,990.48 worth of inventory it delivered to S&P but for which S&P had not paid. Each party submitted a bill of costs. The court awarded costs to S&P, but denied costs to STEMCO, reasoning that although STEMCO prevailed on its counterclaim, it was not entitled to costs because it did not prevail on the “main issue in controversy.” STANDARDS OF REVIEW ¶10 We review de novo a district court’s ruling on summary judgment, applying the criteria of M. R. Civ. P. 56(c)(3). Citizens for a Better Flathead v. Bd. of Cnty. Comm’rs, 2016 MT 256, ¶ 10, 385 Mont. 156, 381 P.3d 555. We review a district court’s conclusions of law to determine whether they are correct. Citizens for a Better Flathead, ¶ 10. ¶11 Whether judgment as a matter of law should be granted or denied is a question of law, and therefore the appropriate standard of review is de novo. Johnson v. Costco 1 The parties refer in their briefs to STEMCO’s M. R. Civ. P. 50(a) motion for “directed verdict.” This Court no longer uses the term “directed verdict,” but instead applies Rule 50’s term, “judgment as a matter of law.” Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 3 n.1, 288 Mont. 1, 955 P.2d 160. 6 Wholesale, 2007 MT 43, ¶ 18, 336 Mont. 105, 152 P.3d 727. Judgment as a matter of law is proper only when there is a complete absence of any evidence that would justify submitting an issue to a jury; all such evidence and any legitimate inferences that might be drawn from the evidence must be considered in the light most favorable to the party opposing the motion. Johnson, ¶ 13. ¶12 A district court has discretion when it decides how to instruct the jury, and this Court will not reverse a district court on the basis of its instructions absent an abuse of discretion. Cechovic v. Hardin & Assocs., 273 Mont. 104, 116, 902 P.2d 520, 527 (1995). Although a district court has broad discretion, the principle that jury instructions must fully and fairly instruct the jury regarding the applicable law limits its discretion. Goles v. Neumann, 2011 MT 11, ¶ 9, 359 Mont. 132, 247 P.3d 1089. ¶13 A district court has broad discretion in determining whether evidence is relevant and admissible. Stokes v. Ford Motor Co., 2013 MT 29, ¶ 11, 368 Mont. 365, 300 P.3d 648. We thus review evidentiary rulings for an abuse of discretion. Stokes, ¶ 11. ¶14 We review for correctness a district court’s determination whether a party is statutorily entitled to costs. Total Indus. Plant Servs. v. Turner Indus. Grp., LLC, 2013 MT 5, ¶ 61, 368 Mont. 189, 294 P.3d. 363. DISCUSSION ¶15 1. Whether the District Court erred in denying STEMCO’s motion for summary judgment because the alleged oral contract was barred by the statute of frauds. ¶16 The District Court denied STEMCO’s motion for summary judgment on the grounds that genuine issues of fact existed as to whether the Program Agreement 7 constituted the final expression of the parties’ agreement and what the terms of the parties’ agreement were. The court reasoned also that genuine issues of fact existed as to whether S&P could demonstrate that statutory and equitable exceptions shielded the alleged oral contract from the statute of frauds. ¶17 STEMCO argues that it was entitled to summary judgment because the Program Agreement constituted a final expression of the parties’ agreement and the parol evidence rule barred evidence of the alleged oral contract. STEMCO contends that the doctrines of part performance and promissory estoppel do not exempt the alleged oral contract from the statute of frauds. Even if promissory estoppel could be invoked, STEMCO claims that Montana law permits the doctrine to defeat the statute of frauds only when the party asserting promissory estoppel shows that the promisor engaged in fraud or intentional deception, which S&P did not allege. ¶18 The parties agree that the Uniform Commercial Code (UCC) applies to their contractual relationship, but they also cite to general contract law to support their arguments. The UCC applies to “transactions in goods.” Section 30-2-102, MCA. “Goods” include “all things . . . which are movable at the time of identification to the contract for sale.” Section 30-2-105, MCA. The agreement between the parties involves the sale of brake linings from STEMCO to S&P and the sale of remanufactured brakes from S&P to Kenworth. The brake linings and remanufactured brakes constitute moveable goods under § 30-2-105, MCA. The alleged oral contract thus pertains to “transactions in goods” and falls within the ambit of the UCC. Section 30-2-102, MCA. 8 ¶19 Montana’s UCC statute of frauds governs contracts for transactions in goods. It provides, Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought. Section 30-2-201(1), MCA. It is undisputed that the goods transacted between the parties exceeded $500 in price. A. Whether the Program Agreement was a final expression of the parties’ agreement. ¶20 When the parties have entered into a written agreement and one party asserts the existence of an additional oral contract, the UCC parol evidence rule may apply to bar evidence of the alleged oral contract. That rule provides, Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement. Section 30-2-202, MCA. This statute requires that a court make an “initial determination” whether the parties intended a written document to constitute the final expression of their agreement. Norwest Bank Billings v. Murnion, 210 Mont. 417, 423, 684 P.2d 1067, 1071 (1984). The presence of a “clear and unequivocal promise” in writing may indicate the parties’ intent that the writing constitutes a final expression of their agreement. Norwest Bank Billings, 210 Mont. at 426, 684 P.2d at 1072. 9 ¶21 The parol evidence rule bars evidence of oral agreements only “when the terms of a written agreement indicate the intent of the parties that the written memorialization represents the complete and final agreement between the parties.” Brimstone Mining, Inc. v. Glaus, 2003 MT 236, ¶ 46, 317 Mont. 236, 77 P.3d 175. “If it is determined that the parties did not intend the writing to be final with respect to the terms expressed therein,” then the parol evidence rule does not apply, and a court may admit parol evidence “to elucidate the true nature of the parties’ agreement.” Norwest Bank Billings, 210 Mont. at 424, 684 P.2d at 1071. This is consistent with the principle that if the language of a purported contract is ambiguous, “a factual determination must be made as to the parties’ intent in entering into the contract.” Mary J. Baker Revocable Trust v. Cenex Harvest States, Coops., Inc., 2007 MT 159, ¶ 19, 338 Mont. 41, 164 P.3d 851. ¶22 The Program Agreement S&P signed states in part, “To qualify for the STEMCO Duroline CRM Program, you hereby agree to the following.” (Emphasis added.) The document then lists five policies that STEMCO requires its “authorized remanufacturers” to follow. The Program Agreement provides also, “To get more information or to become an authorized brake remanufacturer, contact your local STEMCO Duroline Regional Sales Manager. This program is subject to change, or may be discontinued at any time.” (Emphasis added.) ¶23 The District Court held that the Program Agreement’s language creates doubt as to whether the parties intended it as a “final expression of their agreement with respect to such terms as are included therein.” Section 30-2-202, MCA. The language indicates 10 that S&P would need to take further action in order to become an authorized brake remanufacturer. The document does not set forth any obligation assumed by STEMCO or reflect a “clear and unequivocal promise” between S&P and STEMCO. Norwest Bank Billings, 210 Mont. at 426, 684 P.2d at 1072. We agree with the court’s “initial determination” that the Program Agreement did not clearly evidence a final expression of the parties’ agreement. Norwest Bank Billings, 210 Mont. at 423, 684 P.2d at 1071. ¶24 Once the court made this initial determination, it properly denied summary judgment and allowed the jury to consider evidence “to elucidate the true nature of the parties’ agreement.” Norwest Bank Billings, 210 Mont. at 424, 684 P.2d at 1071. The District Court did not err in concluding that a genuine issue of fact existed on the question whether the Program Agreement represented a final expression of the parties’ agreement. B. Whether STEMCO was entitled to summary judgment on S&P’s claim that part performance exempted the alleged oral contract from the statute of frauds. ¶25 The District Court declined to award summary judgment to STEMCO on this ground because STEMCO had not adequately briefed the issue. Because the court allowed this claim to go to the jury, we address it later in this Opinion. C. Whether the promissory estoppel doctrine was available to S&P as a matter of law. ¶26 The District Court also held that a genuine issue of fact existed as to whether S&P could satisfy one or more exceptions to the statute of frauds. STEMCO argues that the 11 promissory estoppel doctrine was not available to S&P as a matter of law, and thus that it should have been awarded summary judgment. ¶27 The statute of frauds provides that a contract that does not satisfy the writing requirement still may be enforceable under certain enumerated circumstances. Section 30-2-201(3), MCA. The statute does not explicitly name promissory estoppel as an exception. But a separate UCC provision, titled “Supplementary general principles of law applicable,” provides, “Unless displaced by the particular provisions of this code, the principles of law and equity, including . . . estoppel . . . shall supplement its provisions.” Section 30-1-103, MCA. ¶28 Relying on § 30-1-103, MCA, this Court has allowed estoppel to be raised to defeat the statute of frauds in a UCC case. N.W. Potato Sales v. Beck, 208 Mont. 310, 317, 678 P.2d 1138, 1141 (1984). In Northwest Potato Sales, we held that estoppel by silence applied to enforce an oral contract otherwise barred by the UCC statute of frauds. N.W. Potato Sales, 208 Mont. at 317, 678 P.2d at 1141. We reasoned that “[t]he UCC expressly mentions estoppel as one of the general principles of law that supplement the UCC (Section 30-1-103, MCA), unless other parts of the UCC expressly displace that principle. Here no provision of the UCC states that estoppel cannot be applied to defeat a statute of frauds defense.” N.W. Potato Sales, 208 Mont. at 315-16, 678 P.2d at 1140-41. We observed that equitable estoppel, promissory estoppel, and estoppel by silence all are recognized doctrines under Montana law that “blend with each other.” N.W. Potato Sales, 208 Mont. at 316-17, 678 P.2d at 1141 (citing Keil v. Glacier Park, Inc., 12 188 Mont. 455, 614 P.2d 502 (1980)). Although we observed that the facts also “may fit . . . equitable estoppel,” we rested our decision on estoppel by silence, the theory applicable in that case. N.W. Potato Sales, 208 Mont. at 317, 678 P.2d at 1141. We did not address whether promissory estoppel might also apply to enforce a contract otherwise barred by the UCC statute of frauds. N.W. Potato Sales, 208 Mont. at 317, 678 P.2d at 1141. ¶29 Outside the UCC context, we have held that where a contract clearly is within the statute of frauds, promissory estoppel is inapplicable, unless the statute would otherwise operate to perpetuate a fraud. Schwedes v. Romain, 179 Mont. 466, 473-74, 587 P.2d 388, 392 (1978). We decided Schwedes under general contract law principles. Schwedes, 179 Mont. at 470-71, 587 P.2d at 390-91. “With the adoption of the Uniform Commercial Code, however, litigation arising out of a transaction” for the sale of goods “should be controlled by the principles of the Code, with the law of contract being used only to supplement Code provisions.” Norwest Bank Billings, 210 Mont. at 422-23, 684 P.2d at 1070. Here, the alleged oral contract pertains to transactions in goods, and the principles of the UCC apply. The statutes governing contracts generally, found in Title 28, MCA, do not contain a provision like § 30-1-103, MCA. Our holding in Schwedes, which applies to transactions covered by general contract law, therefore is not determinative. Contrary to our holding in Schwedes, we had “no difficulty” in Northwest Potato Sales concluding that estoppel may apply to a UCC statute of frauds transaction, based on § 30-1-103, MCA. N.W. Potato Sales, 208 Mont. at 315, 678 P.2d at 1140. 13 ¶30 A majority of jurisdictions have adopted the rule that promissory estoppel may remove an oral contract from the requirements of the UCC statute of frauds. 10 Samuel Williston, A Treatise on the Law of Contracts § 27:18, 250 (Richard A. Lord ed., 4th ed. 2011); e.g., B&W Glass v. Weather Shield Mfg., 829 P.2d 809, 814 (Wyo. 1992); Allied Grape Growers v. Bronco Wine Co., 249 Cal. Rptr. 872, 878 (Cal. Ct. App. 5th 1988). These jurisdictions rely on UCC § 1-103 (the equivalent of § 30-1-103, MCA), which states, “Unless displaced by the particular provisions of this code, the principles of law and equity, including . . . estoppel,” may supplement the UCC’s provisions. The majority jurisdictions reason that because promissory estoppel is not explicitly displaced by any particular provision of the UCC, § 1-103 allows for promissory estoppel to supplement the UCC statute of frauds. See, e.g., B&W Glass, 829 P.2d at 814 (citing Allen M. Campbell Co., Gen. Contractors, Inc. v. Va. Metal Indus., Inc., 708 F.2d 930 (4th Cir. 1983); Ralston Purina Co. v. McCollum, 611 S.W.2d 201 (Ark. Ct. App. 1981); Potter v. Hatter Farms, Inc., 641 P.2d 628 (Or. Ct. App. 1982)). ¶31 In addition, courts from other jurisdictions have cited our holding in Northwest Potato Sales as support for the proposition that promissory estoppel—not just estoppel by silence—may serve as an exception to the UCC statute of frauds. Hoffmann v. Boone, 708 F. Supp. 78, 81 (S.D.N.Y. 1989); B&W Glass, 829 P.2d at 818. ¶32 We have referred to other jurisdictions when interpreting a “uniform act” in order to “effectuate the general purpose of making uniform the [law] among states enacting it.” McCone Cnty. Fed. Credit Union v. Gribble, 2009 MT 290, ¶ 23, 352 Mont. 254, 14 216 P.3d 206. We find the reasoning of these courts persuasive and consistent with our own previous construction of § 30-1-103, MCA. Like other forms of estoppel, promissory estoppel is not “displaced by the particular provisions” of the UCC. Section 30-1-103, MCA. ¶33 We therefore conclude that promissory estoppel may apply to remove a transaction from the UCC statute of frauds. The District Court thus did not err in denying STEMCO summary judgment and allowing the question whether S&P could satisfy the promissory estoppel exception to proceed to trial. ¶34 2. Whether the District Court erred in submitting the questions of part performance and promissory estoppel to the jury. ¶35 Having concluded that the Program Agreement did not clearly evidence the final expression of the parties’ agreement, the District Court permitted S&P to introduce evidence at trial of the alleged oral contract over STEMCO’s ongoing objection. At the close of S&P’s case in chief, the District Court denied STEMCO’s motion for judgment as a matter of law, reasoning that sufficient evidence existed to warrant the jury in finding that both the promissory estoppel and part performance exceptions applied to the alleged oral contract. STEMCO argues that the statute of frauds rendered the alleged oral contract unenforceable and that neither the part performance nor the promissory estoppel exceptions applied to this case. A. Part Performance ¶36 STEMCO argues that the part performance exception to the statute of frauds does not apply to the alleged oral contract. STEMCO asserts that even if the part performance 15 doctrine did apply, S&P’s actions after the creation of the alleged oral contract did not constitute part performance. S&P argues in response that it made substantial investments in reliance on the contract, and that these investments constituted S&P’s part performance of the contract. ¶37 Among the enumerated exceptions to the UCC statute of frauds, a contract that does not satisfy the writing requirement still may be enforceable “with respect to goods for which payment has been made and accepted or which have been received and accepted.” Section 30-2-201(3)(c), MCA. The comments to the Montana UCC explain that “‘[p]artial performance’ as a substitute for the required memorandum can validate the contract only for the goods which have been accepted or for which payment has been made and accepted.” Section 30-2-201, MCA, cmt. 2 (emphasis added). ¶38 S&P’s theory was that STEMCO promised that S&P would retain the right to sell remanufactured brakes to Kenworth for a period of five years. S&P argued that because it invested heavily in inventory, facilities, equipment, and personnel in reliance on the oral agreement, STEMCO should not be allowed to repudiate the agreement because it was not in writing. S&P relies on cases outside the UCC to argue that partial performance may render an oral contract enforceable. See Morton v. Lanier, 2002 MT 214, 311 Mont. 301, 55 P.3d 380; Quirin v. Weinberg, 252 Mont. 386, 830 P.2d 537 (1992); Somont Oil Co. v. Nutter, 228 Mont. 467, 743 P.2d 1016 (1987). But “litigation arising out of a transaction” for the sale of goods, like the transaction here, “should be controlled by the principles” of the UCC. Norwest Bank Billings, 210 Mont. at 422, 16 684 P.2d at 1070. Unlike estoppel, the principle of partial performance is “displaced by the particular provisions of [the UCC].” Section 30-1-103, MCA. The “part performance” exception to the UCC statute of frauds is much more limited than the part performance doctrine outside the UCC context. STEMCO’s alleged promise for a five- year arrangement does not pertain to “goods for which payment has been made and accepted or which have been received and accepted.” Section 30-2-201(3)(c), MCA. S&P thus cannot rely on a “partial performance” exception to exempt the alleged oral contract from the UCC statute of frauds. ¶39 The District Court erred in denying STEMCO’s motion for judgment as a matter of law to the extent that it relied on the part performance exception. B. Promissory Estoppel ¶40 STEMCO challenges the District Court’s determination that sufficient evidence existed to support a jury finding that S&P met the required elements of promissory estoppel. STEMCO contends that S&P was required to demonstrate that STEMCO intended to mislead S&P and that no such evidence was offered. ¶41 S&P presented testimony at trial from Joe Smith, a STEMCO representative, that Smith met with S&P’s owner, Joe Hoppman, to discuss making S&P an authorized remanufacturer. Smith testified that he guaranteed Hoppman that if S&P became an authorized remanufacturer, S&P would retain the right to sell remanufactured brakes to Kenworth for a period of five years. S&P introduced evidence of the investments it made after the alleged oral contract was formed, and offered testimony that such investments 17 were made in reliance on STEMCO’s promise. Hoppman and S&P’s sales manager, Tony Parish, testified that they told Smith prior to the formation of the oral contract that S&P would have to invest a substantial amount of money in brake parts, remanufacturing equipment, and additional storage space in Salt Lake City in order to meet Kenworth’s demand for remanufactured brakes. S&P presented testimony that when it lost Kenworth’s sales, S&P incurred substantial economic losses in the form of wasted overhead expenses on excess inventory, lost sales, and a long-term lease on a warehouse it no longer needed. ¶42 STEMCO argued that the evidence was insufficient because promissory estoppel requires a showing that the promisor intended to mislead the promisee. It proposed an instruction that would have included a requirement that “STEMCO had an intent to mislead S&P Brake Supply, or a willingness that S&P Brake Supply would be deceived, and S&P Brake Supply was misled to the extent that applying the statute of frauds would operate to perpetrate a fraud.” ¶43 The District Court denied STEMCO’s proposed instruction. It instructed the jury that the promissory estoppel doctrine served as an exception to the statute of frauds and that S&P had to prove the following elements: “(1) a promise clear and unambiguous in its terms; (2) reliance on the promise by the party to whom the promise was made; (3) reasonableness and foreseeability of the reliance; and (4) the party asserting the reliance must be injured by the reliance.” STEMCO argues on appeal that the court erroneously refused its instruction on a fifth element. 18 ¶44 This Court has held that a party asserting promissory estoppel must prove four elements: a clear and unambiguous promise, reliance by the promisee, reasonableness and foreseeability of the reliance, and resulting injury to the promisee. Turner v. Wells Fargo Bank, N.A., 2012 MT 213, ¶ 24, 366 Mont. 285, 291 P.3d 1082 (citing Keil, 188 Mont. at 462, 614 P.2d at 506). We held in Northwest Potato Sales that estoppel by silence requires an additional showing of an intent to mislead, because “mere silence cannot work an estoppel.” N.W. Potato Sales, 208 Mont. at 317, 678 P.2d at 1141. But, although they are related doctrines, equitable estoppel, promissory estoppel, and estoppel by silence are “three legally distinct estoppel claims,” and we have “created multi-factor tests for each of those three distinct estoppel claims.” Turner, ¶ 22. Unlike estoppel by silence, promissory estoppel requires an express “clear and unambiguous” promise. Turner, ¶ 24. This element obviates the concern about “mere silence” working an estoppel. The elements of promissory estoppel are distinct from the elements of estoppel by silence. We declined in Turner to “merge” the elements of equitable estoppel and promissory estoppel, Turner, ¶ 23, and we decline here to merge the elements of promissory estoppel and estoppel by silence. Our case law establishes that promissory estoppel does not require a showing of an intent to mislead. The District Court thus “fully and fairly instruct[ed] the jury” on the elements of promissory estoppel. Goles, ¶ 9. It did not abuse its discretion in refusing STEMCO’s proposed instruction. See Goles, ¶ 9. 19 ¶45 We conclude that the District Court properly submitted S&P’s promissory estoppel claim to the jury. ¶46 3. Whether the District Court abused its discretion in excluding evidence proffered by STEMCO to rebut S&P’s breach of contract and damages claims. ¶47 STEMCO attempted to elicit testimony at trial regarding “core credits” that S&P owed to Kenworth. Kenworth accumulated “core credits” by delivering used brake “cores” to S&P, which in turn used the cores in its brake remanufacturing process. S&P would credit Kenworth’s account balance for the value of these cores. STEMCO sought to introduce testimony that S&P owed unpaid “core credits” to Kenworth and that S&P had failed to provide Kenworth with “core credit reports” in a timely manner. STEMCO attempted further to elicit testimony and admit evidence regarding the sales that Gorilla Brake, S&P’s replacement, made to Kenworth after Kenworth broke ties with S&P. ¶48 The District Court prohibited STEMCO from eliciting testimony that S&P owed money to Kenworth in the form of these “core credits.” The court reasoned that this issue was not relevant to the case at hand, and that it did not wish to “open the door to trying a case concerning S&P and Kenworth.” The District Court also excluded testimony and evidence of Gorilla Brake’s sales to Kenworth, reasoning that such evidence was irrelevant and that its prejudicial effect outweighed its probative value. ¶49 STEMCO argues on appeal that the District Court erred by excluding evidence and testimony of the “core credits” S&P owed to Kenworth and of Gorilla Brake’s sales of remanufactured brakes to Kenworth. It contends that evidence of the “core credits” S&P owed to Kenworth was relevant to rebut S&P’s claim of lost profits by showing that 20 S&P owed money to Kenworth. This evidence was relevant also, in STEMCO’s view, to show that S&P lost Kenworth’s business as a result of its own poor service rather than as a result of STEMCO’s alleged breach of contract. STEMCO claims that the District Court’s exclusion of this evidence prejudiced its ability to demonstrate that S&P lost Kenworth’s business because of S&P’s own failings and not because of STEMCO’s conduct. ¶50 STEMCO argues that the evidence of Gorilla Brake’s sales to Kenworth was relevant to rebut S&P’s damages claim. S&P had based its lost profits calculation on its history of sales to Kenworth. STEMCO contends that Gorilla Brake’s actual sales of remanufactured brakes to Kenworth would have provided a more accurate basis for calculating the sales S&P could have expected to make to Kenworth had it kept Kenworth’s business. ¶51 Montana law provides that relevant evidence is generally admissible. M. R. Evid. 402. But relevant evidence “may be excluded if its probative value is substantially outweighed by . . . confusion of the issues, . . . misleading the jury, . . . [or] waste of time.” M. R. Evid. 403. A district court does not abuse its discretion in excluding evidence that it reasonably determines is “not probative of the central issues in the case” and “would likely lead to unnecessary confusion.” Tarlton v. Kaufman, 2008 MT 462, ¶ 39, 348 Mont. 178, 199 P.3d 263. Even if a court abuses its discretion in an evidentiary ruling, that abuse “does not necessarily constitute reversible error.” In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, 995 P.2d 427. A court’s exclusion of evidence 21 constitutes reversible error only if “a substantial right of the party is affected.” M. R. Evid. 103(a). We have held that a substantial right of a party is not affected unless the challenged evidence is “of such character to have affected the result” of the case. In re A.N., ¶ 55 (citation and internal quotation omitted). ¶52 Here, the District Court concluded that evidence of the “core credits” that S&P owed to Kenworth and of Gorilla Brake’s sales to Kenworth did not directly pertain to the central issue in the case—a breach of contract dispute between S&P and STEMCO. Kenworth and Gorilla Brake were not parties to the action. The court expressed concern that allowing STEMCO to introduce evidence regarding S&P’s business dealings with Kenworth or Kenworth’s transactions with Gorilla Brake would consume a substantial amount of time and lead to a mini-trial about issues collateral to the case. The District Court’s rulings are entitled to broad deference on appeal. Stokes, ¶ 11. ¶53 The District Court did not prevent STEMCO from introducing evidence to support its contention that S&P lost Kenworth’s business as a result of its own failings rather than anything STEMCO did. The court permitted STEMCO to introduce an email from Mike McKay, a Kenworth employee, to Tony Parish, S&P’s sales manager, in which McKay complained about S&P’s failure to provide “core reports” upon request. McKay notified Parish of Kenworth’s dissatisfaction with S&P and suggested that S&P might lose Kenworth’s business as a result. The court admitted deposition testimony from McKay and another Kenworth employee, William Peterson, that Kenworth stopped buying 22 remanufactured brakes from S&P because of the poor quality of the brakes and because of S&P’s delays in shipping product to Kenworth. ¶54 Despite the District Court’s exclusion of some of STEMCO’s proferred evidence, STEMCO was able to present a defense that S&P lost Kenworth’s business because of S&P’s own failings and not because of STEMCO’s actions. STEMCO has not persuaded us that the court’s exclusion of evidence affected its substantial rights or the outcome of the case. See M. R. Evid. 103(a); In re A.N., ¶ 55. The court likewise did not abuse its discretion in determining that evidence of the “core credits” S&P owed to Kenworth and of Gorilla Brake’s sales to Kenworth would have confused the issues, was not relevant to the central issues in the case, and was therefore inadmissible. See Stokes, ¶ 11. ¶55 4. Whether the District Court erred in denying costs to STEMCO for prevailing on its counterclaim. ¶56 The District Court awarded costs to S&P, but denied them to STEMCO. The court reasoned that even though STEMCO prevailed on its counterclaim, S&P prevailed on the “main issue in controversy”—its breach of contract claim against STEMCO. The court thus concluded that S&P was the only party entitled to costs. ¶57 STEMCO argues that the District Court erred in failing to award costs to STEMCO. In STEMCO’s view, it was entitled to costs because the jury awarded it the full balance of its counterclaim. ¶58 Montana law provides that “[c]osts are allowed, of course, to the plaintiff upon a judgment in the plaintiff’s favor in the following cases: . . . (3) in an action for the recovery of money or damages, exclusive of interest, when plaintiff recovers over $50.” 23 Section 25-10-101(3), MCA. We have held that if “a party initiates a law suit [sic], the defendant counterclaims, and the judgment awards both parties part of the relief they seek, the party prevailing on the main issue in controversy in the case must be allowed costs.” Medhus v. Dutter, 184 Mont. 437, 447, 603 P.2d 669, 674 (1979). ¶59 S&P initiated the breach of contract lawsuit against STEMCO, and STEMCO counterclaimed. The judgment awarded “both parties part of the relief they [sought].” Medhus, 184 Mont. at 447, 603 P.2d at 674. The jury’s verdict awarded S&P relief on the breach of contract claim but not on STEMCO’s counterclaim. Likewise, STEMCO did not prevail on all of its claims. It lost the argument that it did not breach an oral contract with S&P. That was the theory that led to a net judgment in favor of S&P. S&P prevailed “on the main issue in controversy in the case”—its claim that STEMCO breached an oral contract. Medhus, 184 Mont. at 447, 603 P.2d at 674; cf. Rod & Rifle Inn v. Giltrap, 273 Mont. 232, 236, 902 P.2d 38, 41 (1995) (holding that where jury found neither party entitled to recover damages, defendant prevailed on the main issue in controversy by defeating plaintiff’s claim for breach of contract damages). As such, S&P was entitled to costs. Medhus, 184 Mont. at 447, 603 P.2d at 674; see also Lewistown Miller Constr. Co. v. Martin, 2011 MT 325, ¶ 32, 363 Mont. 208, 271 P.3d 48 (holding that where plaintiff obtained a net judgment in its favor and defendant won on its counterclaim, defendant was not the prevailing party and was not entitled to contractual attorney fees). Because STEMCO did not prevail on the main issue in controversy, it 24 was not entitled to costs. The District Court was correct in denying costs to STEMCO. See Total Indus. Plant Servs., ¶ 61. CONCLUSION ¶60 We conclude that the statute of frauds did not bar the alleged oral contract. The District Court correctly determined that a genuine issue of fact existed as to the parties’ intent in entering into an agreement. The court properly admitted evidence of STEMCO’s promise that formed the alleged oral contract. Although the court improperly submitted the question of part performance to the jury, the evidence was sufficient for the court to allow the jury to consider promissory estoppel. The court correctly instructed the jury on the four elements of promissory estoppel and properly refused STEMCO’s proposed instruction including a fifth element of intent to mislead. ¶61 We conclude further that the District Court did not abuse its discretion in excluding STEMCO’s proffered evidence of “core credits” and Gorilla Brake’s sales, based on its conclusion that the evidence was not probative of the central issues in the case and was likely to confuse the jury. Finally, STEMCO did not prevail on the main issue in controversy—the breach of contract claim—and therefore was not entitled to costs. ¶62 The District Court’s judgment is affirmed. /S/ BETH BAKER 25 We concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ JIM RICE	December 13, 2016
f79a2df2-7a92-4265-9aef-fb4bba4169d9	Estate of A.H.E.	2016 MT 315N	DA 16-0304	Montana	Montana Supreme Court	DA 16-0304 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 315N IN THE MATTER OF THE ESTATE OF: A.H.E., an Incapacitated Person. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DG 14-132 Honorable Ingrid G. Gustafson, Presiding Judge COUNSEL OF RECORD: For Appellant: David Duke, Duke Law Firm, Billings, Montana For Appellee: Michael Usleber, Terry L. Seiffert, Attorneys at Law, Billings, Montana Submitted on Briefs: November 2, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 16-0304 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 The parties in this case are involved in two court proceedings: a guardianship proceeding in the Thirteenth Judicial District Court, Yellowstone County (hereinafter Yellowstone District Court), and a partnership removal proceeding in the Eighteenth Judicial District Court, Gallatin County (hereinafter Gallatin District Court). It is an order in the Yellowstone District Court proceeding that is the subject of this appeal, but the Gallatin District Court proceeding will be referenced when necessary. ¶3 A.H.E. is 90 years old and is incapacitated, suffering from dementia and blindness. She is the mother of son Ian and daughter Cindy. In 2006, A.H.E. and her husband, who died in 2010, established a limited partnership named StarFire L.P. A.H.E. owns a 96.34% interest in StarFire and Cindy and Ian each own 1.83% interest. A.H.E. has lived with and been cared for by Ian since January 2011. Until December 2014, A.H.E. received approximately $3,300/month in pension, social security and rental property income from StarFire. After December 2014, as discussed below, A.H.E. stopped receiving rental income from StarFire and receives approximately $2,350/month in social security and pension. 3 ¶4 On October 24, 2014, Starfire brought an action against Ian in the Gallatin District Court seeking to remove Ian as a general partner of StarFire. On October 29, 2014, Ian, acting pro se, petitioned the Yellowstone District Court to be appointed temporary and permanent guardian and conservator of A.H.E. Ian alleged that Cindy was financially exploiting their mother through control of StarFire. He claimed that Cindy was attempting to remove him as an equal general partner and that she intended to sell A.H.E.’s assets and retain the funds. Following a hearing in late November 2014, the Yellowstone District Court appointed Ian as his mother’s permanent guardian and Joyce Wuertz, an independent accountant, as A.H.E.’s conservator. ¶5 In December 2014, the Gallatin District Court issued an order acknowledging a $60,000 sale of StarFire property to the Amsterdam School District and ordered that the funds be placed with the Gallatin District Court. The court also prohibited Ian and Cindy from withdrawing any funds from StarFire’s bank accounts without each other’s written consent or approval by the court. In a January 2015 order, the Gallatin District Court issued an order declining to consider pending motions in the injunction case until newly-appointed Wuertz had the opportunity to develop her positions in the Yellowstone District Court guardianship proceeding. In March 2015, Wuertz attempted to resolve the disputes between the siblings; however, no stipulation or agreement could be established. Consequently, for several months Wuertz was without funds to pay StarFire’s expenses or the full expenses for A.H.E.’s care. ¶6 In April 2016 Ian, acting pro se, moved to have Wuertz removed as conservator. Ian asserted, among other things, that Wuertz was ineffective in securing relevant records 4 necessary to her duties as conservator and that she failed to properly evaluate A.H.E.’s assets or take a “position on behalf of A.H.E. regarding income.” Wuertz moved to have the Motion to Remove Conservator dismissed on the grounds that Ian’s motion did not make a prima facie case under § 72-5-414, MCA. Ian objected to Wuertz’s motion and on May 10, 2016, the Yellowstone District Court denied Ian’s motion to remove Wuertz. Ian appeals. We affirm. ¶7 Ian argues that the Yellowstone District Court erred by denying his motion to remove the conservator. However, we do not review a district court’s denial of a request to remove a conservator for error. We review such a decision for an abuse of discretion. See § 72-5-423, MCA (“[A] conservator is to act as a fiduciary and shall observe the standards of care applicable to trustees.”); In re Baird, 2009 MT 81, ¶ 11, 349 Mont. 501, 204 P.3d 703 (Removal of a trustee is an exercise of discretion by the court.). See also In re Guardianship of Saylor, 2005 MT 236, ¶ 17, 328 Mont. 415, 121 P.3d 532. A district court abuses its discretion when it acts arbitrarily without employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. In re Estate of Hannum, 2012 MT 171, ¶ 18, 366 Mont. 1, 285 P.3d 463. ¶8 Section 72-5-414, MCA, governs removal of a conservator for cause and states: The court may remove a conservator for good cause, upon notice and hearing, or may accept the resignation of a conservator. After the conservator’s death, resignation, or removal, the court may appoint another conservator. A conservator so appointed succeeds to the title and powers of the predecessor. ¶9 Section 72-38-706, MCA, cited by both Ian and Wuertz in their appellate briefs, is applicable as well and governs removal of a trustee. It provides: 5 (1) The settlor, a cotrustee, or a beneficiary may request the court to remove a trustee, or a trustee may be removed by the court on its own initiative. (2) The court may remove a trustee if: (a) the trustee has committed a serious breach of trust; (b) lack of cooperation among cotrustees substantially impairs the administration of the trust; (c) because of unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively and impartially, the court determines that removal of the trustee best serves the interests of the beneficiaries; or (d) there has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available. (3) Pending a final decision on a request to remove a trustee or in lieu of or in addition to removing a trustee, the court may order appropriate relief under 72-38-1001(2) as may be necessary to protect the trust property or the interests of the beneficiaries. ¶10 Ian argues that under both §§ 72-5-414, MCA, and 72-38-706(2), MCA, he established a prima facie case for removal. He claims that he set forth Wuertz’s deficiencies such as failure to secure necessary financial records and failure to properly coordinate insurance payments and that he cited relevant statutes in his argument. He states that he has established a prima facie case that Wuertz’s actions and inactions show her unfitness, her unwillingness to fulfill her duties and her failure to manage A.H.E.’s assets. ¶11 Wuertz counters that she fulfilled her duties as conservator of A.H.E.’s estate and that Ian’s alleged grounds for removal do not meet the standard for removal. 6 ¶12 A prima facie case is “[t]he establishment of a legally required rebuttable presumption,” or a “party’s production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party’s favor.” Black’s Law Dictionary 1382 (Bryan A. Garner ed., 10th ed. 2014). Section 72-5-414, MCA, requires that Ian establish “good cause” to remove Wuertz as conservator. “Good cause” is not defined by the statute. However, § 72-38-706(2)(a)-(d), MCA, governing the removal off a trustee, sets forth four specific circumstances under which a trustee may be removed. It is undisputed that Ian did not allege or produce evidence of cause under § 72-38-706(2)(a), (b), and (d), MCA. ¶13 Additionally, while Ian claims to have set forth evidence of “unfitness, unwillingness, or persistent failure” of Wuertz to administer A.H.E.’s estate effectively and impartially as required by § 72-38-706(2)(c), MCA, the Yellowstone District Court reviewed the record and apparently concluded that Ian failed to produce evidence to support the allegation. While the court did not issue any factual findings in its order, Wuertz asserts that Ian demanded that she obtain financial records for sixteen years, and that she conduct an audit of StarFire finances after another accountant had already conducted such an audit. Wuertz further maintains that Ian’s refusal to join in a stipulation with his sister concerning the release of funds prohibited her from effectively performing her responsibilities. ¶14 We conclude, based upon our review of the record, that the Yellowstone District Court did not abuse its discretion in denying Ian’s motion to remove Wuertz as conservator. 7 ¶15 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the Yellowstone District Court’s ruling was not an abuse of discretion. ¶16 We affirm. /S/ MICHAEL E WHEAT We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE	November 29, 2016
7ba831a8-d6d5-499e-9f6d-5531ebffb00a	City of Bozeman v. King	2016 MT 300	DA 15-0534	Montana	Montana Supreme Court	DA 15-0534 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 300 CITY OF BOZEMAN, Plaintiff and Appellee, v. JAMES KING, Defendant and Appellant. APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 15-52B Honorable Mike Salvagni, Presiding Judge COUNSEL OF RECORD: For Appellant: James King (Self-Represented), Bozeman, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana Greg Sullivan, Bozeman City Attorney, Ed Hirsch, Prosecutor, Bozeman, Montana Submitted on Briefs: October 12, 2016 Decided: November 22, 2016 Filed: __________________________________________ Clerk 11/22/2016 Case Number: DA 15-0534 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 James King was convicted of disorderly conduct on September 12, 2014, in the Bozeman Municipal Court. Acting pro se, he appealed the verdict to the Eighteenth Judicial District Court, Gallatin County. The District Court, in a comprehensive opinion and order, declined appellate jurisdiction and remanded the matter to the Municipal Court for enforcement of King’s sentence. King appeals. We affirm. ISSUE ¶2 A restatement of the issue on appeal is whether the District Court erred when it declined to exercise jurisdiction over King’s appeal from the Municipal Court. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On November 23, 2013, King was involved in a physical altercation with John Cernick in Bozeman, Montana. The responding officers cited both King and Cernick for disorderly conduct. Cernick subsequently entered a guilty plea while King pled not guilty. ¶4 King’s trial was initially set for April 2014 but was reset to May 16, 2014, to accommodate the court’s schedule. The May 16 trial was vacated to allow King to file a motion to dismiss which, following a hearing, the court denied. At calendar call on July 2, trial was confirmed for July 8, 2014. Both King and the State agreed to that date. Later that day, King reappeared at the close of calendar call and informed the court that his out-of-state eyewitness could not be present on July 8 but could be present on July 22. King indicated that he had arranged to switch trial dates with another defendant so that 3 King’s trial could take place on July 22, 2014. The audio recording of the 1.5 minute conversation does not indicate that State’s counsel was present, nor did King represent that the State agreed or objected to the change in trial date. The court rescheduled the trial for July 22, 2014. Subsequently, the State moved to continue the trial on the grounds that the arresting officer could not be present on that date. Over King’s objection, the court granted the State’s motion and King moved to dismiss on speedy trial grounds. The court instructed King to file a written motion on the matter, which he did in August 2014. The Municipal Court subsequently denied King’s motion without a written order, and conducted the trial on September 12, 2014. Following a guilty verdict, King was sentenced to pay a $100 fine and $135 in surcharges and fees. No jail time was ordered. King appealed his sentence to the District Court, asserting eight grounds for appeal. The District Court obtained the Municipal Court record, reviewed it, and on July 1, 2015, issued its Memorandum Opinion and Order (Order). ¶5 The District Court initially noted that § 46-17-404(2), MCA, provides that a party may appeal to the district court from a judgment of municipal court when the amount in controversy exceeds $200. The court further observed that Rule 1(b)(2) of the Uniform Municipal Court Rules of Appeal to District Court, Title 25, Chapter 30, MCA (U.M.C.R. App.), limits a district court’s appellate jurisdiction over criminal cases to cases where the amount in controversy exceeds $300. The court recognized, however, that Rule 3, U.M.C.R. App., and § 46-17-404(2)(b), MCA, grant the district court discretion to exercise appellate jurisdiction notwithstanding the amount in controversy in the “interests of justice.” Excluding the surcharge and fees imposed in King’s sentence, 4 as required by City of Kalispell v. Koestner, 2001 MT 53, ¶ 12, 304 Mont. 315, 21 P.3d 622, the court determined that King’s $100 fine did not satisfy the threshold amounts set forth in the applicable rules or statutes. While the District Court acknowledged that neither the rules nor the statutes defined “interests of justice,” it concluded that it would accept appellate jurisdiction if King’s issues were meritorious. Consequently, the District Court addressed each of King’s issues and determined that it would not exercise appellate jurisdiction on “interests of justice” grounds as it was unlikely that King would prevail on any of the issues raised. ¶6 King filed a timely appeal. STANDARD OF REVIEW ¶7 The district court’s determination of whether it has the power to review a municipal court’s decision is a question of law which we review to determine whether its interpretation is correct. Koestner, ¶ 8 (citation omitted). DISCUSSION ¶8 Did the District Court err when it declined to exercise jurisdiction over King’s appeal from the municipal court? ¶9 Continuing to act pro se, King generally argues that the District Court’s denial of his motion to appeal constituted an abuse of discretion and error. He challenges the court’s determinations that his issues lacked merit and that he was not likely to prevail on appeal. ¶10 King presents numerous specific arguments on appeal alleging District Court, Municipal Court, and State error, abuse of discretion, misconduct, and bias. He first 5 asserts that the District Court intentionally misinterpreted one of his issues presented on appeal and consequently failed to address “the most important basis of the appeal,” i.e., whether, over King’s objection, the Municipal Court erred when it granted the State’s motion to continue the July 22, 2014 trial. King claims that the District Court purposely misconstrued his argument as an appeal of the Municipal Court’s May 2014 ruling pertaining to video teleconferencing of an out-of-state witness. He argues that the District Court’s failure to address the true issue in its Order was a violation of multiple rules of judicial conduct. King’s claim is unsupported by the record and consists solely of accusations and allegations without legal argument or analysis. The record indicates that the District Court gave generous consideration to King and his appeal and granted him leniency as a self-represented litigant. The court entered a 32-page opinion and order, offering detailed analysis and conclusions. We reject King’s unsubstantiated argument of judicial misconduct and bias. ¶11 We next address King’s claim that the Municipal Court abused its discretion by granting the State’s request for a continuance to the July 22 trial. The record reflects that the State argued that King failed to consult the State prior to obtaining the court’s permission to reschedule the trial from July 8 to July 22. As noted above, the audio recording between King and the court does not indicate that State’s counsel was present. The State maintains that upon learning that the court had moved the trial date to July 22, it immediately moved to reschedule on the grounds that its witness could not be present on that date. The court initially denied the State’s motion but after conducting a hearing on the motion, it granted it over King’s objection. While King challenges this decision, it 6 was nonetheless within the Municipal Court’s discretion. State v. Gleed, 2014 MT 151, ¶ 10, 375 Mont. 286, 326 P.3d 1095. The court heard the arguments presented by the parties and the rationale for a continuance. Consequently, the Municipal Court was in a better position than this Court to render this decision based upon the circumstances of this case. We will not disturb a discretionary ruling absent a finding that the court acted “arbitrarily, without employment of conscientious judgment, or exceed[ed] the bounds of reason resulting in substantial injustice.” In re T.N.-S., 2015 MT 117, ¶ 16, 379 Mont. 60, 347 P.3d 1263 (internal citations omitted). We conclude the court’s decision did not constitute an abuse of its discretion. ¶12 King’s remaining issues and his claims that these issues have merit, include: (1) the State violated the discovery process; (2) the Municipal Court and the State “suppressed evidence” that would have benefitted King; (3) the Municipal Court chose the State’s non-critical witness over his critical witness in violation of his Montana and United States constitutional rights; (4) the State was judicially estopped from moving for a continuance from the July 22 trial date based upon its acknowledgement that such continuance would violate King’s right to a speedy trial; (5) the Municipal Court “ignored” his August 2014 motion to dismiss after the court ordered that he file it; and (6) the evidence presented in this case was insufficient to convict him. ¶13 We conclude the District Court neither erred nor abused its discretion in its considered and detailed Order addressing the merits of each of these issues. As it was unlikely that King would have prevailed on these claims had the District Court exercised appellate jurisdiction, the interests of justice did not demand that it do so. Whether the 7 “interests of justice” would be served by accepting appellate jurisdiction is soundly within the District Court’s broad discretion. Section 46-17-404(2)(b), MCA. ¶14 As the District Court did not abuse its discretion in concluding the interests of justice would not be furthered by allowing King’s appeal, we affirm. /S/ MICHAEL E WHEAT We Concur: /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JIM RICE Justice James Jeremiah Shea, specially concurring. ¶15 In his opening brief to this Court, King states that his argument on appeal to the District Court “strictly revolved around the Municipal Court’s decision to [o]verrule the defense’s objection to [the] State’s continuance of the July 22, 2014 trial date.” On that point, I agree that the Municipal Court did not abuse its discretion in continuing the July 22 trial date, and I would affirm on that basis. I write separately because the Court incorrectly perpetuates a misinterpretation of the statute and rule regarding the threshold amount in controversy necessary to appeal a municipal court decision to district court. ¶16 As the Court correctly notes, both § 46-17-404(2), MCA, and Rule 1(b)(2), U.M.C.R. App., determine the jurisdictional threshold for appealing a municipal court 8 judgment to district court by the “amount in controversy.”1 Opinion, ¶ 5. Upon his conviction in Municipal Court, “King was sentenced to pay a $100 fine and $135 in surcharges and fees.” Opinion, ¶ 4. In appealing his case to the District Court, King did not just challenge the $100 fine; he sought reversal of his conviction and dismissal of his entire case on multiple grounds. If his appeal was successful, King would have eliminated the fine, surcharges, and fees, totaling $235. Thus, the “amount in controversy” that was the subject of King’s appeal was $235. ¶17 The Court, however, ignores the fact that King was contesting all of the monetary obligations imposed upon him, and erroneously concludes that the “amount in controversy” was merely the fine. The Court arrives at this erroneous conclusion by citing Koestner for the proposition that it requires “[e]xcluding the surcharge and fees imposed in King’s sentence.” Opinion, ¶ 5 (citing Koestner, ¶ 12). However, in Koestner, the interpretation of what constitutes the “amount in controversy” for determining district court jurisdiction of a municipal court appeal was not the issue. That being noted, we did limit our consideration of the jurisdictional threshold to only the fine imposed; thus, I agree that this is a fair reading of Koestner. To the extent that Koestner could be read as such, it is incorrect and I would overrule it. ¶18 In Voerding v. State, 2006 MT 125, ¶ 16, 332 Mont. 262, 136 P.3d 502, we concluded that “the plain meaning of the word ‘fine’ . . . does not encompass fees, costs, 1 I note that there is a discrepancy between the threshold amount in controversy set by § 46-17-404(2), MCA ($200), and Rule 1(b)(2), U.M.C.R. App. ($300). However, resolution of this discrepancy is mooted by the Court’s incorrect interpretation of the “amount in controversy” as being limited to the fine imposed. 9 charges, or any other court-imposed financial obligations.” We also concluded that there is a “clear statutory distinction between fines and other court-imposed financial obligations.” Voerding, ¶ 19. When it drafted § 46-17-404(2), MCA, the Legislature could have used the term “fine” in setting the threshold for district court jurisdiction of a municipal court appeal. It did not. It chose instead to use the term “amount in controversy.” In construing a statute, our duty “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. Moreover, “statutory language must be construed according to its plain meaning . . . .” Infinity Ins. Co. v. Dodson, 2000 MT 287, ¶ 46, 302 Mont. 209, 14 P.3d 487 (citation omitted). Neither § 46-17-404(2), MCA, nor Rule 1(b)(2), U.M.C.R. App., limits the district court’s appellate jurisdiction based on the amount of the fine. Rather, the jurisdictional limit is expressly based on the “amount in controversy.” By interpreting the term “amount in controversy” as applying only to King’s $100 fine, the Court not only fails to construe the statute according to its plain meaning, it both omits the term “amount in controversy” and inserts the term “fine,” thus managing to violate just about every rule of statutory construction in the interpretation of a single statute. ¶19 For the foregoing reasons, although I concur in the result the Court reaches, I disagree with its conclusion that the District Court did not have jurisdiction to hear the appeal from the Municipal Court. /S/ JAMES JEREMIAH SHEA	November 22, 2016
4bdba5f7-7f32-45b6-a4d7-12d15bcf36af	State v. Massey	2016 MT 316	DA 16-0170	Montana	Montana Supreme Court	DA 16-0170 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 316 STATE OF MONTANA, Plaintiff and Appellee, v. KELLY RAY MASSEY, JR., Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 14-393 Honorable John W. Larson, Presiding Judge COUNSEL OF RECORD: For Appellant: Craig Shannon, Attorney at Law, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Kirsten H. Pabst, Missoula County Attorney, James McCubbin, Deputy Missoula County Attorney, Missoula, Montana Submitted on Briefs: October 19, 2016 Decided: December 6, 2016 Filed: __________________________________________ Clerk 12/06/2016 Case Number: DA 16-0170 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Appellant Kelly Ray Massey, Jr. (Massey) appeals the order of the Fourth Judicial District Court, Missoula County, denying his motion to suppress. We affirm and address the following issue: Did the District Court err by determining there was particularized suspicion for the traffic stop of Massey’s vehicle? FACTUAL AND PROCEDURAL BACKGROUND ¶2 At approximately 1:00 a.m. on June 16, 2014, Trooper Lynwood Bateman observed a sport-utility vehicle with black plastic, logo-style covers on its tail lights, and initiated a traffic stop because the covers appeared to obscure and diminish the visibility of the vehicle’s tail lights. During the traffic stop, Bateman observed signs that Massey was impaired by drugs and asked him to step out of his vehicle. As Massey stepped out, Bateman observed a small, plastic bag with possible drug residue in plain view in the passenger door pocket. Massey stated the bag was not his and declined to consent to a search of the vehicle. Bateman seized the vehicle and released Massey. A subsequent search of the vehicle pursuant to a search warrant revealed drugs, a handgun, drug paraphernalia, and other items leading to the filing of charges against Massey for criminal possession of dangerous drugs with intent to distribute, a felony, and criminal possession of dangerous drugs/opiates, a felony. ¶3 Massey moved to suppress the evidence found in his vehicle on the ground that Bateman lacked particularized suspicion to initiate a traffic stop. At the suppression 3 hearing, Bateman testified that he was approximately 500 feet behind Massey’s vehicle when he noticed the tail light covers, which he stated “were black and covered up the light.” Bateman initiated the traffic stop “because [the tail light covers] were obscuring and diminishing the visibility of the lights to the rear,” and he needed to stop the vehicle to determine if the lights were visible from more than 1,000 feet, the distance required by statute. ¶4 Under cross examination, Bateman testified that the tail light covers functioned as stencils, which “left portions of the red visible, but they obscured it.” The following exchange also took place: Q. Okay. Do you see [these stencil-like covers] fairly often in Missoula in the line of work that you’re in? A. I see them, yeah, I would say fairly often. Q. Okay. Do you stop everybody with those? A. If I’m able to make a traffic stop, yes. Q. Okay. A. And, I mean, but that’s all dependent on the situation, other traffic and, you know, what I have going on that day. Q. And there was no other reason for your stop of the vehicle Kelly Massey was in? A. That’s correct. ¶5 Bateman compared the effect of the tail light covers to placing fingers in front of a flashlight, which “stops some of that light from going through. And, therefore, the visibility is less and the light is diminished.” ¶6 The District Court denied Massey’s motion to suppress. Massey entered into a plea agreement, but reserved his right to appeal the District Court’s ruling. Massey appeals. 4 STANDARD OF REVIEW ¶7 We review a motion to suppress to determine whether a district court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Plouffe, 2014 MT 183, ¶ 18, 375 Mont. 429, 329 P.3d 1255 (citing State v. Dawson, 1999 MT 171, ¶ 13, 295 Mont. 212, 983 P.2d 916); State v. Chilinski, 2014 MT 206, ¶ 16, 376 Mont. 122, 330 P.3d 1169. A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the court has misapprehended the effect of the evidence, or if our review of the record leaves us with a definite and firm conviction that a mistake has been made. State v. Ellis, 2009 MT 192, ¶ 20, 351 Mont. 95, 210 P.3d 144 (citing State v. Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, 171 P.3d 731). DISCUSSION ¶8 Did the District Court err by determining there was particularized suspicion for the traffic stop of Massey’s vehicle? ¶9 The Montana and United States Constitutions prohibit unreasonable searches and seizures, Mont. Const. art. II, § 11; U.S. Const. amend. IV, which includes brief investigatory stops, State v. Ross, 2008 MT 369, ¶ 9, 346 Mont. 460, 197 P.3d 937 (citing State v. Loiselle, 2001 MT 174, ¶ 7, 306 Mont. 166, 30 P.3d 1097); State v. Roy, 2013 MT 51, ¶ 15, 369 Mont. 173, 296 P.3d 1169; City of Missoula v. Moore, 2011 MT 61, ¶ 16, 360 Mont. 22, 251 P.3d 679. Investigatory stops are valid where a law enforcement officer observes a vehicle “in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an 5 offense.” Section 46-5-401(1), MCA. Particularized suspicion requires, in the totality of the circumstances, “(1) objective data from which an officer can make certain inferences, and (2) a resulting particularized suspicion that the occupant of the motor vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.” State v. Flynn, 2011 MT 48, ¶ 7, 359 Mont. 376, 251 P.3d 143; accord Brown v. State, 2009 MT 64, ¶ 20, 349 Mont. 408, 203 P.3d 842. The focus of an inquiry into whether particularized suspicion existed is “entirely on what facts were available to the officer.” State v. Duong, 2015 MT 70, ¶ 14, 378 Mont. 345, 343 P.3d 1218; accord State v. Clawson, 2009 MT 228, ¶ 11, 351 Mont. 354, 212 P.3d 1056; Flynn, ¶ 11. ¶10 Section 61-9-204(5), MCA, provides: A person may not operate a motor vehicle on a highway with taillamps that are covered by a lens or a plastic cover or with a tinted or colored material, substance, system, or component placed on or in front of rear lamps, taillamps, license plate lamps, or rear lamp combinations that obscures the taillamps or diminishes the distance of visibility required by this section. The “distance of visibility” stated in this section requires that tail lamps be “plainly visible from a distance of 1,000 feet to the rear of the vehicle.” Section 61-9-204(1), MCA. Thus, there are two ways the statute may be violated: by covering the tail lights in a manner that (1) obscures the tail lamps, or (2) diminishes the tail lamps such that they are not “plainly visible” at 1,000 feet. ¶11 Massey argues that the statutory term “obscures” means “not clearly seen or easily distinguished” and is synonymous with “conceal,” which Bateman’s testimony did not establish. He argues that because his covers allowed light to shine through, they did not 6 “obscure” the tail lights. He interprets Bateman’s testimony as espousing a “zero tolerance policy” for tail light covers that leads to vehicle stops without regard to actual suspicion on the part of the officer that the statutes are being violated. ¶12 “Obscures” is not defined by the statute but generally means, as acknowledged in part by Massey, “to make dark, dim, or indistinct” or which is “not clearly seen or easily distinguished.” Merriam-Webster’s Collegiate Dictionary 856 (Frederick C. Mish ed., 11th ed. 2012). Bateman testified that he stopped Massey because the tail light covers “were obscuring and diminishing the visibility of the lights to the rear.” He also stated that the covers were “black and covered up the light.” Clearly, these observations establish a suspicion that the tail lights were obscured. The District Court credited Bateman’s testimony, finding that “the tail light covers at issue diminished the visibility of the lights by covering the red portion of the tail lights.” Further, Bateman’s observations, initially made from a point approximately 500 feet behind Massey’s vehicle, also raised a suspicion concerning the second way to violate the statute, by not having tail lights “plainly visible” at 1,000 feet. As such, the District Court correctly concluded that Bateman had particularized suspicion of a violation of § 61-9-204(5), MCA, that justified a traffic stop. ¶13 Stopping all vehicles with tail light covers pursuant to a “zero tolerance policy,” regardless of actual suspicion of a statutory violation, would clearly be improper. Tail light covers are not per se prohibited by § 61-9-204(5), MCA. However, covers must comply with the statute and, here, Bateman’s testimony demonstrated that his stop of 7 Massey was supported by a particularized suspicion that Massey’s covers violated § 61-9-204(5), MCA. ¶14 Affirmed. /S/ JIM RICE We concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA	December 6, 2016
ff53794e-568b-4c2a-aa27-b4eca2d9a97d	State v. E. Fernandez	2016 MT 311N	DA 15-0074	Montana	Montana Supreme Court	DA 15-0074 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 311N STATE OF MONTANA, Plaintiff and Appellee, v. ERNEST FERNANDEZ, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause Nos. DC-05-309, DC-13-430, and DC-13-431 Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Chief Appellate Defender, Haley Connell, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Kirsten Pabst, Missoula County Attorney, Shaun Donovan, Deputy County Attorney, Missoula, Montana Submitted on Briefs: October 19, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 2 Justice James Jeremiah Shea delivered the Opinion for the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Ernest Fernandez appeals the multiple judgments of the Fourth Judicial District, Missoula County, revoking his suspended sentence on a felony incest conviction, and conviction and sentencing for felony failure to register as a sexual offender and felony issuing bad checks. We address whether the District Court erred by rejecting Fernandez’s plea agreement by imposing restitution. We affirm. ¶3 In February 2006, Fernandez was convicted of felony incest and sentenced to twenty years to the Department of Corrections with sixteen years suspended. In August 2013, the State filed a petition to revoke his suspended sentence and charged Fernandez with failing to register as a sexual offender in violation § 46-23-504, MCA, and issuing bad checks in violation of § 45-6-316, MCA. In December 2013, Fernandez entered an open plea of no contest to the issuing bad checks charge. The District Court advised Fernandez, and he acknowledged he understood, that “if you enter a no contest plea here today, that’s effectively a guilty plea and that allows me to sentence you.” Fernandez also signed a written Plea of Guilty and Waiver of Rights in which he expressly acknowledged: “[T]he [District] Court may order me to pay restitution.” In January 2014, Fernandez and the State entered into a global plea agreement, pursuant to 3 § 46-12-211(1)(b), MCA, ((1)(b) plea agreement) that included all three charges, and listed “$00.00” for restitution in the Fines and Fees Description chart. The District Court followed the (1)(b) plea agreement regarding sentencing, but ordered Fernandez to pay $2,731.17 in restitution and a 10% administrative fee as recommended by the pre-sentence investigation (PSI). At sentencing, Fernandez did not object to either the PSI’s recommended restitution or the District Court-ordered restitution. When asked whether he was willing and able to pay restitution, Fernandez replied: “I can get that paid off within the next two years . . . And I would like to pay back restitution . . . .” ¶4 Fernandez argues the District Court rejected the (1)(b) plea agreement by imposing restitution greater than “$00.00” and did not give him the opportunity to withdraw his guilty pleas and admissions, thus erring by not adhering to § 46-12-211(4), MCA, for rejecting a (1)(b) plea agreement. The State argues the District Court did not reject the plea agreement and § 46-12-211(4), MCA, was not triggered, because the plea agreement simply modified Fernandez’s December open plea as to the term of imprisonment the State could recommend. The State also argues Fernandez acquiesced and actively participated in imposing restitution as a condition of suspending his sentence for issuing bad checks, and failed to object to the restitution order despite multiple opportunities during sentencing. The State contends Fernandez waived his right to raise the issue of restitution for the first time on appeal because, not only did he fail to object to the imposition of restitution at sentencing, he unambiguously pronounced he would pay restitution. 4 ¶5 We review a criminal sentence for legality only, determining whether the sentence falls within the statutory parameters. State v. Walker, 2007 MT 205, ¶ 10, 338 Mont. 529, 167 P.3d 879 (citing State v. Kuykendall, 2006 MT 110, ¶ 8, 332 Mont. 180, 136 P.3d 983). ¶6 A (1)(b) plea agreement provides that the prosecutor agrees that a specific sentence is the appropriate disposition of the case. Section 46-12-211(1)(b), MCA. If the court rejects a (1)(b) plea agreement, then § 46-12-211(4), MCA, obligates the district court to: (1) inform the defendant that it is rejecting the plea agreement; (2) advise the defendant that the court is not bound by the plea agreement; (3) afford the defendant the opportunity to withdraw his guilty plea; and (4) advise the defendant that if he persists in the guilty plea, the disposition of the case may be less favorable to him than that contemplated by the plea agreement. State v. Zunick, 2014 MT 239, ¶ 12, 376 Mont. 293, 339 P.3d 1228. We agree with the State that Fernandez never objected to the imposition of restitution as a condition of his issuing bad checks sentence, and therefore waived his right to raise the restitution issue for the first time on appeal. Walker, ¶ 13 (“We generally refuse to review on appeal an issue to which a party failed to object at the trial court). Moreover, Fernandez pronounced his ability and willingness to pay restitution, constituting a waiver of his argument that the imposition of restitution is a rejection of his plea agreement that should trigger § 46-12-211(4), MCA, procedures. Walker, ¶¶ 16-18 (citing State v. Eaton, 2004 MT 283, 323 Mont. 287, 99 P.3d 661, and State v. Micklon, 2003 MT 45, 314 Mont. 291, 65 P.3d 559); State v. Harris, 1999 MT 115, ¶ 32, 294 5 Mont. 397, 983 P.2d 881 (“We will not put a district court in error for an action in which the appealing party acquiesced or actively participated.”). ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. We conclude that Fernandez waived his right to raise the restitution issue for the first time on appeal. We affirm. /S/ JAMES JEREMIAH SHEA We Concur: /S/ MIKE McGRATH /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE	November 29, 2016
6efc4c48-4848-4370-b2ce-71d7d6fc7770	In Re G.O.	2016 MT 298N	DA 16-0011	Montana	Montana Supreme Court	DA 16-0011 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 298N IN RE THE GUARDIANSHIP AND CONSERVATORSHIP OF: G.O., An Incapacitated and Protected Person. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. ADG 12-014 Honorable Gregory G. Pinski, Presiding Judge COUNSEL OF RECORD: For Appellant: John E. Seidlitz, Jr., Seidlitz Law Office, Great Falls, Montana James P. O’Brien, O’Brien Law Office, P.C., Missoula, Montana For Appellee: Kirk D. Evenson, Marra, Evenson & Bell, P.C., Great Falls, Montana Submitted on Briefs: September 14, 2016 Decided: November 15, 2016 Filed: __________________________________________ Clerk 11/15/2016 Case Number: DA 16-0011 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 G.O. died on March 3, 2013. In the last years of his life, G.O. suffered from a rare form of cancer and diminishing mental capacity. On April 19, 2012, G.O.’s wife Lisa filed an emergency petition to appoint a guardian and conservator for G.O. The District Court appointed Lisa as G.O.’s conservator, and on June 27, 2012, granted Lisa’s petition to modify G.O.’s transfer on death (TOD) beneficiary designations for five investment accounts. G.O.’s brothers, Doug and Bruce (Appellants), appeal from the Montana Eighth Judicial District Court’s findings of fact, conclusions of law, and order to pay costs and disburse conservatorship assets. Appellants raise two issues: first, they argue the District Court improperly made Lisa a TOD beneficiary on the five investment accounts; and second, they argue the District Court lacked evidence establishing the first month of conservatorship expenses, but made findings on these expenses anyway. ¶3 The designation of TOD beneficiaries of an investment account does not create a present property interest in the beneficiaries. In re Guardianship & Conservatorship of Anderson, 2009 MT 344, ¶ 23, 353 Mont. 139, 218 P.3d 1220. Because the would-be beneficiaries lack a present property interest in the TOD prior to the death of the account holder, they also lack standing to challenge their removal as beneficiaries. Anderson, 3 ¶ 26. Here, Doug and Bruce were TOD beneficiaries of three of G.O.’s five investment accounts held at Ameriprise Financial Services, Inc. Although the present appeal nominally stems from the District Court’s order to pay costs and disburse conservatorship assets, the alleged error actually occurred, if at all, in the District Court’s June 27, 2012, order modifying the TOD beneficiary designations on all five of G.O.’s investment accounts. Because G.O. was still alive at the time the designation of the TOD beneficiaries was changed, Doug and Bruce do not have standing to challenge the TOD beneficiary modification in the June 2012 order. Anderson, ¶ 26. We therefore decline to reach the merits of their argument. ¶4 Regarding Appellants’ second alleged error, the District Court relied on bank statements from G.O. and Lisa’s joint account to establish the costs from the first month of the conservatorship. Because Lisa was a co-owner of the account, the District Court rightly observed that she owed no fiduciary duties related to the use of the funds. Beyond the funds Lisa took from the joint account, the District Court did not find any additional costs during this first month of conservatorship. We review a district court’s findings of fact for clear error. Roland v. Davis, 2013 MT 148, ¶ 21, 370 Mont. 327, 302 P.3d 91. A finding is clearly erroneous when it is not supported by credible evidence. Roland, ¶ 21. Because the bank statements are credible evidence that support the District Court’s findings, we conclude that the District Court’s findings are not clearly erroneous. ¶5 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear 4 application of applicable standards of review. The District Court’s findings of fact are not clearly erroneous. ¶6 We affirm. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ JAMES JEREMIAH SHEA	November 15, 2016
b3c23d7d-54b9-4af2-b9db-aa85f3f28aa8	Department of Transportation v. Department of Labor	2016 MT 282	DA 16-0068	Montana	Montana Supreme Court	DA 16-0068 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 282 MONTANA DEPARTMENT OF TRANSPORTATION, Petitioner and Appellee, v. MONTANA DEPARTMENT OF LABOR AND INDUSTRY and SHEILA COZZIE, Respondents and Appellants. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDV 14-956 Honorable Jeffrey M. Sherlock, Presiding Judge COUNSEL OF RECORD: For Appellants: Frederick F. Sherwood, Morrison, Sherwood, Wilson & Deola, P.L.L.P., Helena, Montana For Appellee: Curt Drake, Drake Law Firm, PC, Helena, Montana Trevor L. Uffelman, Uffelman Law PC, Helena, Montana Submitted on Briefs: October 5, 2016 Decided: November 9, 2016 Filed: __________________________________________ Clerk 11/09/2016 Case Number: DA 16-0068 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Sheila Cozzie (Cozzie) appeals the order of the First Judicial District Court, Lewis and Clark County, overturning the Board of Personnel Appeals’ (BOPA) Final Order. We affirm the District Court and restate the issues as follows: 1. Did the District Court err by affirming, on evidentiary or due process grounds, the evidentiary ruling made by the Hearing Examiner? 2. Did the District Court err by reversing the BOPA’s just cause decision? FACTUAL AND PROCEDURAL BACKGROUND ¶2 In 2006, the Montana Department of Transportation (MDOT) hired Cozzie to be its Civil Rights Bureau Chief. At that time, Jennifer Jensen, the Human Resource Director, was her supervisor and Jim Lynch was the MDOT’s Director. Over the following years, Cozzie advanced within the MDOT and became the Human Resources Operations Manager. As acknowledged by Cozzie, this position required a high degree of discretion and professionalism. ¶3 In June 2011, a MDOT payroll employee contacted Vivian Hammill, the Governor’s Chief of Staff, to report irregularities within the upper management of the MDOT. The employee reported favoritism in hiring; sick leave abuses; undocumented promotions; improper reclassification of employees’ positions, within the payroll system; and inappropriate coding of holiday and differential pay. ¶4 Taking the allegations seriously, Hammill began an investigation. Based on her findings, Hammill gave Jensen and Lynch, as stated in her testimony, “the Hobson’s 3 choice between resigning or being fired,” in late summer or early fall of 2011. Both of them resigned and Tim Reardon, the MDOT’s chief legal counsel, was appointed department director. During her investigation, Hammill also received reports that Cozzie routinely arrived at work smelling of alcohol; became intoxicated at public functions, while representing the MDOT; exhibited poor management skills, including directing profanity at subordinates, mocking them, and in one instance throwing a book at an employee; and acted unprofessionally by arriving to work late, leaving early, engaging in erratic behavior, and expressing foul moods, particularly in the morning. ¶5 Based on Hammill’s investigation, the MDOT placed Cozzie on administrative leave and hired Jim Kerins to conduct an outside investigation of the allegations against her. At the conclusion of his investigation, Kerins submitted a written report (Report) which included evidence that Cozzie: 1) smelled strongly of alcohol at work; 2) exhibited embarrassing behavior at offsite conferences, while representing the MDOT; 3) used profanity at work; 4) kept and maintained files poorly; and 5) made questionable hiring and promotion decisions. ¶6 The MDOT provided Cozzie with a copy of the Report, and in October 2011, Reardon met with Cozzie to discuss it. Cozzie was given an opportunity to respond to the Report, and she provided a 33-page written response to the allegations. A second meeting was held to provide Cozzie with further opportunity to respond, which she did. After consideration, Reardon reassigned Cozzie to a lower paying, non-managerial position, which did not involve any human resource responsibilities, in August 2012. 4 ¶7 Cozzie filed a grievance over the demotion, which proceeded before the BOPA. A BOPA investigator initially investigated the matter and recommended denial of the grievance. Cozzie disagreed and pursued a contested case proceeding, which was assigned to Hearing Examiner Gregory Hanchett (Hearing Examiner). After discovery was conducted, the MDOT moved for summary judgment, which the Hearing Examiner denied. In January 2014, a two-day hearing was held at which 15 witnesses testified, including several people initially interviewed by Kerins for the Report, and others called by Cozzie who had not been previously interviewed. The people interviewed by Kerins testified to the same essential facts attributed to them in the Report. ¶8 Initially, the Hearing Examiner admitted into evidence only those portions of the Report pertaining to the due process issue. However, after the hearing, he requested supplemental briefing on the admissibility of the Report to determine the merits of the just cause issue. Over Cozzie’s objection, the Hearing Examiner ruled that the entire Report was admissible on the merits. However, the Hearing Examiner’s recommended findings stated that he relied only on the portions of the Report corroborated by live hearing testimony, and that, even if the Report had been excluded, there was sufficient evidence to conclude that the MDOT had just cause to discipline Cozzie by demoting her. The Hearing Examiner entered 47 findings of fact, seven conclusions of law, and recommended that Cozzie’s grievance be denied. ¶9 Cozzie appealed to the full BOPA. Based on Cozzie’s arguments, the BOPA held it was “grossly unfair” and a violation of Cozzie’s due process rights for the Hearing Examiner to have admitted the Report on the merits. The BOPA held that the Report was 5 “not substantial evidence on the question of whether Cozzie merited discipline.” Reasoning that the Report “was the only evidentiary basis” for the Hearing Examiner’s two findings of fact about the Report, the BOPA struck those findings. The BOPA also expressed its disagreement with the Hearing Examiner’s conclusion that the evidence supported just cause for Cozzie’s demotion. The BOPA voted unanimously to grant Cozzie’s grievance and, in November 2014, issued a final decision reinstating Cozzie and ordering that she receive back pay. ¶10 The MDOT appealed to the District Court, which determined that BOPA acted outside the scope of its review, reasoning that “[the] BOPA is not free to conduct a [de novo] review of the [H]earing [E]xaminer’s decision or make an independent judgment regarding a personnel action.” The District Court reversed the BOPA’s decision, holding that the BOPA improperly struck findings of fact and incorrectly modified conclusions of law, and that, “[t]aken as a whole, [the] BOPA’s actions were arbitrary, capricious, and a clearly unwarranted exercise of discretion.” ¶11 Cozzie appeals. STANDARDS OF REVIEW ¶12 Section 2-4-704, MCA, sets forth the standards for judicial review of an administrative decision. A 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 reverse or modify an agency decision if the substantial rights of the appellant have been prejudiced because the agency’s findings, inferences, conclusions, or decisions are in violation of constitutional or statutory provisions; in excess of statutory authority; made upon unlawful procedure; 6 based upon an error of law; clearly erroneous in light of the evidence as a whole; or arbitrary, capricious, or characterized by abuse of discretion. Section 2-4-704(2)(a), MCA. Pursuant to this provision, the standard for reviewing findings of fact is clearly erroneous. Findings of fact not supported by substantial, credible evidence are clearly erroneous. Conclusions of law are reviewed for correctness. Ulrich v. State ex rel. Bd. of Funeral Serv., 1998 MT 196, ¶ 13, 289 Mont. 407, 961 P.2d 126 (citing Erickson v. State ex rel. Bd. of Med. Exam., 282 Mont. 367, 371, 983 P.2d 625, 628 (1997); Steer, Inc. v. Dept. of Rev., 245 Mont. 470, 474, 803 P.2d 601, 603 (1990)). ¶13 When reviewing a hearing examiner’s recommended order, an administrative agency is governed by § 2-4-621(3), MCA, which states, in relevant part: The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the proposal for decision but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the finding were based did not comply with essential requirements of law. When an agency has utilized a hearing examiner rather than personally hearing and observing the evidence, the agency may not reject or modify the examiner’s findings of fact unless they are clearly erroneous. Core-Mark Int’l, Inc. v. Mont. Bd. of Livestock, 2014 MT 197, ¶ 19, 376 Mont. 25, 329 P.3d 1278. The rejection of a hearing examiner’s finding of fact in violation of § 2-4-621(3), MCA, constitutes an abuse of discretion pursuant to § 2-4-704(2)(a)(vi), MCA. Ulrich, ¶ 14 (citing Brander v. Dir. Dept. of Inst., 247 Mont, 302, 308, 806 P.2d 530, 533 (1991)). 7 DISCUSSION ¶14 1. Did the District Court err by affirming, on evidentiary or due process grounds, the evidentiary ruling made by the Hearing Examiner? ¶15 Cozzie argues the Hearing Examiner should not have admitted the Report because it is hearsay and was admitted after she had rested her case, when she had no chance to rebut it. Although acknowledging that the BOPA proceedings are not governed by the Montana Rules of Evidence, Cozzie cites Bean v. Montana Board of Labor Appeals, 1998 MT 222, 290 Mont. 496, 965 P.2d 256, for the proposition that due process is required before a government benefit is taken away. Cozzie argues that admission of the Report was a denial of her constitutional right to due process. ¶16 Bean arose from the denial of an unemployment insurance benefit. Administration of those benefits is governed by Title 39, chapter 51, MCA, and claims are handled by the Unemployment Insurance Appeals Board (UIAB).1 The UIAB, like many other boards and agencies, is “bound by common law and statutory rules of evidence.” Section 2-4-612(2), MCA. In Bean, the Court held that “substantial evidence must consist of admissible evidence” in proceedings before the Board of Labor Appeals, Bean, ¶ 14, and concluded that critical evidence about Bean’s discharge presented only by way of a written report constituted inadmissible hearsay under the governing Montana Rules of Evidence, Bean, ¶ 29. 1 The Unemployment Insurance Appeals Board was formerly known as the Board of Labor Appeals. The name change became effective on July 1, 2015. Section 2-15-1704, MCA, (compiler’s comments). 8 ¶17 As part of its overall responsibilities, the BOPA has been statutorily assigned duties related to employees of the MDOT who are “aggrieved by a serious matter of employment . . . .”2 Section 2-18-1001(1), MCA; see generally §§ 2-18-1001, -1002, -1003, MCA (detailing the grievance procedure). The BOPA’s statutory authorization provides that it is not governed by the Montana Rules of Evidence. Section 2-18-1002(2), MCA, explicitly states, “In a hearing, the [BOPA] is not bound by statutory or common-law rules of evidence.” Consequently, the Hearing Examiner committed no evidentiary error by admitting the Report. ¶18 Cozzie argues the admission of the Report violated her due process rights because, had she known the Report would be admitted in its entirety, then she would have altered her strategy and more aggressively cross-examined the witnesses about their statements in the Report. Cozzie cites the analysis from Bean, which concluded the grievant’s due process rights were violated by the admission of inadmissible hearsay in the proceeding. Bean, ¶¶ 31-41. The BOPA was likewise offended by the process used by the Hearing Examiner to admit the Report for merits purposes after the close of evidence. ¶19 We share the BOPA’s concern over the Hearing Examiner’s decision to admit the Report for broader purposes after Cozzie had rested her case. Such a procedure could well undermine the fairness of the proceeding and require a determination that due process had been violated. However, under the circumstances here, we conclude any error by the Hearing Examiner in admitting the Report was harmless. First, the Hearing 2 The BOPA has similar duties with regard to the Department of Fish, Wildlife, and Parks. Section 87-1-205, MCA. 9 Examiner, although admitting the Report, clarified that “the hearsay evidence of [the] interviewees [in the Report] who did not testify at the hearing . . . cannot and has not been given any weight in reaching any finding of fact or conclusion of law . . . .” Further, in Bean, “all of the evidence . . . introduced to prove Bean’s alleged misconduct was based on inadmissible hearsay reports.” Bean, ¶ 43 (emphasis added). Here, in contrast, testimony about the serious assertions against Cozzie was presented by the witnesses at the hearing, in addition to their statements provided in the Report. Those witnesses were subject to, and underwent, extensive cross-examination by Cozzie’s counsel. While Cozzie argues that the Report attributed certain additional words or statements to the witnesses that were not specifically addressed during cross-examination, it is clear the substance of their testimony was covered at length during the hearing. ¶20 Due process is not a rigid concept; instead, it is “flexible and calls for such procedural protections as the particular situation demands.” Bates v. Neva, 2013 MT 246, ¶ 14, 371 Mont. 466, 308 P.3d 114 (citing State v. West, 2008 MT 338, ¶ 32, 346 Mont. 244, 194 P.3d 683). Despite the admission of the Report, we conclude Cozzie received full due process and that the District Court correctly concluded her due process rights were not violated. ¶21 2. Did the District Court err by reversing the BOPA’s just cause decision? ¶22 Cozzie takes issue with the District Court’s reasoning that “[the] BOPA is not free to conduct a [de novo] review of the [H]earing [E]xaminer’s decision or make an independent judgment regarding a personnel action” to the extent that it implies the BOPA is not free to make a conclusion of law different than the hearing examiner’s. 10 Cozzie also argues that the District Court extended too far the holding of Montana State Board of Personnel Appeals v. Montana Department of Highways, 189 Mont. 185, 615 P.2d 844 (1980), if it is to be “extrapolated to mean that a state agency has essentially unreviewable discretion in matters of discipline.” Cozzie raises valid points, but we do not take the District Court’s statements to go that far. ¶23 The District Court was addressing the BOPA’s statements discussing alternative disciplinary options the MDOT should have explored for Cozzie, that “would have entailed corrective counseling, performance management, or some other notice to Cozzie that her performance was deficient.” While the BOPA may correct a hearing examiner’s incorrect conclusions of law, § 2-4-621(3), MCA, the District Court correctly stated that, pursuant to the statutory standards of review, the BOPA does not have authority to take the record compiled by a hearing examiner and exercise its independent judgment about the proper remedy. See generally Mont. State Bd. of Personnel Appeals, 189 Mont. at 189, 615 P.2d at 846 (“[W]e conclude the [BOPA] made an independent judgment as to which man was more qualified for the job rather than determining whether the [Montana Highway] Department abused its discretion in selecting [the winning job applicant].”). While Cozzie correctly notes that the statement in Montana State Board of Personnel Appeals should not be extrapolated to mean agencies have unreviewable discretion in matters of discipline, the holding there is more properly understood as referring to the deference to be given by the BOPA, as an appellate body, to the hearing examiner under the clearly erroneous standard of review. The BOPA “may reject the [hearing] 11 [e]xaminer’s findings only if they are not based on competent, substantial evidence.” Ulrich, ¶ 14. ¶24 Having resolved the evidentiary and due process issues concerning the hearing conducted by the Hearing Examiner, we conclude there was competent, substantial evidence presented in the hearing, even without the Report, to support the Hearing Examiner’s findings of fact and his conclusions of law (“[T]he [H]earing [Examiner] finds that the testimony of [several witnesses] is credible and that their observations regarding Cozzie’s conduct at work and while representing MDT[,] at MDT sponsored functions[,] provided just cause for demoting Cozzie . . . .”). Here, Cozzie was a senior management employee whose position, as found by the Hearing Examiner, “require[d] a high level of discretion and professionalism.” When the BOPA failed to consider the other evidence in the record before the Hearing Examiner after it rejected the Report, it improperly reversed the Hearing Examiner’s findings of fact and conclusions of law. Its actions were an “unwarranted exercise of discretion.” Section 2-4-704(2)(vi), MCA; Ulrich, ¶ 14. ¶25 Affirmed. /S/ JIM RICE We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA	November 9, 2016
243aec7e-2f22-413b-9924-78b7eebbc56c	Estate of Brock	2016 MT 304N	DA 15-0800	Montana	Montana Supreme Court	DA 15-0800 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 304N IN THE MATTER OF THE ESTATE OF WILLIAM A. BROCK, Deceased. ------------------------------------------- CHRISTINE TREXLER, Appellant, v. JESSICA A. VERNON, Appellee and Cross-Appellant. APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DP 14-16 Honorable Brenda Gilbert, Presiding Judge COUNSEL OF RECORD: For Appellant: Christine Trexler, self-represented, Wilmington, Delaware For Appellee: Ralph W. Steele, Ralph W. Steele, P.C., Bozeman, Montana Submitted on Briefs: November 16, 2016 Decided: November 22, 2016 Filed: __________________________________________ Clerk 11/22/2016 Case Number: DA 15-0800 2 Justice Jim Rice delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 In this appeal, made pursuant to M. R. App. P. 6(4), from an order entered in an estate matter, Appellant Christine Trexler challenges that portion of the order entered by the District Court on November 24, 2015, which removed her as a Co-Personal Representative of the Estate of William A. Brock, and ordered Co-Personal Representative Jessica A. Vernon, Appellee, to continue as the sole Personal Representative of the Estate. Vernon cross-appeals the District Court’s determination not to grant her attorney fees in this matter. Trexler, who resides in Maryland, and Vernon, who resides in Delaware, are sisters, and William A. Brock was their father. ¶3 Mr. Brock passed away on March 25, 2014. He owned a residence in Gardiner, Montana, where he was domiciled, which is the only remaining asset of his estate of substantial value. When their initial efforts found no will or testamentary instrument of Mr. Brock, Vernon and Trexler petitioned and were appointed Co-Personal Representatives in intestacy for their father’s estate on April 2, 2014. Later, a will of Mr. Brock’s was discovered that named the sisters as Co-Personal Representatives of his estate. The will was filed with the court a year later, on April 21, 2015. It does not 3 appear that a petition for probate of the will has been filed, as the matter quickly devolved into litigation over who should continue as personal representative, with Vernon seeking removal of both herself and Trexler in favor of appointment of Mr. Brock’s brother, an attorney, citing a breakdown in communications between the sisters and accusations about the handling of the will. Trexler objected to this petition, and a hearing was conducted on April 21, 2015. During the hearing, the parties decided to enter a stipulation whereby the sisters would continue to serve as Co-Personal Representatives “for purposes of completing the informal probate process,” presumably meaning informal probate of Mr. Brock’s will. ¶4 However, processing of estate matters did not improve after the settlement of the administrative dispute by way of the stipulation. A two month delay was occasioned by continued discussions and the effort to secure Trexler’s signature on the stipulation, which was eventually filed with the court on June 29, 2015. Other disputes and delays occurred, some related to problems associated with preparing the property for sale, leading to Vernon’s petition for removal of Trexler in September 2015, which was heard by the District Court on November 4, 2015. ¶5 The District Court entered a written order on November 24, 2015, but entered most of its findings of fact verbally at the conclusion of the hearing, which it incorporated in its written order. Stating that “it appears to the Court that the problems with communication have been overwhelmingly on the part of Ms. Trexler failing to respond, failing to sign documents, or respond with her objections to them,” the Court concluded 4 that termination of Trexler’s appointment as Co-Personal Representative was in the best interests of the Estate, and that cause for removal under § 72-3-526, MCA, had been established. The Court also granted the request for enforcement of the stipulation and that the listing and sale of the subject property would “proceed forward” with Vernon as sole Personal Representative. ¶6 Trexler dissects the District Court’s findings to offer her explanation for delays, which she argues were largely out of her control, and discusses at length the problems associated with properly preparing the property for sale. Trexler contends that cause for removal under § 72-3-526(1), MCA, and In re Estate of Hannum, 2012 MT 171, 366 Mont. 1, 285 P.3d 463, was not demonstrated because there were legitimate reasons for any delays and that her efforts have not harmed the Estate or breached a fiduciary duty. ¶7 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. The District Court’s findings of fact regarding Trexler’s actions are supported by substantial evidence. The case presents a question controlled by settled law or by the clear application of applicable standards of review. There was good cause for removal, and it was in the best interest of the Estate, as the ineffectual administration was harmful to the Estate. ¶8 Regarding Vernon’s cross appeal, the District Court reserved ruling on the issue of attorney fees “until a later time or upon conclusion of the Estate.” Thus, we decline to review the fee matter at this time, and the issue is preserved for further review by the District Court. 5 ¶9 An order pending appeal was entered by the District Court pursuant to M. R. Civ. P. 62.1 on November 14, 2016, regarding approval of the sale of the property now scheduled for December 8, 2016. Because we are disposing of the appeal by this opinion, we need not remand the matter solely for that purpose, but return the entire matter to the District Court. ¶10 Affirmed and remanded to the District Court for further proceedings. /S/ JIM RICE We concur: /S/ LAURIE McKINNON /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JAMES JEREMIAH SHEA	November 22, 2016
245dc0c2-8128-411f-808d-6cf6248bbd4a	McCrorie v. Franz	2016 MT 313N	DA 16-0046	Montana	Montana Supreme Court	DA 16-0046 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 313N BEN McCRORIE and MYRA McCRORIE, Plaintiffs and Appellants, v. ARLON FRANZ, Defendant and Appellee. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-14-1175D Honorable David M. Ortley, Presiding Judge COUNSEL OF RECORD: For Appellants: Jennifer J. McDonald, Johnson, Berg & Saxby, PLLP, Kalispell, Montana For Appellee: Randall A. Snyder, Erika Johnson, Snyder Law Office, P.C., Bigfork, Montana Submitted on Briefs: September 28, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 16-0046 2 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Plaintiffs Ben and Myra McCrorie filed suit to gain an easement for the use of a road crossing land owned by the Defendant, Arlon Franz. The District Court conducted a bench trial in December 2015. After the conclusion of the McCrorie’s case-in-chief, Franz moved for judgment as a matter of law. The District Court granted Franz’s motion, concluding that the McCrories failed to prove by clear and convincing evidence that their use of Franz’s land was adverse, open, and notorious. The McCrories argue judgment as a matter of law was inappropriate because a reasonable person could have found these elements of a prescriptive easement satisfied. Alternatively, the McCrories argue that they satisfied each element of prescriptive easement before the trial when they filed their motion for summary judgment, which the District Court denied. Because we conclude the District Court did not err in awarding judgment as a matter of law after the McCrories had the opportunity to present their case, we need not address the McCrories’ argument for pretrial summary judgment. ¶3 Both parties cite Johnson v. Costco Wholesale, 2007 MT 43, 336 Mont. 105, 152 P.3d 727, and its progeny for the standard of review in appeals from a district court’s grant of judgment as a matter of law. In Johnson, we reviewed de novo the district 3 court’s order granting judgment as a matter of law in a jury trial. Johnson, ¶ 18. Here, the McCrories appeal from judgment as a matter of law in a bench trial following the close of their case in chief. In a civil bench trial, we review a district court’s findings of fact to determine whether they are supported by substantial credible evidence. Kurtzenacker v. Davis Surveying, Inc., 2012 MT 105, ¶ 14, 365 Mont. 71, 278 P.3d 1002. In this context, we view the evidence in the light most favorable to the prevailing party. Kurtzenacker, ¶ 14. We also review a district court’s conclusions of law for correctness. Kurtzenacker, ¶ 14. ¶4 A prescriptive easement arises by operation of law when the claimant establishes that their use of another’s land was open, notorious, exclusive, adverse, continuous and uninterrupted for the five year statutory period. Heller v. Gremaux, 2002 MT 199, ¶ 12, 311 Mont. 178, 53 P.3d 1259; § 70-19-404, MCA. The claimant must prove each of these elements with clear and convincing evidence. Heller, ¶ 15. Open and notorious use requires “a distinct and positive assertion of a right hostile to the rights of the owner” that is “brought to the attention of the owner.” Combs-Demaio Living Trust v. Kilby Butte Colony, Inc., 2005 MT 71, ¶ 14, 326 Mont. 334, 109 P.3d 252. The use “must give the landowner actual knowledge of the claimed right, or be of such a character as to raise a presumption of notice.” Heller, ¶ 13. ¶5 In 2006, the McCrories received a parcel of unimproved timberland near West Glacier as a gift from Martha Sloan and Jane Bolles, Myra’s great aunt and grandmother. The McCrories’ land was bordered to the south and east by a larger parcel owned by the Holder Trust. In 2007, Sloan and Bolles sold a parcel of land to the southwest of the 4 McCrories’ land to Richard McAtee, Myra’s cousin. Franz, who lives in Sidney, Montana, purchased the Holder Trust property in 2014. At some point during the current litigation, Franz also purchased McAtee’s parcel, and as a result, the McCrories’ property is now surrounded by Franz’s property to the west, south, and east. Both the McCrories’ and Franz’s land is bordered to the north by a railroad corridor owned by the Burlington Northern Santa Fe Railway (BNSF). BNSF maintains a private road that runs parallel to the railroad along the southern edge of the corridor, known as Grizzly Spur Road. The only public road involved in this case, Belton Stage Road, crosses the southeast corner of Franz’s property and connects to Grizzly Spur Road just beyond the northeast boundary of Franz’s property. ¶6 The disputed road is a shortcut connecting Belton Stage Road to Grizzly Spur Road. The McCrories claim they and their predecessors in interest have always used the disputed road to access their property via Grizzly Spur Road, although they admit they have no legal right to use Grizzly Spur Road. Between 2008 and 2012, the McCrories built a house on their property, which was previously unimproved timberland. The McCrories used the disputed road to access their property during construction and maintained the road by clearing brush, laying gravel, and plowing snow during the winter. ¶7 Both Franz and the Holder Trust were absentee landowners. The McCrories and Bolles testified that they had never communicated with a representative of the Holder Trust. Since Franz acquired the property in 2014, the McCrories have likewise never communicated with him. Given the absentee nature of Franz’s ownership, the District 5 Court concluded that the McCrories’ maintenance of the road did not put Franz on notice of their use. We agree. Indeed, the McCrories presented no evidence that Franz had actual knowledge of their use of the disputed road. ¶8 Instead, the McCrories argue that McAtee was Franz’s agent, and McAtee’s knowledge of the McCrories’ use of the disputed road should be imputed to Franz. To support their claim, Ben McCrorie testified that he believed McAtee had a business relationship with Franz and Myra McCrorie testified that she saw McAtee harvesting timber from Franz’s land. The McCrories also brought in John Glader, another neighbor of Franz, who testified under cross-examination that Franz told him that McAtee was not Franz’s representative. The McCrories did not put McAtee or Franz on the stand to establish the extent of their relationship. Beyond the McCrories’ own speculation, they have not directed us to anything in the record supporting their claim of an agency relationship that would impute knowledge of their use of the disputed road to Franz. Viewing this testimony in the light most favorable to the prevailing party, Franz, we cannot conclude that the District Court erred in finding that the McCrories did not clearly and convincingly prove their use of the disputed road was open and notorious. Because we conclude that the District Court did not err with regard to the open and notorious element of prescriptive easement, the McCrories’ claim must fail, and we need not reach the adversity element of their claim. ¶9 The McCrories also contend they made a prima facie showing of an easement by implication. An easement by implication requires unity of ownership. Wolf v. Owens, 2007 MT 302, ¶ 16, 340 Mont. 74, 172 P.3d 124. At trial, Myra testified that she thought 6 the Pete Postle homestead once encompassed both the McCrories’ land and Franz’s land, but she could not be certain. Further, the McCrories did not identify through the chain of title for either parcel when the two tracts were actually split. Because the McCrories did not establish unity of ownership, the District Court did not err in granting judgment as a matter of law in Franz’s favor on the question of implied easement. ¶10 Finally, the McCrories argue they made a prima facie showing of an easement by estoppel. To satisfy the six elements of easement by estoppel, the McCrories would need to show that Franz misrepresented or concealed material facts. See Kelly v. Wallace, 1998 MT 307, ¶ 40, 292 Mont. 129, 972 P.2d 1117. The McCrories have made no such showing, so we cannot conclude the District Court erred in granting judgment for Franz on the question of easement by estoppel. ¶11 Because we conclude the District Court did not err in granting judgment to Franz on any of the McCrories’ easement theories, the McCrories are not entitled to punitive damages for the destruction of the easement. ¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. Having reviewed the briefs and the record on appeal, we conclude that the McCrories have not met their burden of persuasion. We affirm. /S/ PATRICIA COTTER 7 We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ MICHAEL E WHEAT	November 29, 2016
de8523de-1c42-4ba8-8ad4-e9804ec93cec	In re M.V.R.	2016 MT 309	DA 16-0113	Montana	Montana Supreme Court	DA 16-0113 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 309 IN THE MATTER OF: M.V.R., A Youth in Need of Care. APPEAL FROM: District Court of the Eighth Judicial District, In and For the County of Cascade, Cause No. BDN 14-240 Honorable Thomas M. McKittrick, Presiding Judge COUNSEL OF RECORD: For Appellant: Meri Althauser, Montana Legal Justice, PLLC, Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana John Parker, Cascade County Attorney, Valerie Winfield, Deputy Cascade County Attorney, Great Falls, Montana Submitted on Briefs: October 5, 2016 Decided: November 29, 2016 Filed: __________________________________________ Clerk 11/29/2016 Case Number: DA 16-0113 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 M.V.R's mother, K.S. (Mother), appeals from an order entered by the Eighth Judicial District Court, Cascade County, terminating her parental rights. We affirm. ¶2 We restate the issues on appeal as follows: Issue One: Did the District Court abuse its discretion when it terminated Mother’s parental rights without making specific findings that the Department of Health and Human Services engaged in reasonable efforts to reunite the family pursuant to § 41-3-423(1), MCA? Issue Two: Did the District Court abuse its discretion when it terminated Mother’s parental rights based on a failed treatment plan pursuant to § 41-3-609(1)(f), MCA? Issue Three: Did the District Court deny Mother due process by failing to reappoint a public defender? FACTUAL AND PROCEDURAL BACKGROUND ¶3 In May 2014, the Department of Health and Human Services (DPHHS) received reports of concern for Mother’s three children’s welfare based on alleged drug use in the family home. DPHHS, through Child Protective Services social worker Pamela Meyerson (Meyerson), attempted to make contact with the family without success. In October 2014, DPHHS received reports from two doctors’ offices stating Mother had brought her children in, concerned they were infested with bugs. No bugs or infestation was present. The doctor’s offices believed Mother may have been hallucinating. On October 14, 2014, Meyerson went to the family home in Great Falls, Montana, and spoke to Mother about the children’s bug infestations. Meyerson observed no evidence of bugs or infestation on Mother or children. Mother refused to submit to a drug test at that time. 3 ¶4 Three days later, when Mother removed the children from public school, Meyerson again went to the home. One child spoke with Meyerson but stated she could not get an adult to wake up. Finally, Mother’s boyfriend came to the door and told Meyerson Mother was not home; eventually Mother came out and spoke with Meyerson. Meyerson asked Mother why the children were not in school and if she would submit to a drug test or have the children’s hair tested. Mother refused, went back in the house, brought all three children outside to Meyerson and stated “this is what happens when you talk to [DPHHS], now they are going to take you away . . . go ahead, you want to take them, so take them.” Meyerson did not take the children. ¶5 On November 5, 2014, Meyerson went to the family’s home. The children were not attending school or registered for the home schooling program, Mother refused to submit to a requested drug test, and she denied Meyerson access to the children. The children were removed from Mother’s care. On November 12, 2014, the Cascade County Attorney filed a Petition for Emergency Protective Services (EPS), adjudication as youths in need of care, and temporary legal custody. The Department alleged Mother physically neglected the children through her bizarre behavior and suspected methamphetamine use. The District Court granted the State’s petition for emergency protective services and appointed Mother a public defender. ¶6 DPHHS referred Mother to Corin Fisch, LCPC-LAC (Fisch) for a chemical dependency evaluation which took place on November 25, 2014. Fisch diagnosed Mother as amphetamine dependent. Mother admitted to using methamphetamine but did 4 not believe she had an addiction problem or that she needed treatment. Intensive outpatient treatment was recommended given Mother’s lack of “treatment readiness.” ¶7 On January 9, 2015, at a show cause hearing, Mother fired her public defender and hired private counsel. Mother’s new counsel entered a notice of appearance on January 8, 2015, and appeared on her behalf. Mother stipulated to temporary legal custody for six months and that her children were youths in need of care. The District Court approved the treatment plan DPHHS, through Meyerson, had proposed. Although she did not sign the treatment plan, the transcript shows Mother was “willing” and “already actively” working on the plan. Nevertheless, the District Court allowed Mother’s private counsel ten days to object to the treatment program. Counsel never objected. Temporary legal custody was ordered on January 15, 2015. ¶8 The treatment plan was designed to “preserve the parent child relationship,” “assist Mother in acquiring necessary skills to provide for her children’s safety, permanency, and well-being,” as well as “assess the family and instill long term change and lasting stability.” The plan authorized DPHHS to gather information regarding the children’s ability to return home and devise a permanent placement plan if return was not feasible. Specifically, the treatment plan gave Mother six months to stop using illicit drugs and alcohol, maintain sobriety with scheduled and random urinalysis testing, complete mental health and chemical dependency evaluation and counseling, maintain contact with her children, attend parenting classes and submit to home visits, create and maintain a safe and secure home environment including stable employment, and not allow other people to reside in the family’s home. 5 ¶9 Mother requested referral to an inpatient treatment center in January 2015. Fisch referred her to Montana Chemical Dependency Center (MCDC). Mother missed her first two intake appointments with Dr. Robert Page (Dr. Page), but did meet with him on January 22, 2015, for psychological, mental health, and parenting evaluations. Mother admitted that she had been using methamphetamines since mid-December. Dr. Page believed Mother’s substance abuse “created a pattern of neglect of the children,” and that Mother was aware she needed inpatient treatment but was “reluctant to actually enroll.” Dr. Page determined Mother had co-occurring problems of chemical dependency and mental health. However, Mother needed inpatient chemical dependency treatment first. ¶10 On January 30, 2015, Mother was arrested in Billings for possession of methamphetamine. She entered MCDC on February 9, 2015, discharging herself only a few days shy of the standard 28-day term, on March 2, 2015. Mother began her outpatient treatment with Fisch through individual and group chemical dependency counseling sessions. Mother also began seeing a mental health counselor, Roberta Powell (Powell). ¶11 In the meantime, the biological father of two of Mother’s children filed a petition for full custody. At that hearing on March 20, 2015, Mother admitted her addiction had an “atrocious” effect on the children, but that she was 39 days sober and would do anything to get her children back. The District Court lauded her sobriety but based on the pending criminal charges and the “long road” ahead of Mother, the two children were placed with their father. This appeal is limited to Mother’s other child, M.V.R. 6 ¶12 Mother appeared on April 3, 2015, for a status hearing represented by her private counsel. Mother was attending most of her chemical dependency outpatient group sessions. Fisch and the counselors were working with Mother trying different groups and approaches. However, Mother’s progress began to decline in May 2015. ¶13 Mother’s lawyer was granted a motion to withdraw from representation on June 15, 2015. The District Court ordered Mother to find new counsel within 30 days or represent herself. ¶14 Mother attended few chemical dependency outpatient group sessions; June 23, 2015, was the last session she attended. Mother had missed two weeks of her required urinalysis testing and admitted she was using methamphetamine again. She was dismissed from her chemical dependency outpatient treatment program for allegedly attempting to sell methamphetamine to other patients. ¶15 On July 7, 2015, DPHHS petitioned to terminate Mother’s parental rights to M.V.R. based on her failure to complete the court approved treatment plan. At the scheduled termination of parental rights hearing on August 6, Mother attended but was unrepresented. The Court and DPHHS agreed Mother should have counsel, and the hearing was continued for four weeks for her to obtain private counsel. At the August 18 hearing, Mother was still without counsel. DPHHS again requested the hearing be continued while Mother obtained legal counsel. The District Court ordered a new hearing and Mother requested a public defender. ¶16 Julie Bass (Bass) was assigned as Mother’s new social worker on August 6, 2015. Bass arranged for Mother to take a urinalysis test and then meet with M.V.R. Bass 7 referred Mother to Stewart McCracken (McCracken), for a chemical dependency evaluation. ¶17 Days before the termination of parental rights hearing, on September 21, 2015, DPHHS requested that temporary legal custody be extended based on Mother’s reengagement with services. The Office of Public Defender had appointed Jane Berger (Berger) to represent Mother and she did so at the September 24, 2015 extension of temporary legal custody hearing. DPHHS and the District Court agreed that while Mother’s progress had taken steps backward, she was reengaged in services. Temporary legal custody was extended so that Mother could try to make “dramatic improvement.” ¶18 Mother participated in chemical dependency outpatient therapy with McCracken but her attendance was sporadic and she was not in compliance with her urinalysis testing. Mother had stopped seeing Powell for mental health counseling and resisted a new mental health counselor. McCracken and Bass encouraged her to attend inpatient treatment; however, Mother was reluctant. Bass helped her find temporary housing for her pets and personally took her for urinalysis testing. ¶19 Mother again entered MCDC on November 18, 2015. Less than one week later, Mother called Bass. Bass and her supervisor explained to Mother that she needed to stay in treatment and establish sobriety because DPHHS would not seek another temporary legal custody extension. Mother agreed to stay but left after less than one week at MCDC. Mother’s treatment progress was insignificant. On December 12, 2015, Mother reengaged visits with M.V.R. and Bass referred Mother to a third chemical dependency treatment program, where she began intensive outpatient treatment. 8 ¶20 On December 17, 2015, Mother and her public defender Berger appeared for the scheduled permanency plan hearing. DPHHS renewed its termination of parental rights petition and a hearing was set for January 14, 2016. Mother tested positive for methamphetamine on January 5, 2016. Bass testified that Mother’s car had been repossessed and her water and heat had been shut off for non-payment. Mother never found a job and could not verify any income. ¶21 On January 14, 2016, the District Court held the final parental rights termination hearing. Mother expressed interest in relinquishing her parental rights but refused a drug test; the State objected, noting that if Mother was under the influence the relinquishment may not be valid. Mother sought to terminate her current public defender during the hearing and asked to stay the hearing until she could hire a new attorney. Mother claimed she had not been in contact with her public defender at any point. The District Court denied the request as a dilatory tactic, observing she had many opportunities to retain and consult with her public defender or an attorney of her choice. The District Court granted DPHHS’s petition, terminating Mother’s right to parent M.V.R. Mother appeals. STANDARD OF REVIEW ¶22 “This Court reviews a district court’s decision to terminate parental rights for an abuse of discretion.” In re T.S., 2013 MT 274, ¶ 21, 372 Mont. 79, 310 P.3d 538. A district court’s decision to terminate a parent’s rights will not be disturbed on appeal unless “there is a mistake of law or a finding of fact not supported by substantial evidence 9 that would amount to a clear abuse of discretion.” In re A.S., 2016 MT 156, ¶ 11, 384 Mont. 41, 373 P.3d 848. ¶23 “We review a district court’s findings of fact to determine whether they are clearly erroneous and its conclusions of law to determine whether they are correct.” In re A.S., ¶ 11 (2016); In re T.S., ¶ 21. “A factual finding is considered clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence underlying the finding, or if a review of the record leaves this Court with a definite and firm conviction that a mistake has been made.” In re D.F., 2007 MT 147, ¶ 21, 337 Mont. 461, 161 P.3d 825; In re D.T.H., 2001 MT 138, ¶ 7, 305 Mont. 502, 29 P.3d 1003. An appellant bears the burden of establishing the district court’s findings are clearly erroneous. In re D.F., ¶ 22. ¶24 “Whether a person has been denied his or her right to due process is a question of constitutional law, for which this Court’s review is plenary.” In re A.S., 2004 MT 62, ¶ 9, 320 Mont. 268, 87 P.3d 408. DISCUSSION ¶25 Issue One: Did the District Court abuse its discretion when it terminated Mother’s parental rights without making specific findings that the Department of Health and Human Services engaged in reasonable efforts to reunite the family pursuant to § 41-3-423(1), MCA? ¶26 In Montana DPHHS must make reasonable efforts to prevent removal of a child and reunite a family. Section 41-3-423(1), MCA. The statute does not define “reasonable efforts.” In re J.H., 2016 MT 35, ¶ 17, 382 Mont. 214, 367 P.3d 339. However, the statute gives examples of reasonable efforts, which include developing a 10 voluntary protective services agreement, individual written case plans specifying state reunification efforts, and periodic review. Section 41-3-423(1), MCA. The court must evaluate each case individually and that analysis is highly fact-dependent. In re J.H., ¶ 17. DPHHS is not required to make “herculean efforts.” In re J.H., ¶ 17. ¶27 Montana policy is to protect children whose health and welfare are or may be threatened by those responsible for their care; however, this protection must be provided in a manner that preserves family unity, if possible. Section 41-3-101(1)(a), (b), MCA; In re C.J., 2010 MT 179, ¶ 23, 357 Mont. 219, 237 P.3d 1282. When terminating parental rights, the District Court’s chief concern is the best interests of the child. In re T.S., ¶ 30 (citing In re Custody & Parental Rights of D.A., 2008 MT 247, ¶ 21, 344 Mont. 513, 189 P.3d 631 (quoting In re E.K., 2001 MT 279, ¶ 33, 307 Mont. 328, 37 P.3d 690)). “Children need not be left to twist in the wind when their parents fail to give priority to their stability and permanency.” In re T.S., ¶ 30. ¶28 Mother argues the District Court failed to address the reasonable efforts made by DPHHS, thus violating her due process rights. Mother argues that DPHHS did not engage in reasonable efforts to reunite the family or to ensure she would complete the treatment plan approved by the District Court. The record clearly shows that DPHHS made reasonable efforts to reunite the family. ¶29 DPHHS created and Mother did not challenge the treatment plan. The plan was designed to preserve the parent child relationship, assist Mother in acquiring necessary skills to provide for her children’s safety, permanency, and well-being, and inform DPHHS regarding the children’s ability to return home. The plan required Mother to 11 stop using illicit drugs and alcohol, maintain sobriety, complete mental health and chemical dependency evaluations and counseling, maintain contact with her children, attend parenting classes and submit to home visits, create and maintain a safe and secure home environment including stable employment, and not allow other people to reside in the family’s home. ¶30 DPHHS provided Mother with many resources including outpatient narcotic treatment programs, group and individual counseling, parenting support, two case workers, two stints in MCDC, and weekly visits with M.V.R. Further, DPHHS continually accepted Mother back after she relapsed. DPHHS twice moved for an extension of M.V.R.’s temporary legal custody in order to help Mother complete her treatment plan. DPHHS gave Mother fourteen months to get clean and comply with the treatment plan before her parental rights to M.V.R. were terminated. ¶31 Section 41-3-423(1), MCA, is satisfied when the district court record shows reasonable efforts were made to reunite the family. Here, the record clearly shows reasonable efforts were made to reunite the family. ¶32 Issue Two: Did the District Court abuse its discretion when it terminated Mother’s parental rights based on a failed treatment plan pursuant to § 41-3-609(1)(f). MCA? ¶33 When a child has been adjudicated as a youth in need of care, the district court may terminate the parent-child relationship if, by clear and convincing evidence, it finds both of the following exist: (i) a court approved appropriate treatment plan has not been complied with by the parents or has not been successful; and (ii) the conduct or condition 12 of the parents rendering them unfit to care for the child is unlikely to change within a reasonable time. Section 41-3-609(1)(f) (i), (ii), MCA; In re D.F., ¶ 23. ¶34 Mother argues the District Court’s determination that the condition which rendered her unfit was unlikely to change within a reasonable time was not supported by substantial evidence, thus violating the statutory requirements for termination of parental rights and her due process entitlement to fundamentally fair procedures; that the six-month deadline for her treatment plan was unreasonable and given more time and more resources she could have been successful; that the District Court failed to make findings that DPHHS engaged in reasonable efforts; and that DPHHS did not engage in reasonable efforts to ensure she would complete the treatment plan approved by the District Court. ¶35 DPHHS must prove by clear and convincing evidence each statutory criteria for termination of parental rights. Section 41-3-422(5)(a)(iv), MCA; In re K.L., 2014 MT 28, ¶ 14, 373 Mont. 421, 318 P.3d 691. This Court defines clear and convincing evidence in a parental rights case to mean “a preponderance of the evidence must be definite or that a particular issue must be established by a clear preponderance of proof.” In re T.D.H., 2015 MT 244, ¶ 28, 380 Mont. 401, 356 P.3d 457. ¶36 When determining “whether the conduct or condition of the parent is unlikely to change” the court shall enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect, or that the conduct or the condition of the parents renders them unfit, unable, or unwilling to give the child adequate parental care. Section 41-3-609(2), MCA. 13 ¶37 The court shall consider, but is not limited to the following: (a) Emotional illness, mental illness, or mental deficiency of the parent of a duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time; (b) a history of violent behavior by the parent; (c) excessive use of intoxicating liquor or of a narcotic or dangerous drug that affects the parent’s ability to care and provide for the child; and (d) present judicially ordered long-term confinement of the parent. Section 41-3-609(2)(a)-(d), MCA; In re D.F., ¶ 23. Additionally, “the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child,” and the court may “assess the parent’s past and present conduct.” Section 41-3-609(3), MCA; In re T.D.H., ¶ 33. ¶38 Here the District Court adjudicated M.V.R. as a youth in need of care. The District Court approved a reasonable and appropriate treatment plan for Mother. The record shows, and the District Court’s conclusions of law found, Mother failed to comply with or complete the treatment plan. Further, the District Court found the conduct or condition rendering Mother unfit, her abuse of methamphetamine, was unlikely to change within a reasonable time. Section 41-3-609(1)(f)(ii), MCA. ¶39 It is clear from the record that Mother was unable, or unwilling, to abstain from methamphetamines. Neither the record nor her previous behavior supports her assertion that she just needed more time or that alternate treatment was not provided. Shortly after M.V.R. was removed from her care, Mother was arrested for possession of dangerous drugs. Mother failed to provide consistently clean urine samples until more than one year after M.V.R. was removed. Mother failed to complete two twenty-eight-day inpatient 14 treatment programs at MCDC, one shortly after M.V.R. was removed and one shortly before her parental rights to M.V.R. were terminated. The outpatient chemical dependency treatment program terminated Mother’s participation after she was found attempting to sell methamphetamine to the other patients. ¶40 The District Court found “by clear and convincing evidence, that continuation of the parent-child legal relationship between the Youth and the Birth Mother will result in an ongoing risk of abuse and/or neglect to the Youth.” Further, the District Court found “the best interests of the Youth’s physical, mental, and emotional condition will be served by termination of the parent-child legal relationship.” ¶41 Section 41-3-609(1)(f), MCA, does not require a specific finding by the District Court that DPHHS engaged in reasonable efforts before terminating a parent child relationship. Section 41-3-609(1)(f), MCA; see In re D.B., 2007 MT 246, ¶¶ 25, 26, 339 Mont. 240, 168 P.3d 691. ¶42 The decision to terminate Mother’s parental rights to M.V.R. was supported by substantial evidence. The District Court did not err in its findings of fact. ¶43 Issue Three: Did the District Court deny Mother due process by failing to reappoint a public defender? ¶44 Montana's jurisprudence establishes that a “natural parent’s right to the care and custody of his or her child is a fundamental liberty interest which must be protected by fundamentally fair procedures.” In re A.S., ¶ 12 (2004) (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982)); In re A.C., 2001 MT 126, ¶ 20, 305 Mont. 404, 27 P.3d 960. Due process requires a parent not be placed at an “unfair disadvantage” during 15 State proceedings to terminate the parent’s liberty interest in the care and custody of a child. In re A.S.A, 258 Mont. 194, 198, 852 P.2d 127, 129 (1993). “Fundamental fairness requires that a parent be represented by counsel at proceedings to terminate parental rights.” In re A.S., ¶ 12 (2004). ¶45 In 2004, when we decided In re A.S., the right to counsel had not attached to all stages of termination proceedings. In re A.S. (2004). “In 2005, the Montana Legislature granted indigent parents a statutory right to appointed counsel in all abuse and neglect proceedings involving any petition filed pursuant to § 41-3-422, MCA.” In re J.J.L., 2010 MT 4, ¶ 16, 355 Mont. 23, 223 P.3d 921. Specifically, § 41-3-425(1), MCA, gives any party involved in a petition under § 41-3-422, MCA, the right to counsel in all proceedings. Section 41-3-425(1), MCA. The court is required to “immediately appoint the office of state public defender to assign counsel for any indigent parent” so long as that parent qualifies pursuant to § 47-1-111(2), MCA. Section 41-3-425(2)(a), MCA. ¶46 Mother argues that the District Court violated her due process right to counsel when it failed to immediately appoint a public defender for her when her private counsel withdrew and she was without counsel from June 15 to September 21, 2015. ¶47 Mother was assigned a public defender in December 2014 and had terminated the public defender in January 2015, hiring her own private counsel. In June 2015, Mother’s private counsel was granted leave by the District Court to withdraw from representing Mother. In accordance with Rule 10(b) of Montana Uniform District Court Rules, Mother was informed she was entitled to appoint other counsel or represent herself. Mother made no indication she desired a public defender at that time. 16 ¶48 At the hearing to terminate Mother’s parental rights on August 6, 2015, Mother was without counsel. The transcript shows the State immediately acknowledged that Mother was without counsel, agreed she should have counsel present, and moved to have a public defender appointed. Mother spoke with the regional deputy public defender outside of the courtroom. He encouraged Mother to immediately come to his office after the hearing so she could obtain counsel. Mother failed to go to the public defender’s office. ¶49 At the next hearing, on August 18, 2015, Mother had yet to go to the public defender’s office or obtain private counsel. The hearing was continued for four weeks and a public defender, Berger, was appointed for Mother. At the September 24, 2015 hearing Mother failed to appear. Berger informed the District Court that Mother had never contacted her or the public defender’s office and the phone number on file for Mother was out of date; no contact between Berger and Mother had occurred. The hearing was again continued until December 17, 2015. Berger represented Mother throughout the termination proceeding. ¶50 Mother was aware of what was required to obtain a public defender; she had a public defender during these proceeding and in other previous and contemporaneous proceedings. Mother was not denied counsel. Mother voluntarily terminated her public defender and hired private counsel. When private counsel withdrew, the District Court informed Mother of her duty to find new counsel. Mother never requested a new public defender and the District Court reasonably concluded that she would hire new counsel. While it does not take “particular words” to request counsel, some indication must be 17 given to the court that respondent wishes for appointed counsel based on indigence. J.M. v. R.H. (In re J.W.M.), 2015 MT 231, ¶ 25, 380 Mont. 282, 354 P.3d 626. ¶51 Due process and § 41-3-425, MCA, give parents at risk of having their parental rights terminated the right to counsel and the right to appointed counsel if indigent, at all termination proceedings. The District Court properly appointed a public defender for Mother immediately upon initiation of these proceedings. Once she was without any counsel, Mother needed to indicate to the District Court, in any manner, that she needed another public defender. When notified that Mother did not have counsel, the District Court ordered one be appointed and twice continued the proceedings. Mother failed to follow through to engage another public defender. However, at all critical stages of the proceeding Mother was represented by counsel. ¶52 Under these facts, Mother’s due process right was not infringed when she was without counsel. CONCLUSION ¶53 It was not an abuse of discretion for the District Court to terminate Mother’s rights to M.V.R. Although Mother failed to cooperate with getting a new attorney appointed, Mother had counsel at all critical stages of these proceedings. Her due process rights were not infringed. ¶54 Affirmed. /S/ MIKE McGRATH 18 We Concur: /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE	November 29, 2016
e55cde5a-8759-440b-b2d7-40d77ccd8625	State v. B. Nauman	2016 MT 275N	DA 14-0812	Montana	Montana Supreme Court	DA 14-0812 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 275N STATE OF MONTANA, Plaintiff and Appellee, v. BRIAN VIRGIL NAUMAN, Defendant and Appellant. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-11-403B Honorable Robert B Allison, Presiding Judge COUNSEL OF RECORD: For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Kalispell, Montana Submitted on Briefs: September 7, 2016 Decided: October 25, 2016 Filed: __________________________________________ Clerk 10/25/2016 Case Number: DA 14-0812 2 Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Brian Virgil Nauman (Nauman) appeals from the District Court’s denial of his motion to withdraw his November 21, 2012 guilty plea for failing to register as a sex offender. We affirm. ¶3 In January 2001, Nauman was convicted of felony sexual assault on a minor. He served ten years in Montana State Prison (MSP) and was released in late 2010. Pursuant to § 46-23-504, MCA, he registered as a sexual offender with the Kalispell Police Department. In August 2011, Nauman’s probation officer learned he had moved or was maintaining a second residence and failed to notify law enforcement. On December 7, 2011, the State charged Nauman with failure to register as a sex offender. ¶4 On November 21, 2012, Nauman agreed to enter an Alford plea for failing to register as a sexual offender, pursuant to § 46-12-211(1)(b), MCA. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970). The plea included an Acknowledgement of Waiver of Rights that Nauman and both of his attorneys signed. ¶5 The plea agreement recommended a three-year suspended sentence to the Department of Corrections (DOC), to run consecutively with the remainder of his felony 3 sexual assault charge. The District Court sentenced him to MSP rather than DOC. Nauman appealed. In State v. Nauman, 2014 MT 248, ¶ 13, 376 Mont. 326, 334 P.3d 368, this Court reversed the sentence and remanded “with instruction that the District Court either enter a sentence consistent with the plea agreement or allow Nauman to withdraw his guilty plea.” ¶6 After his appeal, Nauman filed a pro se motion to withdraw his guilty plea, which the District Court denied as untimely. Nauman filed a motion to reconsider. On October 23, 2014, the District Court filed a Second Amended Judgment and Sentence in which it sentenced Nauman in accordance with the plea agreement. On November 28, 2014, the District Court filed an Order and Rationale rejecting Nauman’s motion to reconsider on the grounds that his Alford plea was knowing and voluntary. Nauman appeals the District Court’s denial of this motion to withdraw his guilty plea. ¶7 “This Court reviews a denial of a motion to withdraw a guilty plea de novo because whether a plea was entered voluntarily is a mixed question of law and fact.” State v. Valdez-Mendoza, 2011 MT 214, ¶ 12, 361 Mont. 503, 260 P.3d 151. ¶8 In his motion to withdraw Nauman argued he received ineffective assistance of counsel because he did not understand the statutes applicable to his case and therefore his plea was not knowing or voluntary. Nauman requests this Court not address his ineffective assistance of counsel claim at this time, therefore we will not. ¶9 For the first time on appeal, Nauman argues the District Court’s colloquy was not sufficient to establish his Alford plea was entered into knowingly and voluntarily, and that the District Court materially breached the agreement when it committed Nauman to 4 MSP rather than DOC. This Court will not entertain new issues that were not raised in the district court when a defendant appeals the denial of a motion to withdraw a prior plea. State v. Peterson, 2013 MT 329, ¶ 26, 372 Mont. 382, 314 P.3d 227. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of applicable standards of review. ¶11 Affirmed. /S/ MIKE McGRATH We Concur: /S/ MICHAEL E WHEAT /S/ LAURIE McKINNON /S/ PATRICIA COTTER /S/ JIM RICE	October 25, 2016
16e82a88-2779-4f46-917b-16863b40778f	Ova v. Oakland Home	2016 MT 296N	DA 16-0189	Montana	Montana Supreme Court	DA 16-0189 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 296N CARLA OVA, Plaintiff and Appellee, v. OAKLAND HOME BUILDERS CORPORATION and GARY E. OAKLAND, Defendants and Appellants. OAKLAND HOME BUILDERS CORPORATION, Cross-Claim Plaintiff and Appellant, v. TREASURE STATE PLUMBING AND HEATING CORPORATION, Cross-Claim Defendant and Appellee. APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 08-1339 Honorable Gregory R. Todd, Presiding Judge COUNSEL OF RECORD: For Appellant: W. Scott Green, Patten, Peterman, Bekkedahl & Green, PLLC, Billings, Montana (Attorney for Oakland Home Builders Corporation) Eric Edward Nord, Crist, Krogh & Nord, PLLC, Billings, Montana (Attorney for Gary E. Oakland) For Appellee: David P. Legare, David Legare Law, Billings, Montana (Attorney for Carla Ova) Leonard H. Smith, Crowley Fleck, PLLP, Billings, Montana (Attorney for Treasure State Plumbing and Heating Corporation) 11/15/2016 Case Number: DA 16-0189 2 Submitted on Briefs: September 7, 2016 Decided: November 15, 2016 Filed: __________________________________________ Clerk 3 Justice Patricia Cotter delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Oakland Home Builders Corporation (OHB) and Gary Oakland appeal from a jury verdict entered against them in August 2015, and associated orders, and from a February 2016 order of the Thirteenth Judicial District Court, Yellowstone County, dismissing Carla Ova’s claims against them with prejudice. We affirm. ¶3 In August 2015, a jury returned a verdict of $1.74 million dollars in favor of Ova and against OHB and Oakland. After trial, Appellants’ insurer, Mid-Continent Casualty Company (Mid-Continent), settled with Ova. In exchange, Ova released Appellants from liability and filed a motion to dismiss her claims against Appellants with prejudice. Appellants objected to the dismissal and moved for attorney’s fees and costs. The District Court granted Ova’s motion without granting fees and costs to Appellants, and dismissed the case with prejudice. ¶4 On appeal, OHB and Oakland raise a myriad of claims in seeking reversal of the jury verdict. However, as Ova points out, “[w]hether an appeal is justiciable is a threshold question that this Court determines before proceeding to the merits.” Serrania v. LPH, Inc., 2015 MT 113, ¶ 12, 379 Mont. 17, 347 P.3d 1237. “An appeal is moot and non-justiciable when ‘an intervening event or change in circumstances’ renders this Court 4 unable ‘to grant effective relief or to restore the parties to their original position.’” Serrania, ¶ 14 (quoting Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276 P.3d 867). In the instant case, Ova has released Oakland and OHB from liability pursuant to her settlement with Mid-Continent. The controversy between Ova and OHB and Oakland leading to the jury verdict, which arose out of damage caused to the foundation of Ova’s home by Appellants’ actions, ceased to exist when the District Court dismissed her claims with prejudice. Therefore, if the dismissal of the case was proper, the claims raised by OHB and Oakland on appeal related to the jury verdict are moot. ¶5 OHB argues the District Court erred in dismissing the case because the dismissal will cause substantial prejudice to OHB and, alternatively, if the dismissal was proper, curative conditions should be imposed. M. R. Civ. P. 41(a)(2) allows a district court to dismiss an action, by court order, on terms that the court considers proper. We review a district court’s dismissal of an action under Rule 41(a)(2) for an abuse of discretion. Peritz v. Alberstons, Inc., 187 Mont. 102, 107, 608 P.2d 1089, 1092 (1980). ¶6 In cases where the dismissal is without prejudice, “[t]he general rule is that dismissal should be allowed unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit.” Peritz, 187 Mont. at 107, 608 P.2d at 1092 (citation omitted). When granting a motion for dismissal under Rule 41(a)(2), a district court may “require a plaintiff to pay costs and reasonable attorney fees, or it may choose to impose no conditions at all[.]” Peritz, 187 Mont. at 108, 608 P.2d at 1092. Where a dismissal is with prejudice there can be no second suit as the subsequent claim 5 would be barred by res judicata. Under the circumstances here, there is no cognizable argument that can support Appellants’ premise that they will suffer plain legal prejudice as a result of the dismissal.1 Therefore, we determine that the District Court did not abuse its discretion in dismissing the action against OHB and Oakland on Ova’s motion. ¶7 Appellants argue they are entitled to attorney’s fees and costs and ask us to rule that a dismissal with prejudice transforms a defendant into a prevailing party, thereby entitling it to costs under M. R. Civ. P. 54(d). We have held that “[c]osts are generally allowable to the prevailing party pursuant to Rule 54(d) . . . unless the court directs otherwise, except when expressly provided by statute.” Pankratz Farms, Inc. v. Pankratz, 2004 MT 180, ¶ 90, 322 Mont. 133, 95 P.3d 671. Appellants do not cite any statutory authority for an award of costs to them as “a prevailing party” under these circumstances. The District Court did not abuse its discretion in directing that Appellants were not entitled to attorney’s fees and costs. We further determine that the District Court did not abuse its discretion in choosing not to impose curative conditions on the dismissal. ¶8 In summary, because we determine that the dismissal of Ova’s claims was proper, the issues raised by OHB and Oakland on appeal as to the propriety of the jury verdict are moot. Further, even if we were to find that the issues presented on appeal were not moot, Appellants have not established a coherent avenue for relief on appeal. “Voluntary dismissal of an action with prejudice constitutes a final judgment on the merits.” Touris 1 Appellants’ claims of prejudice relate to their concerns about potential liability for some or all of the settlement amount. They are currently in litigation against Mid-Continent on issues relating to coverage for the underlying actions in this case. 6 v. Flathead County, 2011 MT 165, ¶ 15, 361 Mont. 172, 258 P.3d 1. The grounds upon which a party may seek relief from a final judgment are outlined in M. R. Civ. P. 60(b)(1)-(6). Appellants have not presented any argument invoking the provisions of Rule 60. ¶9 Finally, Ova asks this Court to award attorney’s fees and costs incurred during the instant appeal. Under M. R. App. P. 32, this Court may impose sanctions against a party for filing a frivolous appeal. Murphy Homes, Inc. v. Muller, 2007 MT 140, ¶ 89, 337 Mont. 411, 162 P.3d 106. “As a general rule, we will not impose sanctions pursuant to [Rule 32] unless the appeal is entirely unfounded and intended to cause delay or unless counsel’s actions otherwise constitute an abuse of the judicial system.” Murphy Homes, Inc., ¶ 90. We decline to award Ova attorney’s fees and costs incurred during the instant appeal. ¶10 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for unpublished opinions. In the opinion of this Court, this case presents a question controlled by settled law. ¶11 Affirmed. /S/ PATRICIA COTTER We Concur: /S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ JIM RICE	November 15, 2016
bfdd24b5-26c5-41a6-bf70-a4a3c5c3aadc	Chyatte v. Kirkegard	2016 MT 273N	DA 16-0069	Montana	Montana Supreme Court	DA 16-0069 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 273N DOUGLAS JOSEPH CHYATTE, Plaintiff and Appellant, v. LEROY KIRKEGARD, Warden, Montana State Prison, MIKE BATISTA, Director, Montana Department of Corrections, Defendants and Appellees. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2015-133 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Douglas Joseph Chyatte, Self-Represented, Deer Lodge, Montana For Appellee: Ira Eakin, Special Assistant Attorney General, Montana Department of Corrections, Helena, Montana Submitted on Briefs: August 31, 2016 Decided: October 25, 2016 Filed: __________________________________________ Clerk 10/25/2016 Case Number: DA 16-0069 2 Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Douglas Joseph Chyatte (Chyatte) appeals from an order denying his Motion for a Preliminary Injunction entered in the First Judicial District Court, Lewis and Clark County, on December 31, 2015. Chyatte argues that the District Court’s denial of his request for preliminary injunction was a manifest abuse of discretion. We affirm. ¶3 Chyatte is incarcerated at the Montana State Prison (MSP). Chyatte is disabled, which impairs his mobility, and may also make him ineligible for jobs that are available at MSP. It is unclear whether his disability makes him ineligible for every job. Chyatte claims he must rely on money given to him by family members to pay for copies of documents which are necessary for him to pursue various legal actions. MSP charges $0.20 per page for single-sided copies and $0.40 per page for duplex copies. ¶4 Chyatte’s Motion for Preliminary Injunction seeks to enjoin MSP and Department of Correction (DOC) officials from charging more than $0.05 per page for single-sided black and white copies, and $0.10 per page for copies generated by the DOC Records Department. ¶5 The District Court concluded that Chyatte failed to establish a prima facie case that he will suffer irreparable injury pending resolution of this dispute. Concluding that 3 § 27-19-201, MCA, was designed to prevent immediate, serious harm to the applicant; the District Court found that Chyatte had failed to meet his burden. On appeal, Chyatte argues that “when a prisoner’s efforts to pursue a legitimate civil rights complaint, or obtain appellant review [are frustrated], there has been a violation of the Due Process Clause.” In support of his appeal, Chyatte submitted an appendix which contains five exhibits which were not submitted to the District Court and are not part of the trial record. ¶6 This Court will not disturb a district court’s decision to grant or deny a preliminary injunction unless a manifest abuse of discretion has been shown. Doe v. Cmty. Med. Ctr., Inc., 2009 MT 395, ¶ 14, 353 Mont. 378, 221 P.3d 651. “A manifest abuse of discretion is ‘one that is obvious, evident or unmistakable.’” Doe, ¶ 14. ¶7 Section 27-19-201, MCA, sets forth the requirements for issuing a preliminary injunction: (1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; (2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant; (3) when it appears during the litigation that the adverse party is doing or threatens or is about to do or is procuring or suffering to be done some act in violation of the applicant’s rights, respecting the subject of the action, and tending to render the judgment ineffectual. ¶8 The provisions are in the disjunctive, meaning that Chyatte must satisfy only one of the subsections to be entitled to relief. Sweet Grass Farms v. Bd. of Co. Comm’rs, 2000 MT 147, ¶ 27, 300 Mont. 66, 2 P.3d 825. Our review of the record and pleadings 4 convinces us that Chyatte has failed to establish that he has satisfied any one of the subsections of § 27-19-201, MCA. ¶9 While not entirely clear in his brief, Chyatte appears to argue that the photocopy policy of MSP caused him irreparable injury because the policy effectively denies him access to the courts, which is a constitutional right. Chyatte appears to assert that the prices of copies set by the MSP, in conjunction with Chyatte’s lack of available funds, creates a situation where he is unable to make copies necessary to pursue his various legal matters. Chyatte claims that in an unrelated matter the “U.S. District Court for the District of Montana, Missoula Division, refuse[d] to publish Chyatte’s proposed jury instructions as a result of Chyatte’s inability to provide photocopies of the proposed jury instructions to opposing counsel[ ] in that matter.” He further claims that the Defendants in the federal case attempted to have Chyatte’s opening brief struck due to his inability to produce photocopies of the exhibits attached to the briefs. ¶10 Chyatte, however, fails to provide a docket number, a case name, or show how an attempt by the defendants in this unrelated civil matter caused him irreparable injury which we may address in the instant proceeding. While Chyatte did add some documents in his appendix in an attempt to support his arguments, we are unable to review evidence not available to the District Court. Frank v. Harding, 1998 MT 215, ¶ 7, 290 Mont. 448, 965 P.2d 254. The District Court properly exercised its discretion when it concluded that Chyatte failed to show that his access to the courts was violated or about to be violated because no evidence was before the District Court that indicated Chyatte had suffered, or was about to suffer, an actual harm. 5 ¶11 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the case presents a question controlled by settled law or by the clear application of relevant standards of review. ¶12 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ MICHAEL E WHEAT /S/ BETH BAKER /S/ PATRICIA COTTER /S/ JIM RICE	October 25, 2016
b1a83306-9fc8-41c0-877d-4aa43f482337	Davenport v. Morrison et al.	2016 MT 333N	DA 16-0325	Montana	Montana Supreme Court	DA 16-0325 IN THE SUPREME COURT OF THE STATE OF MONTANA 2016 MT 333N KRISTINE DAVENPORT, Plaintiff and Appellant, v. MORRISON & FRAMPTON, PLLC, SHARON M. MORRISON, SEAN S. FRAMPTON, BRIAN JOOS and RYAN PURDY, Defendants and Appellees. APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-16-132C Honorable Robert L. Deschamps, III, Presiding Judge COUNSEL OF RECORD: For Appellant: Kristine Davenport (Self-Represented), Missoula, Montana For Appellees: Fred Simpson, Reep, Bell, Laird, Simpson & Jasper, P.C., Missoula, Montana Submitted on Briefs: November 16, 2016 Decided: December 20, 2016 Filed: __________________________________________ Clerk 12/20/2016 Case Number: DA 16-0325 2 Justice Michael E Wheat delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 This case arises from a failed subdivision/real estate development project in Lincoln County, Montana. In 2007, the lending bank loaned the developer $250,000. Before the project was completed the bank filed to foreclose on the $250,000 loan. In 2008, the developer’s attorney asked the Davenports for financial assistance and the Davenports agreed to invest approximately $547,000 into the project, allowing the project to be completed and preventing foreclosure. The bank agreed to hold the foreclosure action in abeyance while the development was completed. However, when the project was completed, the developer failed to sell any properties therein. The bank amended its original foreclosure complaint to add the Davenports, among others, as parties and again sought foreclosure. ¶3 Sean Frampton, a Whitefish resident and investor in the development project, as well as a partner in Morrison & Frampton, a law firm located in Whitefish, Flathead County, Montana, represented the owners and the developing contractor in the foreclosure action. According to Kristine Davenport, Frampton induced her to allow a default judgment to be entered against her in the Lincoln County foreclosure proceeding, 3 convincing her that he would obtain a favorable outcome in that litigation and that all the parties, including those against whom default judgments had been entered, would benefit. Frampton failed to prevail and the Davenports, and other investors and contractors, lost considerable funds as well as the property. ¶4 In January 2013, the Davenports, residents of Missoula, Missoula County, Montana, and acting pro se, sued Morrison & Frampton and its partners, alleging multiple contract and tort causes of action, including breach of contract, deceit, fraud, and negligent misrepresentation. They sought compensatory and punitive damages as well as costs and attorneys’ fees. Early in the proceeding, Kristine’s parents, James, who had died, and Aileen, were dismissed as parties to the action, leaving Kristine as the sole plaintiff. ¶5 Morrison & Frampton moved to change venue from Missoula County to Flathead County. On February 4, 2016, the Fourth Judicial District Court, Missoula County, granted the motion and instructed the clerk of court to transmit the record to the Flathead County clerk of court. ¶6 Kristine Davenport appeals the court’s order granting a change of venue. We affirm. ¶7 The dispositive issue on appeal is whether the District Court erred in granting Morrison & Frampton’s Motion to Change Venue to Flathead County. We review a district court’s grant or denial of a motion to change venue for improper county for correctness. Circle S Seeds of Mont., Inc. v. Mont. Merch., Inc., 2006 MT 311, ¶ 5, 335 Mont. 16, 157 P.3d 671 (citations omitted). 4 ¶8 The District Court expressly noted that Davenport alleged both contract and tort claims. It concluded that under § 25-2-121(1), MCA, venue for a contract claim must be brought in either the county where the defendants, or any of the defendants, reside or in the county where the contract was to be performed. The court observed that all of the defendants in this case reside in Flathead County. The court further noted that the defendants did not perform any contractual services in Missoula County. Consequently, the District Court ruled that Flathead County was the proper venue for Davenport’s contract claims. ¶9 Turning to Davenport’s tort claims, the court relied upon § 25-2-122(1)(a) and (b), MCA, which provides that the proper venue for a tort action is “the county in which the defendants or any of them reside at the commencement of the action,” or in “the county in which the tort was committed.” The statute further provides that if the “tort is interrelated with and dependent upon a claim for breach of contract, the tort was committed, for the purpose of determining the proper place of trial, in the county in which the contract was to be performed.” Section 25-2-122(1)(b), MCA. The court concluded that the proper venue for Davenport’s tort claims was Flathead County. ¶10 Davenport, continuing to represent herself, argues on appeal that the tortious actions of deceit and fraud took place in Missoula County when Frampton called Davenport at her Missoula home and claimed that he would win the Lincoln County foreclosure action. She asserts that her tort claims were neither related to nor dependent upon her contract claims and therefore could be tried separately, presumably with the tort claims being heard in Missoula County and the contract claims being heard in Flathead 5 County. Morrison & Frampton counters that the resident county of the defendants is the proper venue for all of Davenport’s claims. In addition to relying on §§ 25-2-121 and -122, MCA, Morrison & Frampton relies upon § 25-2-116, MCA, which provides: In an action involving two or more claims for which this part designates more than one as a proper place of trial, a party entitled to a change of place of trial on any claim is entitled to a change of place of trial on the entire action, subject to the power of the court to separate claims or issues for trial under Rule 42(b) of the Montana Rules of Civil Procedure. ¶11 The District Court correctly determined that Flathead County was the appropriate place of trial for this cause of action. Under the facts of this case and the applicable statutes, both the contract and tort claims against Morrison & Frampton are correctly reviewed in the resident county of the defendants. We further conclude that Davenport’s arguments seeking to place venue in Missoula County based upon Frampton’s alleged “unclean hands” and her view that venue in Flathead County is “manifestly unjust and inequitable” are without merit. ¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. In the opinion of the Court, the District Court’s interpretation and application of the relevant law was correct. ¶13 Affirmed. /S/ MICHAEL E WHEAT We Concur: /S/ LAURIE McKINNON /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ JIM RICE	December 20, 2016

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