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MB. JUSTICE HOLLOWAY
delivered the opinion of the court.
On March 22, 1922, the Yellowstone Valley Bank & Trust Company, a domestic corporation, failed in business and was closed by the state superintendent of banks and, in October following, was placed in the hands of a receiver appointed to wind up its affairs.
At the time it failed, the bank was indebted to its depositors whose claims were not secured, and it was indebted also to the War Finance Corporation (hereinafter called the corporation) to the extent of $125,653.83 for borrowed money, which claim was secured by a pledge of sundry promissory notes, executed by individuals who had borrowed from the bank. Immediately after the bank failed, the corporation collected approximately $27,000 from these pledged notes, and in January, 1923, presented its claim for $99,376,19, the balance then due, but before the claim was acted upon it was amended so as to demand the full amount due at the time the bank failed. After the claim was presented but before any dividend was declared, the corporation collected from the pledged security the further sum of $27,000 in round numbers.
Claims of unsecured creditors aggregating about $280,000 were presented and approved, and in April, 1924, a dividend of twenty per cent was ordered and was distributed to those holding approved claims, but at that time the claim of the corporation had not been passed upon — neither allowed nor disallowed.
On March 20, 1925, the court in which the receivership proceeding was pending entered an order refusing to allow the claim of the corporation unless and until it either surrendered to the receiver the collateral held by it, or exhausted the security and applied the proceeds in reduction of the amount of its claim. If the latter alternative were chosen, the court indicated that the claim would then be allowed for the balance and the same dividends paid thereon from the general assets, as had been paid or should be paid upon other claims. From that order the corporation appealed and now insists that it should be paid dividends computed upon the amount due to it at the time the bank failed, without reference to the amounts collected from its security, either before or after it presented its claims.
The question for determination is: Upon what basis should the corporation share in the distribution of the general assets of the failed bank?
A like question has been before the courts of this country repeatedly during more than a century, arising out of voluntary assignments, the administration of estates of deceased insolvents or winding up proceedings. Speaking generally, the question arises under one of three sets of circumstances:
(a) Where the secured creditor has not collected anything from his security.
(b) Where, after the insolvency has occurred, but before he presents his claim, he realizes a part of the amount of his claim, from the collateral held by him.
(c) Where, after he presents his claim, but before a dividend is paid, he collects a part of the amount of his claim, from his security.
Differences in the language employed in deeds of assignments, the influence of local statutory provisions, and different theories of the law applicable, have led to particular differences in judicial decisions and to some confusion.
The trial court adopted the bankruptcy rule, so called because it has been applied in bankruptcy generally and is the rule prescribed by our National Bankruptcy Act (30 Stats, at Large, 544 [U. S. Comp. Stats., secs. 9585-9656]), though the courts are unable to agree as to the origin of the rule. It was invoked in this country first in 1820 (Amory v. Francis, 16 Mass. 308) and has been followed in Iowa (Wurtz v. Hart, 13 Iowa, 515, Doolittle v. Smith, 104 Iowa, 403, 73 N. W. 867), in Washington (In re Frasch, 5 Wash. 344, 31 Pac. 755; First Nat. Bank v. Bank, 127 Wash. 475, 221 Pac. 595), in Kansas (Bank of Kansas City v. Branch, 57 Kan. 27, 45 Pac. 88; Investment Co. v. Richmond Nat. Bank, 58 Kan. 414, 49 Pac. 521; Bank v. State, 8 Kan. App. 468, 54 Pac. 510), in Mississippi (Bank v. Duncan, 84 Miss. 467, 36 South. 690), and in Georgia (Citizens’ & Southern Bank v. Alexander, 147 Ga. 74, L. R. A. 1918B, 1021, 92 S. E. 868). It was approved by the dissenting Justices in Merrill v. Nat. Bank, 173 U. S. 131, 43 L. Ed. 640, 19 Sup. Ct. Rep. 360, and in effect has been reduced to statutory form in Idaho (Blackman v. Pettengill, 25 Idaho, 307, 137 Pac. 182), in Minnesota (Swift v. Fletcher, 6 Minn. 550 [Gil. 386]), and in New Hampshire (Bank Commissioners v. Security Trust Co., 70 N. H. 536, 49 Atl. 113). Statutes, somewhat similar, though of more restricted application, prevail in California (In re Levin, 139 Cal. 360, 63 Pac. 335, 73 Pac. 159), and in New Jersey (State Bank v. Receivers, 3 N. J. Eq. 266; Butler v. Tobacco Co., 74 N. J. Eq. 423, 70 Atl. 319).
This rule proceeds upon the theory that the amount of the secured creditor’s claim against the general assets of the in solvent estate cannot be determined until he either surrenders his security or converts it into cash and applies the proceeds toward the discharge of his claim. It denies to the secured creditor, as such, the right to participate in the distribution of the general assets. If he surrenders his security, he participates as an unsecured ■ creditor, and if he converts his security into money and applies the proceeds upon his claim, he participates only upon the basis of the remainder and as an unsecured creditor. In so far as the rule requires the secured creditor to surrender his security, it robs him of the benefit of the contract under which he obtained the security and deprives him of the fruits of his prudence and foresight. In so far as it requires him to convert his security into cash and apply the proceeds to his claim before he is permitted to receive a dividend from the general assets of the estate, it is impracticable of application in this case. The corporation cannot sell the notes which it holds as collateral. Section 8312, Revised Codes, declares: “A pledgee cannot sell any evidence of debt pledged to him, except the obligations of governments, states, or corporations; but he may collect the same when due.”
If that rule be applied in this case, the corporation must either surrender the advantage it gained by obtaining security for its debt, or it must wait for a dividend from the general assets until, if ever, it collects every one of the ninety-two pledged notes which it held at the time the bank failed.
This is not a proceeding in bankruptcy, and we are not disposed to adopt the rule which is opposed by the great weight of authority and, in our opinion, by the better .reasoning.
The other courts which have considered the question, all concede to the secured creditor, as such, the right to participate in the distribution of the general assets of the insolvent estate, but they do not agree as to the basis upon which his dividends should be computed.
Many of the courts follow the rule which authorizes the secured creditor to receive dividends computed upon the amount due to him at the time his debtor’s insolvency occurs, without deducting any amounts which he may have realized from his security after that date, provided only that the dividends received and the amounts realized from his security shall not exceed the amount of his claim. This rule is frequently referred to' as the English chancery rule, though, in that form, it was never enforced in England at any time. It was adopted in this country in Connecticut in 1817 (Findlay v. Hosmer, 2 Conn. 350), and has been adhered to in Delaware (Mark v. Brick Mfg. Co., 10 Del. Ch. 58, 84 Atl. 887), Kentucky (Logan v. Anderson, 18 B. Mon. (Ky.), 114; Hibler v. Davis, 13 Bush, 20; Citizens’ Bank v. Patterson, 78 Ky. 291), Michigan (Third Nat. Bank v. Haug, 82 Mich. 607, 11 L. R. A, 327, 47 N. W. 33; In re Bement’s Sons, 150 Mich. 530, 114 N. W. 327), New York (People v. Remington, 121 N. Y. 328, 8 L. R. A. 458, 24 N. E. 793), North Carolina (Brown v. Merchants’ & Farmers’ Nat. Bank, 79 N. C. 244; Winston v. Biggs, 117 N. C. 206, 23 S. E. 316; Merchants’ Nat. Bank v. Flippen, 156 N. C. 334, 74 S. E. 100), Oregon (Kellogg v. Miller, 22 Or. 406, 29 Am. St. Rep. 618, 30 Pac. 229), Pennsylvania (Skunk’s Appeal, 2 Pa. 304; Miller’s Appeal, 35 Pa. 481; Boyer’s Appeal, 163 Pa. 143, 29 Atl. 1001), Rhode Island (Allen v. Danielson, 15 R. I. 480, 8 Atl. 705, overruling In re Knowles, 13 R. I. 90; Greene v. Jackson Bank, 18 R. I. 779, 30 Atl. 963; In re Burke, 25 R. I. 302, 55 Atl. 825), Tennessee (Bank Cases, 92 Tenn. 437, 21 S. W. 1070), Vermont (West v. Bank, 19 Vt. 403), Virginia (Bank v. Trigg Co., 106 Va. 327, 56 S. E. 158), West Virginia (Williams v. Overholt, 46 W. Va. 339, 33 S. E. 226; Price v. Hosterman, 70 W. Va. 12, 73 S. E. 55), and Wisconsin (Harrigan v. Gilchrist, 121 Wis. 127, 99 N. W. 909; Corbett v. Joannes, 125 Wis. 370, 104 N. W. 69). It has been enforced generally by the federal courts since the decision in Chemical Nat. Bank v. Armstrong, 59 Fed. 372, 28 L. R. A. 231, 8 C. C. A. 155, and was adopted by the majority of the United States supreme court in Merrill v. Bank, 173 U. S. 131, 43 L. Ed. 640, 19 Sup. Ct. Rep. 360, and reaf firmed in Aldrich v. Bank, 176 U. S. 618, 44 L. Ed. 611, 20 Sup. Ct. Rep. 498.
The fundamental principle which underlies this rule is that immediately upon insolvency occurring, all of the creditors of the insolvent become joint proprietors of the sequestered property, each one owning such a proportional part of the whole as the debt then due to him bears to the aggregate amount of the debts, and that each one participates in the distribution of the estate, not as a creditor, but as an owner. This was the doctrine announced in Miller’s Appeal, 35 Pa. 481, and approved by the supreme court of the United States in Merrill v. Bank, above. Because that is the foundation upon which the rule rests, we are unable to apply the rule in this case, This court has declared repeatedly that the appointment of a receiver does not operate to transfer the title to the property involved. The title still remains in the insolvent, though possession and control of the property are in the receiver to the end that the estate may be administered under the direction of the court. (State ex rel. First T. & S. Bank v. District Court, 50 Mont. 259, 146 Pac. 539; Aetna A. & L. Co. v. Miller, 54 Mont. 377, L. R. A. 1918C, 954, 170 Pac. 760; State ex rel. Rankin v. Bank, 68 Mont. 342, 218 Pac. 652.)
Another rule provides that the secured creditor must deduct from his original claim any amounts he may have realized from his security, and the balance so shown to be due at the time any particular dividend is distributed shall constitute the basis for computing such dividend. This rule was first applied in 1887, Third Nat. Bank v. Lanahan, 66 Md. 461, 7 Atl. 615, and reaffirmed in Bank v. Bank, 80 Md. 371, 45 Am. St. Rep. 350, 27 L. R. A. 476, 30 Atl. 913, It has been followed since in Alabama (Philadelphia Warehouse Co. v. Anniston Pipe Works, 106 Ala. 357, 18 South. 43), in Arkansas (Jamison v. Adler-Goldman Co., 59 Ark. 548, 28 S. W. 35), in Colorado (Erle v. Lane, 22 Colo. 273, 44 Pac. 591), in Hawaii (Kapu’s Estate, 18 Haw. 369), in Missouri (McCune’s Estate, 76 Mo. 200), in Nebraska (State v. Bank, 40 Neb. 342, 58 N. W. 976), in Indiana (Union Trust Co. v. Trust Co., 194 Ind. 314, 142 N. E. 711), and in Ohio (State Nat. Bank v. Esterly, 69 Ohio St. 24, 68 N. E. 582). It requires a readjustment of the basis of distribution at the time each succeeding dividend is declared, and most of the decisions sustaining it were influenced by local statutory regulations.
In this state we do not have any statutes which reflect upon the matter directly, but our Probate Practice Act does furnish a guide to what we deem to be a proper solution of the question. Section 10174, Revised Codes, provides that every claim presented against an estate of a deceased person “must be supported by the affidavit of the claimant, or someone in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant.” Section 10176 provides that every claim, to be effective, must be allowed by the administrator and district judge, or, if rejected, must be reduced to judgment; which judgment merely establishes the claim in the same manner as if it had been allowed by the administrator and judge. (Sec. 10185, Rev. Codes.) Section 10309, Revised Codes, provides: “If the estate is insufficient to pay all the debts of any one class, each creditor must be paid a dividend in proportion to Ms claim.” In the classification of claims preference is given to the debts of the deceased, secured by mortgage on real or personal property (sec. 10307, Rev. Codes; Horsfall’s Estate, 20 Mont. 495, 52 Pac. 199), but no distinction whatever is made between claims secured by pledge and unsecured claims. It is thus demonstrated that it is the amount actually due the creditor at the time he makes presentation which constitutes Ms claim. In other words, he must deduct any amounts which he has received from his security after the death of the deceased and before he makes presentation, and the balance then due is fixed definitely as the basis upon which to compute dividends to him from the general assets of the estate involved. For this reason it is impossible to apply the bankruptcy rule or the so-called chancery rule to the distribution of the estate of a deceased insolvent, where any collections have been made from security held by a creditor.
The rule just considered, which fixes the amount due the secured creditor at the time he presents his claim, as the basis for computing dividends to him from the general assets of the estate, is the equity rule as established and enforced by the English courts (Mason v. Bogg, 2 Mylne & C. 443; Kellock’s Case, L. R. 3 Ch. App. 769) and applied by the supreme court of Illinois in Levy v. Bank, 158 Ill. 88, 30 L. R. A. 380, 42 N. E. 129, and apparently followed by the South Carolina court in Wheat v. Dingle, 32 S. C. 473, 8 L. R. A. 375, 11 S. E. 394. Since it is made the rule by our Code for the computation of dividends from the general assets of the estate of a deceased insolvent, every reason is present for adopting the same rule in winding up proceedings such as the one before us. In principle there is not any difference in the relationship which the receiver of this insolvent bank bears to the creditors of the bank, and that which an administrator of the estate of a deceased insolvent bears to the creditors of the estate. The receiver, in the one instance, or the administrator in the other, is but the agent or officer of the court through which the estate is distributed to those entitled to it. We think the rule is a reasonable one, and since its adoption will tend to uniformity in the law, it should prevail in this instance.
The order is reversed, and the cause is remanded to the district court, with directions to compute the dividends upon the amount due to the corporation at the time its claim was presented in January, 1923.
Beversed and remanded.
Mr. Chief Justice Callawat and Associate Justices Galen, Stark and Matthews concur.
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MR. JUSTICE' STARK
delivered the opinion of the court.
The complaint in this action alleges that defendant, “through its board of health and one [Dr.] Arthur Jordan, its county health officer, employed plaintiff to perform certain labor and services in sanitary and excavating operations in and about the town of East Helena,” and promised to pay him the reasonable value thereof; that the plaintiff duly performed the same, and that the reasonable value thereof was $523.25; that he duly presented his claim for this amount to defendant and demanded payment thereof, which was refused, and prays judgment against the defendant for that amount. Defendant’s answer denied all the above allegations of the complaint.
The ease was tried before a jury. It was admitted that the Arthur Jordan referred to in the complaint was the secretary of the county board of health. Plaintiff testified that the work which he performed was the cleaning of vaults and sanitary work in East Helena; that he was ordered to do this work by Dr. Jordan and charge the amount to the county; that before doing the work he asked about the payments, and Dr. Jordan referred him to County Attorney Padbury, who told him to go ahead and do the work, bring the bills to bim after they had been O. K.’d and he would see that they were paid; that he did the best he could to make sure of Dr. Jordan’s authority, and “even consulted the mayor,” who said, “Dr. Jordan was the county health physician and officer.” Further evidence was introduced showing that Dr. Jordan had assumed to appoint one John McNamara as “deputy health officer of Lewis and Clark county”; that McNamara inspected premises in East Helena which he determined should be cleaned and served upon the occupants printed notices warning them to clean the same; that the expense of printing and serving these notices was paid by the plaintiff; that if the occupants neglected to clean the premises within the time (three days) specified in the notices, plaintiff and McNamara then consulted with Dr. Jordan, who told plaintiff “to go ahead and clean them,” and plaintiff did so; that in three or four instances Dr. Jordan made personal inspection of the premises before McNamara ordered them cleaned.
After plaintiff cleaned the premises as above directed, he made out bills for the work, which were 0. K.’d by McNamara, and eleven such bills form the basis of this action. The plaintiff also showed by the records of the board of county commissioners that the board had declined to pay the bills, for the reason that they had been contracted without the knowledge or consent of the county board of health or of the board of county commissioners.
All the foregoing testimony relative to the transactions between the plaintiff and Dr. Jordan, the appointment of McNamara as deputy health officer and his acts under such appointment, was admitted over appropriate objections of the defendant.
At the close of plaintiff’s testimony counsel for defendant moved the court to grant a nonsuit on the ground, amongst others, that no authority had been disclosed either in the secretary of the county 'board of health or the so-called deputy health officer, McNamara, to incur the indebtedness upon which the complaint was based. The motion was sustained. Judgment was entered in accordance therewith from which the plaintiff had appealed. The only question presented on the appeal is whether the court erred in sustaining defendant’s motion for a nonsuit.
Section 2473, Revised Codes of 1921, establishes in each county a “county board of health,” which consists of the board of county commissioners and one physician, who must be appointed by the board, who thereby becomes ex officio secretary of the board and the “county health officer.” This section further provides: “The county health officer shall have the same powers and perform the same duties in the county of his appointment, outside of the limits of incorporated towns or cities, as are hereinabove provided for a local health officer within the corporate limits of a town or city. * * * ”
The powers and duties of a local health officer are prescribed by section 2467, which, so far as applicable to this case, reads: “The local health officer shall make sanitary inspection whenever and wherever he has reason to suspect that anything exists that may be detrimental to the public health. He shall, as secretary of the local board of health, by a written instrument under his hand, order the destruction, prevention, and removal, within a specified time, of all nuisances, sources of filth, or causes of sickness, as directed by the local board of health.” We have not discovered in the statute any authority for the appointment of a deputy health officer.
Sections 2467, 2470 and 2475 authorize local and county boards of health to abate nuisances, to remove sources of filth, and to establish sanitary rules and regulations. Section 2468 provides that if any person neglects to comply with any written order of a local, county or state health officer, the local, county, or state board of health may cause it to be complied with at the expense of the town, city, or county, and that such expenses may be recovered from the person or cor poration whose legal duty it was to comply with such order, by a civil action brought in the name of such town, city or county.
It will be noted that none of the above sections contains any authorization for the county health officer to proceed with steps for the abatement of nuisances or the removal of sources of filth and incur expenses in connection therewith, except as he may be directed to do so by the county board of health.
All of the above-cited sections are found in Chapter 192, Part III, of the Political Code, which has to do with state, local and county boards of health. That the legislature had in mind that conditions might arise under which the secretary of one of these boards should be authorized to act without authorization from the board itself is indicated by section 2459, which provides that in emergency eases the secretary of the state board of health shall have the full power of the state board to act until such time as a meeting of such board may be duly called; but there is no provision authorizing the county health officer to take steps for the abatement of nuisances or the removal of sources of filth without first having received authorization from the county board qf health.
For the purposes of the matters now under consideration the county is considered as a municipal corporation. (State ex rel. Coad v. Judge of Ninth Judicial District Court, 23 Mont. 171, 57 Pac. 1095.)
“The general rule is well settled and is constantly enforced that one who makes a contract with a municipal corporation, is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract. That is, persons dealing with a municipal corporation through its agent are bound to know the nature and extent of the agent’s authority.” (3 McQuillin on Municipal Corporations, sec. 1166.),
“It is a general and fundamental principle of law that all persons contracting with a municipal corporation must at their peril inquire into the statutory power of the corporation or of its officers to make the contract. # * * So, also, those dealing with the agent of a municipal corporation are likewise bound to ascertain the nature and extent of his authority. This is certainly so in all cases where this authority is special and of record or conferred by statute.” (2 Dillon on Municipal Corporations, sec. 777.)
The rule announced in the above-quoted authorities was expressly sanctioned by this court in Keeler Bros. v. School District, 62 Mont. 356, 205 Pac. 217, where it is said: “A person dealing with the agents of a municipal corporation must at his peril see that such agents are acting within the scope of their authority and line of their duty, and if he make an unauthorized contract he does so at his own risk.”
It is also the rule that the contract of a municipal corpora tion, made otherwise than as prescribed by statute, is not binding, and a recovery cannot be had thereon. (Keeler Bros. v. School District, supra; Reams v. Cooley, 171 Cal. 150, Ann. Cas. 1917A, 1260, 152 Pac. 293.)
Applying these established rules of the law to the undisputed facts presented in this record, it is apparent that, since Dr. Jordan did not seek and was not granted authority from the county board of health to enter into the contract or incur the expense made the basis of plaintiff’s cause of action, he had no authority to make the contract or incur such expense, and consequently the plaintiff wholly failed to prove the contract set out in his complaint. Therefore the order of the court sustaining the motion for a nonsuit was correct.
But it is contended on the part of the appellant that the defendant is estopped to deny its liability upon the contract set forth in the complaint. Even if the evidence introduced at the trial, and which was admitted over the objections of the defendant, had been sufficient to establish the estoppel claimed, a complete answer to counsel’s contention would be that estoppel was not pleaded, although ample opportunity for doing so existed. .Under such circumstances one must plead an estoppel in order to avail himself of it. (Colwell v. Grandin Inv. Co., 64 Mont. 518, 210 Pac. 765; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994.)
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
The defendant was convicted of the crime of grand larceny and sentenced to a term in the state prison. He thereupon moved for a new trial, alleging as grounds therefor that the court erred in decisions of law arising during the course of the trial, misdirected the jury in matters of law, and that the verdict was contrary to the law and the evidence. The court granted the motion upon all the grounds specified. From the order granting the motion the state has appealed.
1. If the court was warranted in granting the motion upon either of those grounds the order must be affirmed. (State v. Foster, 26 Mont. 71, 66 Pac. 565), and it is only in exceptional cases supported by cogent reasons .that this court will set aside an order granting a new trial, especially in a criminal case. (State v. Schoenborn, 55 Mont. 517, 179 Pac. 294.)
In State v. Foster, supra, Mr. Chief Justice Brantly laid down the rules which are apt here: “The rule has frequently been declared by this court that an application for a new trial on the ground that the evidence is insufficient to justify the verdict, or that the verdict is contrary to the evidence, is addressed to the sound discretion of the trial court, and that where there is a substantial conflict in the evidence, the action of that court in granting, or denying the application, will not be disturbed on appeal. (Hamilton v. Nelson, 22 Mont. 539, 57 Pac. 146; Patten v. Hyde, 23 Mont. 23, 57 Pac. 407.) If, however, there is no substantial evidence to support the verdict, a different rule applies. In the latter case it becomes the duty of the trial court, as a matter of law, to vacate and set aside the verdict, and if it refuses to do so, its action will be held erroneous. (State v. Welsh, 22 Mont. 92, 55 Pac. 927.)” (And see State v. McCarthy, 36 Mont. 226, 92 Pac. 521.)
2. The evidence shows that a thief had driven four head of cattle from the inclosure of Ross, the prosecuting witness, to that of the defendant. That grand larceny was committed there is no doubt. Four men, including the defendant, were charged with the crime. One pleaded guilty, two have not been tried. During the trial of this defendant a witness testified that he had discovered the tracks of four head of cattle and one horse leading from the Ross field in the direction of defendant’s fields. He followed the tracks. He was asked, “What was your reason for following the tracks?” The question was objected to as calling for incompetent, irrelevant and immaterial testimony — “let him state what he did, not what he concluded,” said counsel for defendant. The ques tion was proper. It frequently is of advantage to inquire into the motives which have induced the actions of a witness. The motive under which he has acted, if shown, often determines the weight to be given to his testimony. It often makes clear that which otherwise would be obscure. The question called for a fact, not a conclusion. The objection being overruled the witness said in part: “We have been losing an awful lot of cattle for the past several years and never got any track of them. I knew that somebody was getting away with them * * ® .” Counsel for defendant moved to strike out the answer because not responsive to the question. The court denied the motion. Whether or not the answer was objectionable its propriety was not called in question by the motion. The answer was responsive and certainly tended to explain why the witness followed the tracks.
3. A Mr. Brader went to the Broadwater ranch on the after- noon of February 13 to see whether he could purchase some beef. Defendant said he would try to furnish Brader a beef upon the next morning; at that time he, defendant, was too drunk to butcher. Defendant said Griffin was out after cattle. Brader testified: “He wanted me to stay there to help kill one and be sure I would get it in the morning. When I left I said to Broadwater: ‘If Griffin is as full as you are I need not expect beef from you in the morning.’ ” This was in the afternoon. Later in the afternoon, it seems, Griffin was engaged in butchering a beef which belonged to Ross, but whether defendant was aware of that fact is not important upon this feature of the case. 'While the butchering was in process the defendant was in the house asleep, in an intoxicated condition. Upon being awakened he was interrogated by the witness Sellers, a state stock inspector, concerning certain hides.
Sellers was asked, “Well, now, did you make any inquiry of the defendant, Harry Broadwater, concerning any hides for beef that he might have been selling in Havre?” Objee tion having been interposed counsel for the state informed the court that the testimony was offered as a part of the res gestae, whereupon the court overruled the objection. And then the witness testified that he asked the defendant where the hides were for the three beeves he had sold in Havre in the last ten days, following with testimony tending to show that the defendant was unable to produce any hide, save one, which could have been taken from an animal butchered within the ten-day period.
We are unable to see how the reception of this testimony can be justified. The crime for which the defendant was on trial was for the larceny of two steers, the property of Ross, and unquestionably the basis of the charge was the asportation of the steers from the Ross field, which took place on or about the 8th of February. It was not asserted that the hides which Sellers was talking about were from any of the Ross cattle.
Spealdng of the phrase, res gestae, “inexact and indefinite in its scope” (Wigmore on Evidence, see. 1767), the supreme court of Missouri in Redmon v. Metropolitan Street Ry. Co., 185 Mo. 1, 105 Am. St. Rep. 558, 84 S. W. 25, observed: “Bes gestae may be defined as those circumstances which are the automatic and undisguised incidents of a particular litigated act, and which are admissible when illustrative of such act — indeed, must be in contemplation of law a part of the act itself. Narratives unconnected with the principal facts are universally rejected.”
Bes gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character. (Stirling v. Buckingham, 46 Conn. 461; Pinney v. Jones, 64 Conn. 545, 42 Am. St. Rep. 209, 30 Atl. 762.)
Ruling Case Law says res gestae include all those facts and circumstances which are incidents or a part of the litigated act, and which are illustrative of such act and in contemplation of law are a part of the act itself. (10 R. C. L. 882.)
The general rule, of course, is that the commission of an act charged against a party may not be proved by showing a like previous act to have been committed by him. (10 R. C. L. 937.)
In State v. Hopkins, 68 Mont. 504, 219 Pac. 1106, we said: “It is the general rule that upon the trial of one accused of crime evidence of a distinct and separate offense is not admissible.” So far as we can determine the state was not attempting to prove a series of larcenies going to make up a course of conduct within the purview of the rule recognized in State v. Wyman, 56 Mont. 600, 186 Pac. 1; State v. Cassill, 70 Mont. 433, 227 Pac. 49, and cases therein cited.
The evidence did not have any relevancy to the particular crime for which the defendant was upon trial. It simply tended to show that the defendant had violated the statute which provides that every person slaughtering cattle must keep the hides, with the ears attached, for ten days, and must upon demand exhibit the hides for examination. (See. 3346, Rev. Codes 1921.) The reception of this evidence may have been one of the reasons why the court granted the motion for a new trial. Be that as it may, after an examination of the evidence in the case we say without hesitation that the trial court was clearly within its proper province when it sustained the motion for a new trial.
The order is affirmed.
'Affirmed.
Associate Justices Holloway, Galen, Stark and Matthews concur.
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] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
On September 28, 1925, the county attorney of Lewis and Clark county filed in the district court of said county an information charging that—
“On or about the 23d day of August, 1924, # * * Phil Atlas did willfully, unlawfully, and feloniously take, use, and operate on a public highway a certain automobile * * * of the value of more than $5,000 * * * without the consent of the * * * owner, Louis Heitman,” etc.
The ease was set for trial for October 22, 1925, at which time defendant appeared with his counsel, and, before his plea was entered or any proceedings were had in the case, demurred to the information and moved a dismissal on the ground that it appeared from the face of the information that more than one year elapsed between the time of the alleged offense and the filing of the information, and that therefore the statute of limitations had run. On the grounds urged the court sustained both the demurrer and the motion, and its ruling was duly entered in the minutes of the court, followed by the further order:
“The information is dismissed, and the defendant is discharged and his bondsmen exonerated.”
•The State thereafter gave notice of appeal, which notice reads in part as follows:
“You and each of you will please take notice that the state of Montana * * * appeals from that certain order herein, * * * which said order is in words and figures following: * =» * .[setting out the order referred to above.]”
1. The defendant has moved to dismiss the appeal upon the ground that “the attempted appeal is not taken by the state from a judgment for the defendant, nor from any order from which an appeal may be taken.”
Defendant relies upon the decision in State v. Nilan, ante, p. 397, 243 Pac. 1081. In that case this court declared: “The record on appeal in a criminal case, says the statute, shall consist of the judgment-roll as defined in section 12074 of the Code, a copy of the notice of appeal, and all bills of exception settled and filed in the case,” etc.
Section 11901, Revised Codes of 1921, reads as follows: “Upon considering the demurrer, the court must give judgment, either allowing or disallowing it, and an order to that effect must be entered upon the minutes.”
In the Nilan Case we pointed out that, by reason of the particular requirements of this section and those contained in section 12110, two acts are required, (1) giving judgment, and (2) entering the same in the minutes; and the order sustaining the demurrer constitutes the judgment. In that case the state failed to include in the record the minute entry, and therefore failed to show that the requirements of section 11901 had been complied with. For this reason the motion to dismiss in that case was sustained. Here the state did not transgress in this particular; the transcript contains the minute entry of the order allowing the demurrer, and therefore contains “a copy of the judgment.” The motion to dismiss is therefore overruled.
2. The only question raised on the merits is: Where a single offense which cannot be divided into degrees and does not include any lesser offense is punishable either as a misdemeanor or a felony, in the discretion of a court or jury, and the statute of limitations for misdemeanors has run prior to the filing of the information, can the statute be successfully invoked as a bar to the prosecution?
The information herein is based on the provisions of section 11478, Revised Codes of 1921. Prior to 1919 the statute on the subject declared that any person committing such an offense, “is guilty of a misdemeanor,” and was punishable by fine or imprisonment in the county jail (Chap. 27, Laws 1915); but by Chapter 91, Laws of 1919, the legislature amended that Act by eliminating the phrase, “is guilty of a misdemeanor,” and adding to the provision fixing the punishment which may be imposed the clause, “or by imprisonment in the state prison not exceeding five years.” The Act, as amended, has been included in the Revised Codes of 1921 as section 11478.
The statutes of limitations in criminal actions which we are called upon to consider are found in sections 11723 and 11724, Revised Codes of 1921, which provide that while an information for a felony, other than murder or manslaughter, may be filed at any time within five years after the commission of the offense charged, an information for a misdemeanor must be filed within one year after the commission of the offense charged.
Section 10723 declares that “a felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor.” This section further provides that “when a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court or jury, it is a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.”
Under similar provisions in that state, the supreme court of California, in People v. Gray, 137 Cal. 268, 70 Pac. 20, held that their Penal Code, section 801, fixing the limitation for the filing of an information in a misdemeanor case, applied to an information which charged the commission of an offense punishable by either imprisonment in the county jail or in the state prison.
The learned trial judge doubtless fell into error in this case by reason of having the holding in the California case called to his attention. The supreme court of California reached its erroneous conclusion by its failure to distinguish between those statutes making certain offenses punishable as felonies, but in which offenses lower grades or degrees of crime are included, and those statutes defining a single offense, without grades or degrees, but providing punishment therefor either as a misdemeanor or a felony, within the discretion of the court or jury.
Counsel for defendants have also failed to recognize this distinction, and in support of their contention here, as they doubtless did before the trial court, cite authorities to the effect that where a charge of felony includes an offense of the grade of a misdemeanor, the bar of the statute of limitations cannot be evaded by charging the defendant with a felony and then convicting him of the lesser offense. (8 R. C. L. 133; People v. Picetti, 124 Cal. 361, 57 Pac. 156; People v. Gray, above.)
Since the trial court’s decision herein, California, recognizing its error, has. expressly overruled People v. Gray, pointing out the distinction between that case, where, as in the case before us, the acts charged constituted but a single offense, and People v. Picetti, wherein the rule last quoted applied, and in which the defendant, though charged with grand larceny, was in fact guilty only of petit larceny. (Doble v. Superior Court (Cal. Sup.), 241 Pac. 852. This distinction is clear; felonies and misdemeanors are distinct grades of crime, and their boundaries must be defined by law; the line of demarcation is fixed by the nature of the punishment which may be imposed on conviction, and “it is not the actual sentence but the possible one that determines the grade of the offense.” (People v. Hughes, 137 N. Y. 29, 32 N. E. 1105.) Certain acts may constitute either one or the other of two or more crimes, as in the ease of larceny or assault, but in such cases the acts alleged do not constitute a single crime, which may be either a felony or a misdemeanor, but distinct crimes, one of which is a felony and the other a misdemeanor, depending, not on the discretion of the court, but upon the fact conditions shown to exist. Thus in People v. Picetti, above, the defendant was shown to be guilty of petit larceny, which showing proved that he was never properly chargeable with grand larceny; hence the application of the rule. On the other hand, where a single act or a series of acts constitutes a single offense, that offense must be the one thing or the other; either it is a felony or it is a misdemeanor; “it cannot be both, or either.” (State v. Waller, 43 Ark. 381; Smith v. State, 33 Me. 48, 54 Am. Dec. 607; Ingram v. State, 7 Mo. 293; Bishop’s Statutory Crimes, sec. 174.)
The determination as to whether a given offense shall be defined as a felony or as a misdemeanor rests with the legislature, and, on such declaration, that body has the right, after declaring a certain offense to be a felony, or after fixing punishment which brands the offense as that grade of crime, to provide alternate punishments of such nature as apply ordinarily to misdemeanors, to be imposed in the discretion of the court; but this discretion to mitigate the punishment, after conviction, does not alter the nature of the crime of which the defendant has been duly convicted. (State v. Waller, above; In re Stevens, 52 Kan. 56, 34 Pac. 459; State v. Harr, 38 W. Va. 58, 17 S. W. 794; Johnston v. State, 7 Mo. 183; People v. Lyon, 99 N. Y. 210, 1 N. E. 673.)
Prior to the amendment, of 1919, noted above, the offense here charged w;as a misdemeanor, its grade was fixed by the punishment prescribed, and the statute expressly declared that one committing such an offense “is guilty of a misdemeanor”; but by striking out that declaration and providing that imprisonment in the state prison may be inflicted as a punishment, the legislature changed the crime described to a felony.
The general rule is that the infliction of the permissible lesser punishment does not reduce a felony punishable either by imprisonment in the state prison or by fine or imprisonment in a county jail to a grade of a misdemeanor; it is nevertheless a felony for all purposes both before and after judgment (State v. Melton, 117 Mo. 618, 23 S. W. 889, and cases therein cited); but by section 10723 above, this general rule is modified by the declaration that, ‘ ‘ after the imposition of a punishment other than imprisonment in the state prison it is a misdemeanor for all purposes.” In other words, after the court has exercised its discretion by the mitigation of the punishment inflicted, any disability imposed- by reason of the conviction of a crime shall be measured as for a conviction of a misdemeanor and not a felony, and any proceedings had after judgment must be based upon such a conviction. The judgment, however, cannot be retroactive, and by its mere entry destroy a valid conviction on evidence which would not vary an iota to warrant the infliction of the greater punishment.
The supreme court of California had before it an identical statute in the case of Doble v. Superior Court, above, and therein construed the statute to mean that “the charge stands as a felony for every purpose up to judgment, and if the judgment be felonious, in that event, it is a felony after as well as before judgment; but if the judgment is for a mis demeanor it is deemed a misdemeanor for all purposes thereafter — the judgment not to have a retroactive effect so far as the statute of limitations is concerned.” This interpretation is logical and expresses the evident intent of the legislature.
That the statute of limitations has run against the acts complained of is a defense which must be taken advantage of before conviction, and not after, and the statute goes no further than to provide that the offense shall be a misdemeanor after conviction and sentence. It would be an anomalous situation, which the legislature certainly did not intend to create, if, after overruling a demurrer to an information charging such a crime as that under consideration, and the subsequent conviction of the defendant, the court must either sentence the guilty party to a term in the penitentiary or permit him to go unwhipped of justice. Such a construction of the statute would render it an instrument of injustice either against the justly convicted petty malefactor or against the public.
It is therefore apparent that the limitation expressed in section 11723, above, is the only limitation applicable to the crime here charged, and that the trial court erred in sustaining the demurrer and- motion based upon the provisions of section 11724.
The judgment appealed from is reversed and the cause remanded to the district court of Lewis and Clark county, with direction to overrule the demurrer to the information and to deny the motion to dismiss the action.
Reversed and remanded.
M!r. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.
|
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] |
JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from summary judgment granted by the District Court of the Eleventh Judicial District, County of Flathead, the Honorable Michael H. Keedy presiding. Appellant John A. Lence (Lence) sued the respondents (collectively, Inter Lake) in June 1989 for damages arising from libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligence. Inter Lake answered Lence’s complaint in July 1989, and in July 1990 filed a motion for summary judgment. In January 1992 the court issued a memorandum and order granting the motion, and Lence appealed. We affirm.
Lence’s claims are based on three articles published in the Daily Inter Lake in November 1988 and April 1989, on two unrelated matters. Lence included all three articles in his complaint, and all three are considered here.
The 1988 Article
On November 30,1988, the Daily Inter Lake published an article, under the heading “Lawyer-client dispute probed,” reporting that the Montana Supreme Court’s Commission on Practice was looking into “allegations of fraud and professional misconduct on the part of Kalispell attorney John A. Lence.” The article stated that local building contractor L. Craig Semenza (Semenza) had filed a complaint against Lence with the “high court,” alleging fraud, professional misconduct, and failure to pay $67,511 for Semenza’s work remodelling Lence’s office.
The article also stated that Semenza had been charged in September 1988 with criminal mischief after someone flooded Lence’s offices with a garden hose inserted through a hole drilled in the ceiling; that the county attorney was dropping this charge against Semenza because of insufficient evidence; that Lence had handled legal matters for Semenza’s contracting business; and that Semenza had fired Lence and wanted to bring a theft charge against him because he had refused to give Semenza access to his corporate records.
Lence’s attorney, Alan Lerner, wrote to the Daily Inter Lake demanding a retraction. Mr. Lerner’s letter identified the portions of the article that Lence considered defamatory and included statements describing the “true facts.” Inter Lake published these statements on December 11, 1988, under the heading “Attorney takes exception to DIL [Daily Inter Lake] story.”
Lence objected particularly to the second paragraph of the article, which stated that Semenza had filed his complaint with “the high court.” In reality, of course, Semenza had filed his complaint with the Commission on Practice (Commission). Under the Montana Supreme Court Rules for Lawyer Disciplinary Enforcement, only the Commission may file a formal complaint against a lawyer.
When the author of the 1988 article, respondent Jacqueline Adams (Adams), spoke with Semenza, the proceedings before the Commission were confidential, pursuant to Rule 13 of the Rules for Lawyer Disciplinary Enforcement, because no formal complaint had been filed. But because Semenza approached Adams with the information and gave her a copy of this complaint, he, not she, violated the rule of confidentiality. The 1988 article was defamatory, Lence argues, because:
The Daily Inter Lake’s use of the words “high court” falsely informed all other attorneys reading the story that there was credible evidence to support the conclusion that [Lence] had committed fraud and was guilty of professional misconduct.
Lence complained that Adams had published the story without giving Lence an opportunity to comment and without investigating Semenza’s allegations. Adams acknowledged these omissions in her deposition and stated:
The story was based on the complaint filed with the Commission on Practice. And just as I would not contact people named in a civil suit about their part in it, I would not contact those named in a complaint to the Commission on Practice. It’s not my job to determine who’s calling who names and who’s right.
Lence also objected to the article’s failure to state that charges against Semenza, for flooding Lence’s office, were to be dropped without prejudice. According to Lence, this omission implied that the county attorney had found no evidence against Semenza. In reality, he says, the county attorney “was not convinced of Semenza’s innocence but needed time to obtain more evidence.”
Adams admitted in her deposition that she knew before the article was published that charges against Semenza had been dropped without prejudice, and she agreed that the article would have been slightly less favorable to Semenza had she included and explained the phrase “without prejudice.” She did not do that, she said, because “the deadline was at hand” when she learned of the dismissal, and because she expected to write another story later, “when the actual matter came into court.”
On April 3,1989 the Commission notified Semenza, with a copy to Lence, that it had reviewed his complaint against Lence and found no ethical violation or breach of the Rules of Professional Conduct. The 1989 Articles
On April 4, 1989 Inter Lake published a short article about a Kalispell Board of Appeals hearing on a building permit for “the Main Street offices of attorney John Lence.” The article stated that the city judge had issued a summons to Lence, “who is charged with violating city codes by constructing openings in walls where they were prohibited.” Lence had installed windows in the north side of the building, which was on the property line, after city officials had informed him that placing windows on the property line would violate the Uniform Building Code.
On April 9,1989, the newspaper reported that Lence had pleaded innocent to the misdemeanor charge of violating the city building code and that the Kalispell Board of Appeals had approved a no-construction easement from the adjoining property owner, which satisfied the building code’s open space requirement for buildings with windows.
At Lence’s request, the newspaper printed an item in its “Corrections” column on April 20, 1989, stating that “GKL,” a Montana corporation, not Lence, had been charged with a building code violation and explaining that Lence was the president of GKL and his wife, Gwendolyn K. Lence, was the secretary.
Lence argues that the “sting” of these stories was “not that a violation had been alleged, but rather that [Lence], an attorney, had personally violated the law,” and that Inter Lake should have known that the court files on the building code violation showed that GKL, not Lence, was the defendant.
In his deposition, however, Lence stated that GKL Corporation was merely a holding company created for the purpose of holding title to the building and that his wife was the sole stockholder. Lence appeared before the city judge on behalf of the corporation, and in their correspondence on this matter, both Lence and the city officials referred to the building as Lence’s building.
The following issues are presented for review.
1. Whether, in light of Article II, section 7 of the Montana Constitution, the District Court erred in granting summary judgment.
2. Whether the First Amendment protects newspaper articles about a preliminary investigation of alleged attorney misconduct and an alleged violation of a city building code.
3. Whether the articles are privileged, under § 27-1-804(4), MCA, as fair and true reports, without malice, of official proceedings.
4. Whether the District Court erred in dismissing Lence’s claim for false light invasion of privacy.
5. Whether Lence’s emotional distress claim duplicates his defamation claim.
6. Whether Lence’s negligence claim is barred as a restatement of the fault element of his defamation claim.
I
Did the District Court err in granting summary judgment?
Lence contends that in granting summary judgment the District Court erred by deciding genuine issues of material fact; by failing to view the evidence in a light most favorable to the opposing party; and by failing to consider Article II, section 7 of the Montana Constitution, which provides, in part, that:
In all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and the jury, under the direction of the court, shall determine the law and the facts.
Lence’s “genuine issues of material fact” are discussed below in the context of the remaining issues. The procedural issue —jury determination of law and facts in a libel case — was disposed of by this Court in Griffin v. Opinion Publishing Co. (1943), 114 Mont. 502, 138 P.2d 580, which held that it is for the court and not the jury to pass on motions for nonsuit, directed verdict, new trial, and so on, and in Williams v. Pasma (1982), 202 Mont. 66, 72, 656 P.2d 212, 215, which cited Griffin to support the proposition that “there is no absolute prohibition against granting summary judgment in libel cases.” In libel cases as in other civil cases, summary judgment is appropriate when there are no material issues of fact and the evidence supports the judgment as a matter of law. Kurth v. Great Falls Tribune Co. (1991), 246 Mont. 407, 804 P.2d 393; Rule 56(c), M.R.Civ.P.
As we decide here that there are no material issues of fact and that Inter Lake is entitled to judgment as a matter of law, we conclude that the District Court did not err in granting summary judgment.
II
Does the First Amendment protect the Daily Inter Lake articles?
In holding that Inter Lake’s report of Semenza’s complaint to the Commission is protected by a qualified constitutional privilege, the District Court relied on Landmark Communications, Inc. v. Virginia (1978), 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1.
In Landmark, the defendant newspaper published an article identifying a judge who was under investigation by the Virginia Judicial Inquiry and Review Commission. Like Montana’s Rules for Lawyer Disciplinary Enforcement (Rules), the Virginia statute requires confidentiality of the investigation until a formal complaint is filed with the Virginia Supreme Court. Unlike Montana’s Rules, the Virginia statute makes violation of the confidentiality rule a misdemeanor. The Virginia Supreme Court found the newspaper criminally hable, but the United States Supreme Court reversed, holding that the First Amendment does not permit criminal punishment of third parties, including the news media, for publishing truthful information about confidential proceedings of the Judicial Inquiry and Review Commission.
Lence contends that the District Court’s reliance on Landmark is misplaced because the Virginia statute imposed criminal penalties; the case involved a public official and a matter of “the most urgent governmental importance;” and the holding was expressly limited to the publication of truthful information. In contrast, Lence argues, the present case is a civil action brought by a private citizen and is, in Lence’s view, “a private dispute without social or political significance.”
By the time Landmark was decided, however, the Supreme Court had extended First Amendment protection to publications about private citizens. Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Both Gertz and Landmark are descendants of the seminal First Amendment case, New York Times v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, but Sullivan, like Landmark, involved alleged defamation of a public official. In Gertz, the plaintiff was an attorney described in a magazine published by the defendant as, among other things, a “Leninist” and “Communist-fronter.” No evidence supported these allegations. The Supreme Court held that states have a legitimate interest in compensating private individuals for the harm inflicted on them by defamatory falsehood; therefore, states may define an “appropriate standard of liability for a publisher of defamatory falsehoods,” so long as they do not impose liability without fault. Gertz, 418 U.S. at 347, 94 S.Ct. at 3011. See Madison v. Yunker (1978), 180 Mont. 54, 589 P.2d 126 (following Gertz in establishing the standard of liability for defamation of a private person).
In Landmark, the Supreme Court held unequivocally that the newspaper’s publication of accurate factual information about an inquiry pending before the Judicial Inquiry and Review Commission “served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect.” Landmark, 435 U.S. at 434, 98 S.Ct. at 1148. In Landmark and again in two cases involving private plaintiffs, the Court balanced these First Amendment interests against the interests served by preserving confidentiality and found that the latter were not sufficient to justify the subsequent punishment of speech.
Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399, ruled unconstitutional a West Virginia statute making it a crime for a newspaper to publish truthful information concerning the identity of juvenile offenders. The Florida Star v. B.J.F. (1989), 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443, held that where a newspaper had obtained a rape victim’s name from a police report distributed to the press, a Florida statute making publication of the victim’s name unlawful was unconstitutional. “[WJhere a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed, if at all, only when narrowly tailored to a state interest of the highest order.” The Florida Star, 491 U.S. at 541, 109 S.Ct. at 2613.
If the public’s interest in the dissemination of truth outweighs the state’s interest in protecting the privacy of rape victims or juvenile offenders, then surely the public’s interest in accurate information about attorney discipline outweighs the state’s interest in preserving the confidentiality of Commission on Practice investigations, where, as here, the press obtained the information lawfully. Thus, Lence cannot recover unless he can establish that the published information was false. “A private-figure plaintiff must bear the burden of showing that the speech at issue is false before recovering damages for defamation from a media defendant.” Philadelphia Newspapers, Inc. v. Hepps (1985), 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783, 793.
Lence contends that the published information in this case was neither truthful nor accurate and that the “irresponsible publication of false information is not privileged communication protected by the First Amendment.” By “false information,” he means the 1988 article’s reference to the “high court” instead of the Commission on Practice; its failure to state that charges against Semenza had been dropped without prejudice; the implication that Lence had been charged with theft; and in the 1989 articles, the attribution of the building code violation to Lence instead of the GKL corporation. The evidence is sufficient, Lence argues, for a jury to conclude that these errors were not inconsequential or insignificant but instead were “gross distortions of the truth.”
The District Court concluded, however, that the cited errors were inconsequential and that the articles were substantially true. The 1988 article did not allege that Lence had actually committed acts of fraud, professional misconduct and theft, but merely reported accurately that Semenza had filed a complaint alleging such acts, and that police records indicated that Semenza had told the police he wanted to bring a theft charge against Lence. Similarly, the 1989 articles were substantially true because the acts on which the misdemeanor building code violations were based were the personal acts of Lence, not his corporation, and because Lence himself consistently treated his personal interests as identical to those of the GKL corporation.
We conclude that Lence failed to meet his threshold burden of establishing the falsity of the Daily Inter Lake articles. The articles, therefore, are protected by the First Amendment as truthful information about a matter of public significance.
Ill
Does the fair and true report privilege protect the Daily Inter Lake articles?
Libel is a false and unprivileged publication. Section 27-1-802, MCA (emphasis added). If the publication appears to be privileged, the plaintiff must show that it is false. Cooper v. Romney (1914), 49 Mont. 119, 128, 141 P. 289, 292. Section 27-1-804, MCA, provides that for purposes of a defamation action, a “privileged publication” is one made in the proper discharge of an official duty, in any legislative or judicial proceeding, or:
(4) by a fair and true report without malice of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.
The District Court concluded that under this statute, the Daily Inter Lake articles were privileged and therefore not defamatory.
Whether a publication is privileged is a question of law for the court, where there is no dispute about the content of the proceedings on which the publication is based. Rasmussen v. Bennett (1987), 228 Mont. 106, 110, 741 P.2d 755, 758; Crane v. Arizona Republic (C.D. Cal. 1989), 729 F.Supp. 698, 702. Our review of this issue is confined to determining whether the District Court’s interpretation of the law is correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
We hold that the District Court concluded correctly that a preliminary Commission on Practice investigation is part of a judicial proceeding, and that the 1988 Daily Inter Lake article therefore was privileged. See Cox v. Lee Enterprises, Inc. (1986), 222 Mont. 527, 529, 723 P.2d 238, 240 (“judicial proceeding” defined to include, for example, “any proceeding to obtain such remedy as the law allows”). The 1989 articles, which described Lence’s alleged violations of the Kalispell building code, clearly were privileged under § 27-1-804(4), MCA.
As Lence presented no evidence showing that the articles were false, and all three were privileged as a matter of law, Inter Lake was entitled to summary judgment.
IV
Did the District Court err in declining to recognize Lence’s claim of false light invasion of privacy?
False light invasion of privacy is (1) the publicizing of a matter concerning another that (2) places the other before the public in a false light, when (3) the false light in which the other is placed would be highly offensive to a reasonable person, and (4) the actor knew of or acted in reckless disregard as to the falsity of the publicized matter. Restatement (Second) of Torts § 652E (1977).
Here, Lence has no legitimate claim for false light invasion of privacy because he failed to establish the falsity of the Daily Inter Lake articles. See Restatement (Second) of Torts § 652E, comment a (“it is essential to the rule stated in this Section that the matter published concerning the plaintiff is not true”).
V
Did the District Court err in holding that Lence’s emotional distress claims fail?
The District Court held that Lence could not recover for emotional distress because the Daily Inter Lake statements were substantially true and without malice. Citing Hustler Magazine v. Falwell (1988), 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41, the court concluded that emotional distress claims are subject to the same First Amendment defenses as the libel suit. Because the plaintiff in Falwell was a public figure, subject to an “actual malice” standard, while Lence is a private person, we affirm on this issue for different reasons.
This Court has adopted the requirements for recovering damages for infliction of emotional distress that are set out in Restatement (Second) of Torts § 46 Comment j (1965). First Bank v. Clark (1989), 236 Mont. 195, 771 R2d 84. The victim must show that the defendant’s tortious conduct resulted either in physical or mental injury or in “a substantial invasion of a legally protected interest,” and that it “caused a significant impact,” including emotional distress “so severe that no reasonable person could be expected to endure it.” Clark, 771 P.2d at 91.
Lence argues that “untrue charges of fraud, professional misconduct, theft and crime” are “sufficiently outrageous” to sustain a cause of action for severe emotional distress, but he offers no evidence of severe emotional distress. In his deposition he described a visit to a hospital emergency room approximately two weeks after the 1988 article was published, for “stress and heart-related problems and circulatory problems” that he had not had previously. The only other evidence of distress or “significant impact” is Lence’s statement that he missed a meeting of a client’s board of directors on the day after the 1988 article appeared.
Even if Lence could legitimately plead emotional distress, the Daily Inter Lake articles would have had to be more than merely hurtful or offensive; they would have had to be “so outrageous ... as to go beyond all possible bounds of decency.” Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123, 760 P.2d 57, 64. The newspaper’s truthful publication that Semenza had lodged a complaint with the Commission, and its report of the building code dispute, hardly constitute outrageous conduct that goes beyond all possible bounds of decency.
In the past we have characterized emotional distress as an element of damages rather than a distinct cause of action; see Frigon, 233 Mont. 113, 760 P.2d at 63; Shiplet v. First Security Bank (1988), 234 Mont. 166, 174, 762 P.2d 242, 247. Even if considered only for the purpose of establishing damages, however, Lence’s deposition testimony demonstrates the absence of any genuine issue of material fact concerning the severity of his alleged emotional distress.
VI
Was Lence’s negligence claim barred as a restatement of the fault element of his defamation claim?
Lence argues that the District Court erred in dismissing his negligence claim because “the facts of this case present a separate and distinct cause of action for negligence.” He claims that Inter Lake was under a duty to investigate Semenza’s allegations before repeating them to the public, that Inter Lake owed Lence a duty of care in their choice of words describing the status of Semenza’s complaint, and that Inter Lake owed Lence a duty of confidentiality under Rule 13C, Montana Supreme Court Rules for Lawyer Disciplinary Enforcement. By disseminating. Semenza’s allegations without investigation, Lence argues, Inter Lake breached not only its duties to Lence but also its direct duty to keep information about a Commission investigation confidential.
As a result of Inter Lake’s breach of duty, Lence claims, he has suffered damage to his reputation and business and “extreme emo tional harm, humiliation, and physical stress which led to a doctor’s visit.” The First Amendment does not protect a media defendant from suits that can be brought generally under common law theories of liability, Lence argues, citing Cohen v. Cowles Co. (1991), _U.S._, 111 S.Ct. 2513, 2518, 115 L.Ed.2d 586, 597 (a newspaper publisher “has no special privilege to invade the rights and liberties of others”). Thus, Lence contends, he has a right to present his negligence theory of liability to a jury.
The District Court dismissed Lence’s negligence claim on the grounds that it “merely reiterates the fault element of the libel claim.” We hold that Lence’s negligence claim fails even if it is considered independently of his libel claim.
To prevail in a negligence action, a plaintiff must prove the following elements: a duty owing from the defendant to himself; a breach of that duty; proximate causation; and damages. Scott v. Robson (1979), 182 Mont. 528, 535-536, 597 P.2d 1150, 1154. Here, Inter Lake owed no duty to Lence to investigate or to keep the Commission investigation confidential. Semenza’s allegations, after all, had been made to a body authorized to investigate them. Adams’ role was merely to let the public know that an investigation had been initiated, not to undertake an investigation herself.
It is clear that Rule 13D, Montana Supreme Court Rules for Lawyer Disciplinary Enforcement, imposed a duty on Semenza, because it unequivocally requires “participants” in a disciplinary proceeding to “conduct themselves so as to maintain the confidentiality mandated by this rule.” Semenza violated this rule when he approached Adams with the information and gave her a copy of his complaint, but Adams committed no wrong in receiving the information. Further, the rule does not apply to an accurate republication of Semenza’s allegations. First, as we have seen, the 1988 Daily Inter Lake article is privileged under § 27-1-804(4), MCA. See also Dameron v. Washington Magazine, Inc. (D.C. Cir. 1985), 779 F.2d 736 (in a libel action brought by an air traffic controller against The Washingtonian, the court held that republication of a defamation uttered by another is immune when it is a fair and accurate report of official proceedings); Law Firm of Daniel P. Foster v. Turner Broadcasting System, Inc. (2nd Cir. 1988), 844 F.2d 955 (dismissing a libel action on the grounds that CNN’s broadcast of statements made by FBI officials was substantially accurate and therefore privileged under the state’s fair and true report statute).
Second, our constitution gives a high priority to the public’s right to know. It can be abridged only when “the demand of individual privacy clearly exceeds the merits of public disclosure.” Art. 2, § 9, Mont. Const. See Great Falls Tribune Co., Inc. v. Cascade County Sheriff (1989), 238 Mont. 103, 775 P.2d 1267 (when law enforcement officers have engaged in conduct that subjects them to disciplinary action, the public’s right to know outweighs law enforcement officers’ privacy interests). Here, the merits of disclosing that an attorney has been accused of misconduct clearly outweigh the demand of individual privacy, when the misconduct is presented as a mere allegation by a person whose motivation and probable unreliability are adequately conveyed in the publication.
As Inter Lake owed no duty to Lence, it is entitled to judgment on Lence’s negligence claim as a matter of law.
Affirmed on all issues.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, McDONOUGH and WEBER concur.
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] |
MR. JUSTICE SMITH
delivered the opinion of the court.
The complaint in this action alleges that on or about the tenth day of January, 1911, the plaintiff sold and delivered to the defendant at his special instance and request certain stock cattle at an agreed price of $375; that the defendant has not paid the amount or any part thereof. The answer denies each and every allegation of the complaint. The district court of Gallatin county tried the cause without a jury, and, after making findings of fact and drawing conclusions of law in writing, entered judgment for the plaintiff in accordance with the prayer of the complaint. Defendant appeals from the judgment and from an order refusing to grant a new trial.
It appears that on January 10, 1911, a so-called “combination sale” of livestock was held at a ranch in Gallatin county about five miles from the city of Bozeman. At this sale the defendant purchased fourteen head of cattle at an agreed price of $375. The advertised terms of sale were: “Ten months will be given on bankable note. Interest at 8% from date.” The sale was held in the name of one Stucky, but the cattle purchased by the defendant were the property of plaintiff. After the defendant had bid in the fourteen head of cattle, he went to plaintiff, and said: “I gave my note to Mr. Overstreet [the clerk of the auction sale] signed by myself; that note is good, isn’t it?” Plaintiff replied: “I don’t know. If it is bankable, it is.” Defendant then said: “If I get Frank [his brother] to sign it with me, that will make it bankable.” And plaintiff answered: “I don’t know; but, if not, you will have to see that a note is given to me that is bankable.” Defendant then remarked, “I will leave the stuff here until I give you a bankable note”; and plaintiff “told him to take the stuff away if he would make it bankable”; and further said: “I am coming to town to-morrow and we will fix it up.” Plaintiff also testified: “He had already made out a note to John Stucky. Mr. Overstreet had that and Mr. Overstreet made out another one to me. I took them to town with me, and took them to the butcher-shop. The old note he tore up, and I said, ‘You take this new note, and have Frank sign it with yon.’ He said, ‘All right.’ When I went back after the note, he said Frank wouldn’t sign it. He said he would pay me for what cattle he had butchered, and I could take the rest back, or else take his note. I said I' didn’t want to do that, that we had gone to the expense of an auction sale, that he bought the cattle, and ‘all I expect you to do is to settle for them in accordance with the terms of the sale.’ He said the note was good, that I could sign it, that his name and mine would make it good, and I could get the money any place. I said I didn’t figure I had to make it good. I wanted a good note without my signature; that his signature alone I could not get rid of at the bank. After this sale — the day before — and prior to this conversation with defendant, I went to the Commercial National Bank, and asked Mr. Cox, the cashier, if Seth Bohart with Frank signing with him on a note would be good, and he said for any reasonable amount, and I said, ‘For $875?’ and he said, ‘Yes.’ He said Seth’s name alone wouldn’t be good. He wouldn’t consider it so. But he said that S. E. Bohart was not doing business at that bank, and he wasn’t in very good touch with him. I afterward went to the National Bank of Gallatin Valley, and asked Mr. Brown, the cashier. He said he wasn’t cashing paper; that it wasn’t buying paper. He said that he wasn’t buying paper, that he would not buy that paper, Mr. Bohart’s note. I was willing to take this note at any time some person would take it off my hands. What I wanted was the money.” The conversations with Cox and Brown were objected to as hearsay. Not any claim is made that there are any other banks in Bozeman.
John F. Collett testified: “I had a conversation with Bohart on the 15th of January about settlement. I said: ‘We came down to see about the note.’ ‘Well, ’ he said, ‘I supposed that sale was over.’ I said: ‘Part of it is over and part of it is not.’ He said: ‘The note is in here. You can have it. I can’t get any other signer on it. You can sign it if you want to. ’ At the sale it was annoimced that there was no discount for cash.” After motion for a nonsuit overruled, the defendant testified: “I said to Pasha after the sale: ‘It seems to me yon do not want to let these cattle go on that note. 'What do you mean about it ? ’ He said something about wanting a signer with me. I said: ‘I don’t know anyone on these grounds who would sign a note with me, or Whom I could ask to sign with me. If you don’t consider it good, I will leave the cattle here. ’ He said: ‘ I want a good piece of paper.’ I said: ‘Would Frank’s name be good on that note?’ and I think he said, ‘Yes.’ Two or three days later I saw him in town, and I said, ‘I will sign the blank note if you want me to.’ I signed the note and he said, ‘Will you get Frank to sign that note with you?’ and I said, ‘I will go over and ask him.’ Frank refused to sign the note, and Pasha would not accept it. He left it lying on the desk. I have been doing business in this county for five years. During that time I have borrowed money at the local banks on my note, without indorser or security. I have purchased cattle at sales, and have given notes in payment without security. I have paid all of these notes through the local banks except one. I considered that note I had signed a bankable note when I signed it and gave it to Mr. Pasha. It is true that Mr. Patten has a note given by me at a sale due last October that has not been paid. I wouldn’t say I did not have a conversation with'David E. Anderson on the morning of January 11,1911, at my slaughter-house, in which I stated to him that I was expecting Mr. Pasha down there; that he wouldn’t accept my note; that he claimed it'wasn’t a bankable note; and that I was going to kill the cheaper stuff and pay for it, and Pasha could take the higher priced stuff back. I might have said it. I killed eight of the fourteen cattle the next day. The ones I killed cost less per head than the others. I mean to say positively that I told Mr. Pasha that, unless he would take my individual note, I wouldn’t take the stock. I do not want you to understand that he understood my individual note would be sufficient. I said I would try to get Frank to sign it with me. I understood that the note was acceptable with my individual name.”
The court made findings, among others, as follows:
“(5) That after John Stucky informed defendant that said cattle belonged to plaintiff, and before defendant took possession of said cattle, plaintiff stated to defendant that, to obtain the credit offered at said sale, defendant must execute and deliver to plaintiff a promissory note, with surety or sureties if necessary, so that such note would be purchased by the banks at Boze-man, Montana.
“(6) That plaintiff unconditionally delivered the possession of said stock cattle purchased by defendant at said sale upon defendant’s promise that he would execute and deliver to plaintiff a promissory note, with surety or sureties if necessary, so that such note would be purchased by the banks at Boseman, Montana.
“(7) That the promissory note signed by defendant individually which defendant offered to plaintiff in payment for said cattle was not a bankable note, as that term was understood by the parties at the sale, and did not comply with the promise under which defendant had obtained the possession of said cattle from plaintiff.
“(8) That defendant has failed and refused to execute and deliver to plaintiff a bankable note as that term was understood by the parties at said sale in payment for said cattle, and has not complied with the promise under which he obtained possession of said cattle from plaintiff.”
1. Every question of fact in the case must be considered as having been resolved in favor of the plaintiff, and his version of the conversations had between the parties must be accepted. Therefore, we must presume that the title to the cattle passed to the defendant at the time of the sale, and that the agreement was that he should have ten months in which to pay for the same, provided he could furnish a bankable note for the amount of the purchase price, and not otherwise. “"When credit is given for the price of goods sold on the condition that the purchaser’s note, with surety, be given therefor, and this condition is not complied with, but the property is taken by the purchaser, he is liable for the price at once, and before the expiration of the proposed term of credit.” (Wheeler v. Harrah. 14 Or. 325, 12 Pac. 500; Corlies v. Gardner, 2 Hall (N. Y.), 374.)
It is quite evident from all of the testimony in the instant ease that the parties contemplated something more than that the defendant should give his own promissory note unconditionally. The condition was that the note should be bankable either because of the individual responsibility of the maker or of comakers or indorsers. Had they intended otherwise, the word “bankable” would not have been employed in the advertisement of the sale. The defendant knew this before he took the cattle away. He was so informed, not only by the printed notice of sale, but by the plaintiff himself. He was told that the note tendered by him would not be accepted unless it was bankable paper, and he undertook to comply with the condition. What is the meaning of the word “bankable” in this particular instance? All of the facts and circumstances surrounding the transaction are to be taken into consideration in answering the inquiry. The plaintiff desired to sell his cattle. No discount for cash was to be allowed. Why? Manifestly because it was intended that the cattle should be sold for cash, or its equivalent. The bankable notes, if any were taken, were to be convertible into cash without recourse to the personal responsibility of the individual to whom they were given; that is, the payee or seller of the cattle. It is altogether unreasonable to suppose that the paper was to be made bankable by virtue of the indorsement of the person whose aim was to sell his property for cash.
Was the defendant’s individual note bankable? He tacitly admitted that it was not, by his acts and words: (a) He asked Pasha if his note was good, (b) He offered to get his brother to sign it with him in order to make it bankable, (c) After having tendered one note signed by himself alone, he offered to leave the cattle at the ranch until he gave a bankable note, (d) He admitted that his own brother refused to take the responsibility of signing a note with him. (e) He offered to pay for the cattle already butchered and return the others. (f) He told Pasba that their joint signatures would make the note good, (g) He confessed to Collett that no one would sign the note with him. (h) He admitted that his overdue note, given under similar circumstances, was in the hands of an attorney, unpaid, (i) He told Anderson that Pasha had refused to take his note because it was not bankable, (j) He, in effect, admitted to Anderson that his purpose was not to comply with the terms upon which credit was extended, but that he intended to kill and pay for the cheaper cattle, and force Pasha to take back those of higher price. And he carried out his design so far as he was able, (k) He made no claim that his personal note was bankable paper until he testified at the trial.
But it is said that the testimony of the plaintiff concerning the information received from Cox and Brown, the bankers, was hearsay. As has heretofore been suggested, we think there was sufficient evidence in the record to show that the note was not bankable, without this testimony. The parties evidently had in mind the banks of Bozeman, at which place both did their banking business. Defendant, in effect, so admitted when he testified that his personal notes had always been taken by the Bozeman banks. But was the testimony incompetent? We think not. The conversations related by plaintiff took place in the respective banking houses named by him. Mr. Cox in answering his inquiries was acting officially as cashier of the Commercial National Bank, and Mr. Brown was acting for the National Bank of Gallatin Yalley. If the plaintiff had tendered the note to each of the banks and both had refused to purchase it, there can be no doubt that his testimony as to the result of his efforts would have been competent. Mr. Cox spoke for his bank, and Mr. Brown’s declarations were those of the bank of which he was the executive officer. Counsel for the appellant says in his brief: “No reason appeared why Mr. Cox and Mr. Brown were not subpoenaed as witnesses. Defendant had a right to cross-examine these witnesses and to have them testify under oath.” Had they so testified, upon the theory advanced by the defendant, it could only have been to draw a conclusion whether or not the note was bankable. But, assuming that such evidence was competent, there is another way of proving the fact; and that is by showing that the banks had actually refused to buy the paper. Their reasons for refusal would be altogether immaterial. In addition to the financial responsibility of the makers or indorsers of commercial paper, there is always the personal equation to be solved, — the question of moral risk. There is also the form of the paper to be taken into consideration, its terms and conditions, the time of payment and rate of interest. Bankers naturally and properly consider all such matters in determining the advisability of buying commercial paper. And, again, the condition of the funds of the bank and the amount of such paper already on hand are things which may be and undoubtedly are necessarily taken into consideration. In times of great financial stress and panic, it often occurs that the banks do not loan any money at all. Under such circumstances even so-called “gilt-edged” paper is not bankable. This condition involves no reflection upon the financial responsibility of the maker or in-dorser. It is his misfortune. So that we say, under circumstances such as we have under consideration, it is the bank that acts, through its executive officers, and it may exercise its own judgment. Its decision may oftentimes seem arbitrary, but that is its concern. The question at issue was whether the banks had refused to buy the note. Plaintiff asserted that they had. He could testify to the fact of his own knowledge. Such testimony was competent. (Wallace v. Bernheim, 63 Ark. 108, 37 S. W. 712; Key v. Shaw, 8 Bing. 560.)
The appellant bases his claim that the note was bankable upon the authority of the case of E. P. Allis Co. v. Madison E. L. H. & P. Co., 9 S. D. 459, 70 N. W. 650. The facts in that ease were these: The plaintiff sold certain machinery to the defendant for the agreed price of $3,500, payable as follows: $500 in cash and the balance, in equal payments, due in six, twelve, and eighteen months, respectively, all of said deferred payments to be secured by “bankable paper” drawing seven per cent interest. Pursuant to the agreement the defendant sent to the plaintiff three notes for $1,000 each, due in six, twelve, and eighteen months from the seventeenth day of October, 1889, which notes were signed by J. A. Trow, as surety, and indorsed by the Citizens’ National Bank of Madison, in South Dakota. The notes were retained until January 25, 1890, when they were returned as not being bankable paper. The supreme court in its opinion said: “The principal objection is that the court below was not justified in finding that the notes constituted ‘bankable paper,’ and this contention is based upon the claim that the testimony of Bruce, McKinney, and Baker was incompetent upon the issue of whether or not the notes constituted bankable paper. The witnesses testified that they were engaged in the banking business in Sioux Falls and had been so engaged for a number of years; that they knew the financial standing of Trow and the Citizens’ National Bank among bankers ; and that the paper in controversy was bankable paper. They were all officers of banks in this state, and were acquainted with the financial standing of Trow and the bank. This rendered them competent to testify as to the character of the paper. It was shown on cross-examination that these gentlemen, as officers of their respective banks, by reason of the stringency of the money market and the demands of their customers, had declined to discount or purchase the paper. But this fact did not render them incompetent to testify as to whether or not the paper was bankable or tend to discredit their evidence on that subject. * * * -What, then, was intended by that term in the contract? Evidently paper so secured as to be regarded as bankable paper by banks — first-class paper. We conclude that the term, as used in the contract we are considering, was intended to mean high-credit paper, which, if the time of payment was reasonable and the banks had loanable funds, would be discountable paper. No other meaning could have been intended by either party.” Perhaps the foregoing case may be distinguished from the one at bar in the manner of its presentation to the court. As is indicated in the opinion, there was expert testimony that the notes were “bankable paper,” while in the case at bar no attempt was made by the defendant to prove that his note was bankable, aside from his own testimony that the banks had theretofore taken his notes.
But we are unable to concur in the view of the law taken by the South Dakota court. The result of it is that the notes were bankable in theory, but not in fact. The Century Dictionary defines the word “bankable” thus: “Receivable as cash by a bank, as bank notes, checks and other securities for money. ’ ’ It seems to us a contradiction in terms to say that a note which the banks refuse to take is bankable. The words employed should be given a definite meaning in contracts like the one in question. If the parties merely intended, as suggested by the supreme court of South Dakota, that the paper should be “first class” or of “high credit,” dependent upon the financial standing of the maker or indorser, they might easily have so declared. The plaintiff was not concerned with the question of the solvency or financial worth of those who were to execute the note. It was his purpose to have the banks determine that matter for themselves. No question of indorsement is in this ease. The plaintiff was willing and was required by the contract to accept the unsecured note of the defendant himself, provided it could be disposed of at a bank. It would, in our judgment, be a dangerous doctrine to hold that the bankable character of a piece of commercial paper is dependent upon the subsequently expressed opinions of bankers who have theretofore refused to purchase it; especially in view of the fact, as shown in this case, that the primary object of taking the same was to at once convert it into cash. The acts of refusal to purchase themselves characterized the paper as non-bankable. Paper which the banks refused to purchase is not bankable paper, and that regardless of the reasons for refusal.
We conclude, therefore, that there is ample evidence in the record to justify the finding that the note in question was not bankable in Bozeman. The condition of its acceptance was that it should be convertible into cash. It was not so convertible. Therefore, the condition upon which credit was extended was not fulfilled by the defendant, and plaintiff could sue at once as for cattle sold and delivered.
2. There is some criticism of the findings of fact and conclusions of law. An inspection of the findings heretofore quoted will show that they are somewhat inaccurate in the light of the testimony. But we regard this as immaterial. In substance, they cover all of the issues in the ease, and the ultimate conclusion reached by the court is so clearly and manifestly just and right that we are not disposed to regard technical objections with any great degree of favor.
The judgment and order are affirmed.
'Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of tbe court.
This action was brought to recover damages for an alleged breach of contract. The plaintiff recovered judgment, and defendant appealed therefrom and from an order denying it a new trial.
The complaint alleges that on November 17, 1908, plaintiff purchased from the defendant company, and defendant sold to plaintiff, one car of oats at $1.60 per hundred, six cars at $1.65 per hundred, ten ears of alfalfa hay at $9.50 per ton, and six cars of timothy hay at $13.50 per ton, f. o. b. Waco or Custer, as directed by plaintiff, delivery to be made at any time before June 15, 1909, upon ten days’ notice from plaintiff, and payment to be made by plaintiff thirty days after receipt of the goods. It is then alleged that the defendant company delivered two cars of oats, two and one-half of alfalfa, and two and one-half of timothy, for which plaintiff paid according to contract, '* the last of which oats and hay were delivered to plaintiff by defendant under said contracts in December,- JUGS:'’'5 It is further ¿1". leged that plaintiff made frequent demands upon defendant to deliver the remainder of the oats and hay; that defendant failed, neglected, and refused to deliver any more of either; and that plaintiff was forced to go into the markets and purchase oats and hay at greatly increased prices, to his damage in the sum of $1,973.90. The answer of defendant company admits that a contract was entered into between plaintiff and defendant with respect to the quantities of hay and grain mentioned in the complaint, that the contract prices were as plaintiff alleges, but defendant asserts that deliveries were to be made at any time between November 17, 1908, and May 1, 1909, at the option of the defendant, and that payments were to be made by plaintiff on the first of every month for all goods delivered during the preceding month. Defendant admits that it delivered two ears of oats and two and one-half each of alfalfa and timothy under the terms of the contract, but denies that plaintiff paid for the same according to the terms of the contract, and alleges that final payment for such goods was not made until April, 1909. It is alleged that defendant shipped to plaintiff at Custer five carloads of hay, but that plaintiff refused to receive or accept the same. Defendant, by way of counterclaim, alleges breach of the contract on the part of plaintiff, to defendant’s damage in the sum of $222.50; and by way of a second counterclaim sets forth a claim for lumber sold and delivered to plaintiff of the value of $84. By reply plaintiff put in issue the affirmative allegations of the answer, except those contained in the second counterclaim, which are admitted. During the course of the trial plaintiff was permitted, over objection of defendant, to amend his eomplaint by substituting the words “March, 1909,” for the words “December, 1908,” in that portion of the eomplaint quoted above. In this court counsel for appellant urged (1) that the complaint does not state a cause of action; (2) that the court erred in receiving in evidence Plaintiff’s exhibits C, D, and H; (8) that the trial court erred in permitting the amendment to the complaint; and (4r) — cliat the'cour-t-orred in denying defendant’s motion for a new trial.
• 1. It is argued that according to plaintiff’s own theory, as disclosed in the complaint, the contract was void for want of mutuality, in that it was left optional with the plaintiff whether he would or would not call for delivery of the goods, the subject of the contract; but with this we do not agree. The complaint alleges facts from which it appears that a sale was made on November 17, 1908, of all the goods in question here, that plaintiff had the right to fix the time for delivery, but that he was obliged to call for all the goods before June 15, 1909. We think this is made very clear, and that the complaint states facts sufficient to constitute a cause of action.
2. Plaintiff’s exhibits C and D are letters, and exhibit H is a telegram, all sent by plaintiff to defendant. They were properly admitted in evidence in support of plaintiff’s allegation that he had made repeated demands upon defendant to deliver the balance of the goods in controversy.
3. That a sale was made by defendant to plaintiff on November 17, 1908, of one car of oats at $1.60 per hundred, sis cars at $1.65 per hundred, ten cars of alfalfa at $9.50 per ton, and sis ears of timothy at $13.50 per ton, is settled by the admissions in the pleadings. The only questions in dispute are as to the terms of payment, the place of delivery, the final date of delivery, and the party who had the right to fix the time of delivery within the limits of the term of the contract. All these disputed questions were determined in favor of the plaintiff by the general verdict of the jury.
4. Error is predicated upon the action of the trial court in permitting plaintiff to amend his complaint, and in refusing defendant a new trial. The authority of the trial court to permit a pleading to be amended so that it will correspond to the proof is recognized by statute (see. 6589, Rev. Codes). But the argument is advanced that in this particular instance the amendment changed the issues and placed the defendant at a disadvantage in that it was not prepared to meet the proof admissible under the complaint as amended, and for this reason the amendment should not have been allowed. The application to amend was addressed to the sound discretion of the trial court, and, in the absence of any abuse of such discretion, the action, of the trial court will be approved on appeal. (Dorais v. Doll, 33 Mont. 314, 83 Pac. 885; Christiansen v. Aldrich, 30 Mont. 446, 76 Pac. 1007; Montana Ore Pur. Co. v. Boston & Mont. etc. Co., 27 Mont. 288, 70 Pac. 1114.)
By the pleadings themselves it is determined that defendant delivered to plaintiff, and plaintiff received and accepted, two cars of oats and five cars of hay. In the complaint it was stated that these deliveries were made in December, 1908. Upon the trial plaintiff testified that the last of these deliveries was made in March, 1909, whereupon his counsel moved the court to permit the complaint to be amended! by substituting “March, 1909,” for “December, 1908,” and the record then discloses the following: “By Mr. Noyes, Counsel for Defendant: Object to the pleading being so amended at this time after the evidence has been discussed in the manner it has. By the Court: Make the amendment. (Exception to the court allowing the amendment.) ” There was not any application by defendant for a continuance, no suggestion to the court that defendant was not fully prepared to meet the proof under the amended pleading, not even a suggestion that defendant was taken by surprise; indeed, defendant did not even take the trouble to amend its answer to meet this new allegation or ask for time to do so or to secure evidence or to make an investigation, but proceeded with the trial without further complaint or objection. It is not difficult to appreciate the fact that the amendment was a material one, and, if counsel for defendant had requested a postponement or the imposition of other terms, doubtless their request would have been granted; but, in the absence of any suggestion that their client was put to a disadvantage, they cannot assert now that the trial court abused its discretion in permitting the amendment to be made.
The motion for a new trial on the ground of newly discovered evidence was supported by the affidavit of L. F. Russell, secretary and manager of the defendant company. After stating the issues, the affidavit refers to the action of the court in allowing the amendment to the complaint, and alleges that defendant had not made any preparation to meet the issues as thus changed, but that since the trial it has discovered evidence which tends to prove that the two cars of oats and five cars of hay were in fact delivered to plaintiff in December, 1908. The character of this newly discovered evidence is described, and, with respect to some of it, it is asserted that such evidence can be produced if a new trial should be granted. It is alleged that the reason defendant did not ask for a continuance at the time the amendment was made was that it did not know of the existence of this evidence which has since been discovered. The affidavit refers to certain records in the office of the Northern Pacific Railway Company at Custer, Montana, which records, it is asserted, disclose that plaintiff receipted for the two cars of oats and five ears of hay in December, 1908. Affiant asserts that he has personally examined the records, and has in his possession copies of some of them, but he fails to attach copies to his affidavit or give any reason for his failure to do so. The affiant further asserts that defendant can prove certain facts by one Gowan, the Northern Pacific agent at Custer, and certain other facts by one Goodwin, who was in defendant’s employ at Custer during December, 1908, but there is not any affidavit by either of these witnesses, and there is not any excuse offered for the failure in this respect as to the witness Gowan. From the affidavit it appears that Goodwin is somewhere in the state of Washington, beyond the reach of process issued from a court of this state; and it is not made to appear that there is any probability that his testimony can be secured for another trial if a new trial should be had. In fact, it does not appear from the affidavit that Gowan and Goodwin were not present at the trial of this case, or that their evidence was not procurable at that time (State v. Wakely, 43 Mont. 427, 117 Pac. 95); while the facts disclosed are such as to indicate that the defendant knew at the time of the trial, or ought to have known, that Gowan and Goodwin were then in possession of every fact which it is now asserted they know.
A supplemental affidavit has been offered in this court, but it cannot be considered. In appeal eases this court sits as a court of review, and we are bound by the record as it was made in the court below. Viewed in the most favorable light, the affidavit upon motion for new trial contains nothing but hearsay, and that, too, without explanation. In Elliott v. Martin, 27 Mont. 519, 71 Pac. 756, this court, considering a like question, said: “The court did not err in its discretion in refusing to grant a new trial on the affidavit of plaintiff J. A. Elliott as to newly discovered evidence, for one reason, at least; that is, that Elliott neither offered any affidavits of the witnesses by whom he expected to prove the matters referred to in his affidavit, nor did he offer any excuse as to why he did not submit the same.” In State v. Matkins, ante, p. 58, 121 Pac. 881, we had occasion to consider at length an application for a new trial on the ground of newly discovered evidence. For a full discussion of the subject a reference to the opinion in that case will suffice.
Upon consideration of the record before us, we are led to repeat the language of this court in Landeau v. Frazier, 30 Mont. 267, 76 Pac. 290, approved in Orton v. Bender, 43 Mont. 263, 115 Pac. 406, as peculiarly applicable in this instance: “In most respects this new evidence would be merely cumulative and of an impeaching nature. As the granting or refusing of a new trial upon the ground of surprise or newly discovered evidence rests largely in the discretion of the trial court, and as the record does not disclose any abuse of discretion in this instance, the ruling of the court below will not be disturbed. ’ ’
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
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MR. CHIEF JUSTICE BRANTLY
delivered the opinion of the court.
Appeal from an order setting aside a default and judgment. The complaint contains two causes of action. The first is against the defendant D. E. Treat, and seeks recovery upon a promissory aote executed by him and delivered to the plaintiff under date of November 6, 1907, for $183.55, and due six months after date, with interest at ten per cent per annum, less a credit of $20.02. It provides for a reasonable attorney’s fee, and it is alleged that $50 is a just allowance on this behalf. The second cause of action is against both defendants, and seeks recovery for the principal sum mentioned in the note, and alleges, in substance, that the defendants being indebted to the plaintiff for goods, wares, and merchandise sold and delivered to them, as husband and; wife, for tbeir joint benefit, and for the support of their family, the note was executed by defendant D. E. Treat for the purpose of securing an extension of time for payment only, for the benefit of both defendants. Judgment is demanded for the full amount of the principal sum, with interest at ten per cent per annum, less the credit of $20.02, with $50 attorney’s fee. The defendants having failed to appear and make defense, upon application by counsel for plaintiff, the court rendered and caused judgment to be entered against both defendants for the amount due on the note, together with $50 for an attorney’s fee and costs. Default was taken, and judgment entered on August 12, 1911. The motion to set aside the default and vacate the judgment was made on September 8, 1911, on behalf of the wife only. It was supported by an affidavit by this defendant and accompanied by a proposed answer, which upon its face states a defense. The affidavit contains these statements: “The summons and a copy of the complaint in this action were served upon me on July 17, 1911. At the time the same were served upon me, D. E. Treat, one of the defendants in this action, promised to consult an attorney and enter a defense to this action. * * * No part of the merchandise which formed the basis of this action was furnished to me or was used upon any of my property. The same were not necessaries. I depended and relied upon the defendant D. E. Treat to make an appearance in this action, and, so relying upon him, did not know that an appearance for myself or defendant D. E. Treat had not been made, until after default had been entered. A short time after I was served with summons, it was necessary for me to leave the city of Bozeman, and I did not return until it was too late for me to consult counsel and make an appearance. In view of the above statements, judgment was taken against me by surprise. And I further say that I have fully and fairly stated the facts of the case in this cause to H. D. Kremer, my counsel, who resides in the city of Boze-man, state of Montana, and after such statement, I am advised by him that I have a good and substantial defense bn the merits of this action, and I verily believe the same to be true.” Coun sel for plaintiff filed a counter-affidavit controverting most of tbe facts stated by defendant, particularly as to her absence from the city of Bozeman, and her want of time to make her appearance. It does not controvert the fact that her eodefendant promised to enter an appearance and make defense, and that she relied upon him to do so. We have presented, therefore, the single question whether defendant’s failure to appear because of her reliance upon the promise-of her codefendant was excusable neglect.
While the courts should adhere to the rule that a party who has suffered a default ought not to have relief except upon showing a substantial excuse for his apparent neglect because the adverse party is prima facie justly entitled to the advantage which he has secured by the default, yet they should not indulge in refined distinctions or assign importance to matters of form, which might result in a denial of justice. Each case must be determined upon its own facts; and, when the motion is made promptly and is supported by a showing whieh leaves the court in doubt or upon which reasonable minds might reach different conclusions, the doubt should be resolved in favor of the motion. (Benedict v. Spendiff, 9 Mont. 85, 22 Pac. 500; Morse v. Callantine, 19 Mont. 87, 47 Pac. 635; Eakins v. Kemper, 21 Mont. 160, 53 Pac. 310.)
The affidavit of defendant is not explicit in stating that her husband promised to make defense for her, but, taken as a whole, it is clear that she understood such was the ease. It was but natural that she should look to him, as the head of the family, to employ an attorney to make defense; and, if her statement is to be taken as true, she did so. By deputing him to look after her defense, she manifested her intention not to allow judgment to go against her. Moreover, if the statements in her affidavit and answer are true, she is not liable in any amount, because the indebtedness was not incurred by her or in her behalf. In any event, the note was not her contract, and a judgment against her for the amount of it, with interest at a rate higher than the legal rate, and for an attorney’s fee which it is not alleged she agreed to pay, is manifestly unjust. Doubtless this was one considera tion which moved the court to grant her an opportunity to make a defense. It is the general rule that when a judgment has been rendered against a defendant who is in default for the reason that another person upon whom he has relied to attend to the defense for him, or who is chargeable with that duty by vir-. tue of the relation of the parties, has neglected to do so, relief will be granted on the ground of excusable neglect. (23 Cyc. 936.) This court recognized and applied the rule in Heardt v. McAllister, 9 Mont. 405, 24 Pac. 263, and in Morse v. Gallantine, supra. Whether the defendant was present at Bozeman during the time she had to make her appearance is not material, if as a matter of fact she relied upon the promise of her husband to save her default.
Viewing the case as a whole, we do not think the court abused its discretion in holding that the neglect of the defendant was excusable. Under the statute (Rev. Codes, sec. 6589) the court might have imposed terms; but we do not think that its action should be overturned because it did not. (Pengelly v. Peeler, 39 Mont. 26, 101 Pac. 1 47.)
The order is affirmed.
'Affirmed.
MR. Justice Smith and Mr. Justice Holloway concur.
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] |
MR. JUSTICE STARK
delivered the opinion of the court.
On March 22, 1923, an order was duly made in this action appointing Charles S. Muffly and I. H. Brand receivers of all of the properties of the defendant corporations. Under this order Mr. Muffly was given actual charge, management and control of all the properties of the several corporations located in this state, while Mr. Brand was given control of the business affairs of the corporations which centered in Boston, Massachusetts. Since the only matters raised on this ap peal relate to the accounts of Receiver Muffly, we eliminate Brand from further mention, and shall refer to the former alone as the receiver.
The properties located in this state, and which passed into the hands of the receiver, consisted of a group of about fifty-five unpatented mining claims, with a large amount of development work done upon them, a 750-ton flotation mill, adjacent to the mining properties and used in connection therewith, situated in Beaverhead county; also a narrow-gauge railroad about forty miles in length extending from Divide Station to the mining properties. There were mortgages upon these properties, given to secure the sum of several million dollars, which were foreclosed in the action, the decrees of foreclosure providing for sales of the various properties by a special master in chancery, and, further, that the purchaser or. purchasers, in addition to the sums bid at the sales, should pay off the unpaid obligations which had been incurred by the receiver before the delivery of the property to the purchasers.
Perry B. Goodwin became the purchaser of all the properties, and thereby assumed responsibility for payment of the unpaid obligations of the receivership. After the sales of the property and the confirmation thereof, and on January 19, 1925, the receiver filed a report and account of his doings, in which he set forth claims for his own expenses and compensation, and also claims for allowances to be paid to his attorneys. The purchaser, Goodwin, filed objections to certain of these items, and a partial hearing was had upon them on March 11, 1925, and the further hearing thereon continued to June 15, 1925. On March 11 the receiver filed a supplemental report bringing his accounts down to that date, and on June 15 a second supplemental report was filed bringing the accounts down to that time. Objections were duly filed to these supplemental reports, and the matter submitted to the court for determination on the last-mentioned date. As finally submitted, the items to which objections were made were as follows:
(1) Claim of the receiver for compensation at the rate of $1,000 per month from the date of his appointment.
(2) Claim of receiver as part of his expenses for rent of room at the Thornton Hotel, in Butte, from March 22, 1923, to April 30, 1925, at $3.50 per day, $2,277.20.
(3) Claim for allowance for payment of receiver’s counsel, as follows: J. A. Walsh, for services to January 19, 1925, $3,500; J. A. Walsh, for services subsequent .to January 19, 1925, $1,500; J. A. Walsh, for services at hearing on March 11, 1925, $350; Howard Toole, services at hearing on March 11, 1925, $350; Howard Toole, expenses, $11.24.
(4) F. B. Layhe, $48.90.
Upon these contested items the court made its order: (1) Allowing the receiver compensation at the rate of $500 per month, a total of $13,382.95, from which was deducted the sum of $6,000 theretofore received by him on that account, leaving a balance of $7,382.95. (2) Reducing the claim for room rent at the Thornton Hotel to the sum of $1,012. (3) Allowing receiver as compensation to his counsel the following sums: J. A. Walsh, $3,500; J. A. Walsh and Howard Toole jointly, $450; expenses of Howard Toole, $11.24. (4) Disallowing in toto the F. B. Layhe item of $48.90.
All the allowed items were ordered to be paid out of the funds in the hands of the special master derived from the sale of the property. Judgment was entered in accordance with the foregoing determinations, from which the receiver has appealed, and he assigns as error the action of the court in reducing his claims for compensation for himself and bis attorneys, reducing his claim for expense of the room at the Thornton Hotel, and disallowing the Layhe item of $48.90.
1. At the hearings upon these contested items it appeared that on September 13, 1924, Judge Joseph C. Smith, one of the judges of said court who was then presiding in matters connected with this receivership, made an order fixing the compensation of the receiver at the sum of $1,000 per month. The minutes of the court show that shortly thereafter Judge Smith, deeming himself disqualified from further participation in the case, called in Judge Lyman H. Bennett, the other judge of said court, to assume jurisdiction of further proceedings therein.
To sustain their contention that the court erred in reducing the claim of the receiver for compensation at the rate of $1,000 per month, counsel for appellant in part rely upon the above-mentioned order made by Judge Smith, fixing his compensation at that amount, and say that this order is conclusive against a collateral attach thereon such as is here made, citing the case of Burke v. Inter-State S. & L. Assn,, 25 Mont. 315,, 87 Am. St. Rep. 416, 64 Pac. 879. On the other hand, respondent contends that this order is void for the reason that it was made by the court of its own motion and without notice to any party in interest.
The whole record of the case, including all the original pleadings and documents filed therein, has been brought up for our examination, and from an inspection thereof it appears respondent’s contention that the order referred to was made by Judge Smith without notice to any party to the suit is correct. While this order did not assume to fix and determine the ultimate rights of any of the parties to the proceeding, by directing which of them should be held liable for the payment of the amount of the allowance, it was an intermediate proceeding, one of the successive steps which might have resulted in a final judgment against the properties in the hands of the receiver, or against some of the parties to the suit (State ex rel. Heinze v. District Court; 28 Mont. 227, 72 Pac. 613); thereby having had the effect of taking from them a portion of the property, or the proceeds thereof, to which they would otherwise have been entitled. Such a judgment would have deprived them of a sum due, as much as would a judgment directing that they pay over that amount, and all this without having been given an opportunity to appear and contest the claim.
In the case of Ruggles v. Patton, 143 Fed. 312, 74 C. C. A. 450, it is said: “Nothing is better settled than that an allow anee to a receiver by way of compensation for his services is not subject to the arbitrary determination of the court, but should be made upon a hearing at which the parties interested have an opportunity of contesting the claim. * * * If reviewable upon appeal, it follows that the order is erroneous, if made without notice.”
The rule announced in that case is supported by all the authorities which have come to our attention, and among them we cite Bank v. Crysler, 67 Fed. 388, 14 C. C. A. 444; In re Michigan Cent. R. R. Co., 124 Fed. 727, 59 C. C. A. 643; In re Magner, 173 Iowa, 299, 155 N. W. 317; Colkett v. Hammond, 101 Wash. 416, 172 Pac. 548. In the case last cited it was held that an order fixing the compensation of a receiver and his attorneys, purporting to be final, made ex parte and without notice to anyone interested other than the receiver and his attorneys, was void.
In face of the record presented to us, which shows that in fact the order in question was made without notice, we hold it was void. The order being void, no right could be predicated thereon, and it is subject to collateral attack. (Crawford v. Pierse, 56 Mont. 371, 185 Pac. 315; Henderson v. Daniels, 62 Mont. 363, 205 Pac. 964.) Therefore, to determine whether the court erred in fixing the amount of the receiver’s compensation, resort must be had to the evidence given at the hearing, without reference to the order above mentioned.
In the consideration of this matter we are governed by the rule frequently announced by this court that in an equitable proceeding the findings of the trial court will not be disturbed unless it appears that the evidence clearly preponderates against them. (State Bank v. McIntyre, 71 Mont. 186, 228 Pac. 618; Hartnett v. Sterling, 67 Mont. 46, 214 Pac. 330; Richardson v. Valier Elevator Co., 67 Mont. 227, 215 Pac. 237; Wood v. Robbins, 67 Mont. 409, 215 Pac. 1101; Sanger v. Huguenel, 65 Mont. 236, 211 Pac. 349.) Tested by this rule, can it be said that the evidence clearly preponderates against the determination of the court that the compensation of the receiver should be reduced from the amount claimed by him to a sum equivalent to one-half thereof, and that the latter amount was the reasonable value of his services ?
In the case of Hickey v. Parrot etc. Co., 32 Mont. 143, 156, 108 Am. St. Rep. 510, 79 Pac. 698, 701, it is said: “The considerations that should be controlling with the court in fixing compensation are the value of the property in controversy; the practical benefits derived from the receiver’s efforts and attention; time, labor, and skill needed or expended in the proper performance of the duties imposed, and their fair value, measured by the' common business standards.”
And in Alderson on Beceivers, section 625, page 855, the author says: “The court may properly consider the qualifications of the person appointed receiver, the amount of time which a proper performance of the duties of the position will require and the manner in which the service is performed. ’ ’
The testimony taken at the hearing disclosed that the prop- erties of which the receiver assumed charge and control were of great magnitude. "While there was no direct testimony as to their value, it was shown that prior to March, 1922, there had been expended thereon in development of the mines and construction of the mill more than $5,000,000, and that the interested companies had succeeded in floating bonds, secured by mortgages upon these properties, amounting to many millions of dollars. It also appeared that the judge presiding at the hearing deemed the property of sufficient value to justify him in directing the master in chancery, who conducted the sales of the properties, to pay out of the proceeds thereof to the counsel who conducted the foreclosure proceedings the sum of $17,500 as a reasonable compensation for their services in that behalf.
At the time the receiver was appointed, the mines were in operation with upward of 100 men at work. The receiver was confronted with the fact situation that many of these men had not been paid their wages for a considerable period of time, and no money was available for the payment of tbeir claims. To reduce the expenses and conserve the properties intact, it was necessary to reduce the number of employees and still retain a sufficient number to prevent deterioration of the mines, mill and railroad properties. In order to retain these men he found it necessary at times to pledge his personal credit. During a period of many months he devoted his entire time and energy to the duties of the receivership, attended to a considerable amount of litigation, looked after the representation of the unpatented mining claims, and by his efforts managed the affairs of the companies and conserved their properties in such a way that at the end of his stewardship he turned them over to the purchaser in good condition, ready for immediate operation. No complaint is made of his conduct of these affairs. In so far as the care and preservation of the property is concerned, it is not suggested that he did anything which he ought not to have done or left undone anything which he should have done. The record showed that Muffly was a man of wide and varied experience in the handling of men and mines; that he was president of the Montana Mining Association, which is composed of some 1,900 men interested in mining in this state; that he has been actively engaged in the mining industry on his own account a greater portion of the time since 1886. He did not seek the position of receiver, and only accepted the appointment after urgent solicitation. In order to perform his duties he was obliged to, and did, abandon mining projects of his own which he stated would have paid him larger returns than the salary which he asked to be allowed him as receiver. For the faithful performance of his duties he was required to furnish a bond in the sum of $100,000.
At the hearing, to support his contentions, the objector produced two witnesses, one of whom valued such services as the receiver performed at $250 per month, basing this estimate on the fact that the average mine foreman in Butte received from $225 to $275 per month. The same witness further testified that a mine superintendent was paid from $250 to $500 per month, and in some cases more than that sum. The objector’s other witness said that in his opinion $300 a month would be “a fair, just and ample salary” to be allowed the receiver for his services. The weight of the testimony given by these witnesses was lessened by the fact that upon cross-examination it appeared that in making their estimates they failed to take into consideration the value of the special abilities and qualifications required of one to discharge in a diplomatic way the onerous duties of the position occupied by the receiver, or that the vexations and annoyances of constant litigation which occupied a considerable portion of the time were entitled to be taken into account. It seemed to be their theory that there should be no difference between the compensation of the receiver of an enterprise who had assumed personal responsibility for the care and conservation of several million dollars’ worth of mining, milling and railroad properties involved in litigation, whose responsibility therefor had been guaranteed by a $100,000 bond, and that of a foreman having charge of a crew of men engaged in removing ore from the mine.
On the part of the receiver, two witnesses of ability and experience, apparently at least equal to that of the objector’s witnesses, in answer to substantially the same questions which had been propounded to them, gave it as their opinion that the services rendered by the receiver should be worth $20,000 or $25,000 per year. The testimony referred to above was given by persons who would be designated as expert witnesses. However, the record contains the statement of other facts and circumstances which are most persuasive to us. When the defendant companies were confronted with the financial situation which created the necessity for the appointment of a receiver, William R. Allen was, and for a long time prior thereto had been, their president and general manager, and as such was vitally interested in their affairs. When application for the ap pointment of a receiver was made, with his counsel he was in Consultation with the judge of the court, casting about for the most desirable man for appointment to the position. This conference was at Dillon. Muffly was then a member of the state legislature, which was in session at Helena. Allen and his attorney called Muffly by telephone, and in the presence of Judge Smith solicited him to accept the appointment. According to Allen, either in the telephonic conversation or at a subsequent conference, the matter of the receiver’s compensation was discussed, and in reference thereto Allen testified: “In the conference or conversation I stated that it depended largely upon the matter of time. If a man took up a position of that character for a few months, taking him away from his business, I thought $1,000 a month would not be excessive, but if it ran into a period of years I thought it should be cut down from that.”
Judge Smith, as a witness, gave it as his recollection that in the telephonic conversation above referred to Allen and his attorney said to Muffly that they would try to have the compensation fixed at $1,000 per month. Muffly himself testified that in the talk over the telephone Allen stated that, if he (Muffly) would accept the appointment as receiver, the compensation would be $1,000 per month.
Of course, this testimony relative to the agreement with Muffly concerning his compensation was not binding upon the court, and we. give it consideration only as bearing upon what should be determined as a reasonable allowance. It seems to us that Allen, who knew the properties about to pass into the possession of the receiver and their value better than any other witness produced, and who also knew the nature and extent of the duties and responsibilities to be imposed upon the receiver, and who as president and manager of the companies was himself interested in the conservation of the properties, was.in a far more advantageous position to estimate the value of the services to be performed by the receiver than any other person who appeared as a witness. Moreover, he did not appear as an expert on behalf of either party, and it cannot be said from the record that in his testimony he displayed any partiality toward the receiver. We are impressed with the fact that the testimony given by this witness, who was qualified above all the others to pass upon what would be deemed a reasonable compensation, confirmed the receiver’s claim and should be given controlling effect.
Under the provisions of section 8805, Revised Codes of 1921, in an equitable proceeding such as this, authority is reposed in this court to determine the questions o'f fact, unless for good reasons a new trial, or the taking of additional testimony in the district court, is deemed necessary. It is not perceived that such necessity exists in this case. Two opportunities were afforded to the parties to present their evidence on the point now under consideration, and all that evidence is now before this court. Viewed in its entirety, we do not think it furnishes reasonable grounds for different views, and upon a due consideration thereof we are forced to the conclusion that it clearly preponderates in favor of the receiver’s claim for compensation at the rate of $1,000 per month, and that the finding of the trial court reducing that claim to $500 per month cannot be sustained.
2. Prior to the receivership the defendant corporations, while carrying on the business of mining, milling and railroading as going concerns, maintained an office at Allentown, which sufficed for all purposes. When the receiver entered into the discharge of his duties he retained the office at Allentown and, in addition thereto, rented an office in the Lewisohn building in Butte. He also rented a room in the Thornton Hotel in Butte, which was used by him as a bedroom, and in which he kept a portion of the papers and records of the receivership, and where he transacted a part of the business connected therewith. For the rental of this hotel room he asserted a claim for reimbursement as expenses of the receivership at the rate of $3.50 per day from the time of his appointment down to June 15, 1925. He contended that it was necessary for him to have a private office in Butte, apart from the one maintained in the Lewisohn building, in order to escape being continually harassed by creditors of the defendant companies. The court apparently adopted the receiver’s view as to the necessity of such arrangement, but considered that the receiver was not privileged to recover as expenses of the receivership a portion of his living expenses, and so allowed him the sum of $40 per month for the rent of the room instead of $3.50 per day as claimed. The court’s order reducing this claim was fully justified by the evidence. The receiver’s living expenses were not proper items of expense to be charged against the properties under his control.
3. When the receiver filed his report and account on January 19, 1925, he asked to be allowed the sum of $3,500 as compensa tion to J. A. Walsh, one of his attorneys. In the supplementary accounts he asked an additional allowance of $1,850 for payment to Mir. Walsh; of which $350 was for the services rendered at the hearing on March 11. At that hearing Howard Toole also appeared as counsel for the receiver, and the supplemental accounts asked the allowance of a $350 fee and° an $11.24 expense item for Mr. Toole. As heretofore indicated, the court allowed Messrs. Walsh and Toole for their services at this hearing the sum of $450 jointly, and also the $11.24 expense item, but only allowed to Mr. Walsh the further sum of $3,500, being the amount set out in the receiver’s report of January 19.
There is nothing before us to indicate but that when the receiver filed his report on January 19 he made a claim for the full amount of the compensation to which counsel was entitled down to that date. A careful examination of the record fails to show that Mr. Walsh performed any services for the receiver subsequent to that date except those at the hearings of March 11 and June 15; so that there was no basis for the receiver’s claim for an additional allowance of $1,500 to him. The compensation allowed to the attorneys for their services at the hearings of March 11 and June 15 was submitted to the court for determination without the introduction of any evidence. Under these conditions the court allowed the attorneys $450 jointly for their services. The record would not justify us in disturbing this determination.
Rehearing denied March 26, 1926.
4. No testimony was introduced as to the item set out in the account, “F. B. Layhe, $48.90,” and our only information concerning the same is that contained in the court’s order disallowing it, wherein it is stated that it is “the cost of transcribing the testimony taken at the hearing on March 11, 1925,” upon the report of the receiver to January 19, 1925. If necessity existed for transcribing this testimony so as to make its allowance proper, the burden was on the receiver to show it; he did not do so, and therefore cannot complain of the order of the court disallowing the item.
For the reasons above indicated, the cause is remanded to the district court, with directions to modify the order and judgment appealed from by allowing the receiver as his compensation for the period therein named the sum of $1,000 per month instead of $500 per month, and when so modified the same will stand affirmed. The appellant will recover his costs on this appeal.
Modified and affirmed.
MIr. Chiee Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.
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] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
This is an appeal from a judgment and decree declaring the levy of certain taxes on real property in Cascade county vacated, canceling a certificate of sale and enjoining the officials of the defendant county from selling such property for delinquent taxes. •
It appears from the complaint that the land in question stands of record in the name of three individuals, and was acquired in the following manner: One August Wedsworth died testate in Cascade county in' 1915; he bequeathed a certain- sum in trust for the purpose of establishing a library, reading-room and gymnasium in the town of Cascade, provided by will for the appointment of three trustees, in a certain manner, to administer the trust declared, and provided therein that the subject matter of the trust should be known as the “August Wedsworth library and gymnasium fund,” and that this fund should be administered “for the use and benefit of the town of Cascade and the inhabitants thereof” in perpetuity. In due time the trustees were duly appointed and entered upon the discharge of their duties. The will was admitted to probate, and the estate duly administered upon and closed. On March 16, 1921, by final order and decree of distribution, the assets thus bequeathed were distributed to the trustees, with, directions to administer the trust in conformity with the directions of the testator.
Among the assets thus distributed was a mortgage upon approximately 2,760 acres of land in Cascade county. On January 5, 1922, the mortgagor, being unable to meet his obligation, conveyed the land by warranty deed, absolute upon its face, to the three individuals so appointed and acting as trustees, designating them as “trustees of the town of CaS' cade.” This deed is attached to and made a part of the complaint. It is in the usual form of warranty deed, and conveys the land, “together with * * * the rents, issues and profits thereof; and also all the estate, right, title, interest * * * possession, claim and demand, * * * as well in law as in equity * * * of the party of the first part, and warrants * * * the quiet and peaceable possession thereof, unto the said parties of the second part.”
It is alleged in the complaint that, by agreement, the grantor was to hold possession of the land, rent free, for the usual period of redemption on foreclosure, but no such condition appears in the deed. The complaint alleges that the defendant county has pretended to tax the land so acquired for the years 1922, 1923 and 1924, and that such taxes are void for the reason that the land is the property of the town of Cascade, and as such is exempt from taxation; that for the delinquent taxes for the year 1922 the property was struck off to the county, and that the board of county commissioners threaten to sell the land at public auction.
A general demurrer was interposed to the complaint and by the court overruled. Thereafter the defendants answered, denying generally those allegations of the complaint referring to the acquisition of title to the lands and the invalidity of the tax. The action was tried to the court, and resulted in the judgment above referred to.
The judgment-roll alone is before us, and the only specification of error made reads as follows: “The court erred in overruling the demurrer to the complaint and in giving judgment against the appellants, for the reason that the complaint does not state facts sufficient to constitute a cause of action or to support the judgment.” The grounds on which it is contended that the court so erred are that the complaint shows on its face that the lands in question are not the property of the town of Cascade, but belong to the “August Wedsworth library and gymnasium fund,” and that if this is found not to be a correct interpretation of the provisions of the will, still the town of Cascade has no such ownership of the,, land as to exempt it from taxation.
The question of ownership is all-important in this case, for the reason that section 2 of Article XII of our state Constitution declares: “The property of the United States, the state, counties, cities, towns, school districts, municipal corporations and public libraries shall be exempt from taxation; and such other property as may be used exclusively [for certain designated purposes] may be exempt from taxation.”
This section contains two classes of exempted property, the first of which is absolutely exempt, regardless of the question of exclusive use, while the second class is exempt only if exclusively used for the purposes mentioned. (Montana Catholic Missions v. Lewis and Clark County, 13 Mont. 559, 22 L. R. A. 684, 35 Pac. 2.) The section is to be strictly construed, and contains a description of all property which may be exempted from taxation. (Cruse v. Fischl, 55 Mont. 258, 175 Pac. 878.)
1. Counsel for defendant assert that the deed described above should have run to the grantees named, not as “trustees of the town of Cascade,” but as trustees for the “August Wedsworth library and gymnasium fund,” but suggests that the wording 'of the deed presents no difficulty, as, in equity, “that which ought to have been done is to be regarded as done.” (Sec. 8758, Rev. Codes 1921.) We do not question but what the section quoted would warrant the read ing of the deed as suggested, providing counsel are correct as to what “ought to have been done” at the time the deed was executed; a careful reading and consideration of the terms of the will creating the trust and the nature of the trust will demonstrate that the deed should not have been drawn as suggested by counsel.
“A fundamental essential to the existence of any trust is the separation of the legal estate from the beneficial enjoyment.” (26 R. C. L. 1196; Doan v. Parish of Ascension, 103 Md. 662, 115 Aim. St. Rep. 379, 7 L. R. A. (n. s.) 1119, 64 Atl. 314, and note; Hospes v. Northwestern Mfg. Co., 48 Minn. 174, 31 Am. St. Rep. 637, 15 L. R. A. 470, 50 N. W. 1117.) This “beneficial enjoyment,” or, in other words, the equitable title to the subject matter of the trust, is vested in the person for whose benefit the trust is created, known as the cestui que trust. (Dillenbeck v. Pinnell, 121 Iowa, 201, 96 N. W. 860.)
For whose benefit was this trust created? Surely not for the “August Wedsworth library and gymnasium fund”; the “fund” is 'but the subject matter of the trust, legal title to which is vested in the trustees, for the use and benefit of the “town of Cascade and its inhabitants,” who are entitled to the beneficial enjoyment of the fund thus created and set aside for the purposes designated. The “town” is but “an assemblage of inhabitants living in the vicinity of each other and not separated by any other intervening * .* * division of the state” (Smith v. Sherry, 50 Wis. 210, 6 N. W. 561; Town of Enterprise v. State, 29 Fla. 128, 10 South. 740), and when organized as a municipal corporation such step is taken “for the purpose, mainly, that the people within their territorial limits may thereby1 be enabled, for their own interest and advantage, to administer their local and internal-concerns ; or, in other words, that they may have the power of local self-government.” (Logan City v. Buck, 3 Utah, 301, 2 Pac. 706.)
For the purposes of the trust created by the will of August Wedsworth, the town of Cascade and its inhabitants are one and the same entity, and this entity is the cestui que trust.
2. The defendants contend that, if this be true, still the land is not the “property” of the town, as, under a strict construction of the Constitution, the term must be construed in its narrow sense as meaning the unqualified ownership of the land.
The Article of our Constitution above referred to defines “property” as the term is used therein, to include “moneys, credits, bonds, stocks, franchises and all matters and things (real, personal and mixed) capable of private ownership.” (Sec. T7, Art. XII.) “Ownership of a thing” is defined in our statutes.as “the right of one or more persons to possess and use it to the exclusion of others.” (Sec. 6663, Rev. Codes 1921.) The constitutional provision is sufficiently broad to cover all manner of property as defined above, which may be possessed and used, under the above definition of 1 ‘ ownership. ’ ’
But a trustee of property conveyed to him for the purpose of carrying out the trust declared does not possess and use the property to the exclusion of others, in the sense that that phrase is used in the above definition; he is but the holder of the legal title. “His is not a property right, but a legal duty founded on personal confidence; his estate is not that which can be enjoyed, but a power that may be exercised” (Arnold v. Southern Pine Lumber Co., 58 Tex. Civ. App. 186 [1909], 123 S. W. 1162), “the equitable estate and beneficial interest, the use and enjoyment of the property or its proceeds, is in the cestui que trust” (Blackstone’s Commentaries, 328; Blake v. O’Neal, 63 W. Va. 483; 16 L. R. A. (n. s.) 1147, 61 S. E. 410, “and, under the system now generally prevailing, the cestusi que trust is regarded as the real owner of the property” (39 Cyc. 203).
Speaking of the equitable estate owned and enjoyed by the cestui que trust, the supreme court of California, in the case of Title Ins. Co. v. Duffill, 191 Cal. 629, 218 Pac. 14, said: Such estates “are in equity 'what legal estates are in law; the ownership of the equitable estate is regarded by equity as the real ownership, and the legal estate is, as has been said, no more than the shadow always following the equitable estate, which is the substance” — citing 1 Pomeroy on Equity Jurisprudence, 4th ed., Art. 147; Underhill on Trusts and Trustees, 4th ed., p. 6, Art. 2. (See, also, Watson v. City of Boston, 209 Mass. 18, 95 S. E. 302.)
It follows that the town of Cascade, the owner of the equitable estate in the “fund,” of which a part has been but temporarily, and of necessity, invested in the land in question, is the owner of this “property” within the meaning of the constitutional provisions quoted above.
3. It is the situation or character of the beneficial owner, the holder of the equitable title or estate, and not that of the holder of the legal title, which determines the question of exemption from taxation under our constitutional provisions and those of like import. (Norton’s Exrs. v. City of Louisville, 118 Ky. 836, 82 S. W. 621; Watson v. City of Boston, supra; Montgomery v. Wyman, 130 Ill. 17, 22 N. E. 845; Ellsworth College v. Emmett County, 156 Iowa, 52, 42 L. R. A. (n. s.) 530, 135 N. W. 594; People ex rel. Williamson County v. City of Toulon, 300 Ill. 408, 133 N. E. 709; Passaic Valley Sewerage Commrs. v. Mayor of Jersey City, 93 N. J. L. 427, 108 Atl. 233.)
It seems, therefore, clear that trust funds and trust property generally, while in the hands of the trustees for the beneficial use and enjoyment of a town within the state of Montana, under our present law, must be free from taxation by virtue of the provisions of section 2, Article XII, of the Constitution. The authorities last cited above support this statement.
4. Defendants, however, insist that at the time of the death of August Wedsworth the town was not authorized by law to accept such a bequest. This is true, as sections 5043 and 5044, Revised Codes of 1921, by which organized cities and towns are nowr empowered to accept, receive, own and possess any gift, bequest or donation of any property, real, personal or mixed, was first enacted as Chapter 10 .of the Session Laws of 1917, two years after the death of Wedsworth; but this provision was in full force and effect at the time the decree of distribution was made and entered in 1921. The decree, as entered, carried out the wish of the testator as expressed in his will, and distributed the property to the trustees in fulfillment of the trust created, and for the first time, in 1921, the trust became active. Under section 10328, Revised Codes of 1921, the decree is conclusive “as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal.” No appeal was taken from the decree.
In California, under a like statute, it has been repeatedly held that under these circumstances the validity of the trust is no longer open to question. Thus, in Keating v. Smith, 154 Cal. 186, 97 Pac. 300, the court declared: “The decree of the superior court distributing the residue of the estate to trustees upon certain trusts is a conclusive adjudication of the validity of the disposition made by the testator. (Crew v. Pratt, 119 Cal. 139, 51 Pac. 38; Goldtree v. Allison, 119 Cal. 344, 51 Pac. 561.) And it is equally conclusive as an ascertainment and adjudication of the terms of the trust, and of the rights of all parties claiming any legal or equitable interest under the will. (Goad v. Montgomery, 119 Cal. 552, 63 Am. St. Rep. 145, 51 Pac. 681; Williams v. Marx, 124 Cal. 22, 56 Pac. 603; More v. More, 133 Cal. 489; 65 Pac. 1044.) The decree supersedes the will; * * * we are, therefore, to look, not to the terms of the will, but to those of the decree of distribution.” This declaration is followed in Luscomb v. Fintzelberg, 162 Cal. 433, 123 Pac. 247, Wills v. Wills, 166 Cal. 529, 137 Pac. 249, Miller v. Pitman, 180 Cal. 540, 182 Pac. 50, and In re Scrimger’s Estate, 188 Cal. 158, 206 Pac. 65.
In answer to the contention here made, after an exhaustive analysis of the authorities, the supreme court of Colorado held that, since the legislature had meanwhile given the city the proper authority, the trust could not be defeated by any incapacity in the city at the time of the testator’s death. (Clayton v. Hallett, 30 Colo. 231, 97 Am. St. Rep. 117, 59 L. R. A. 407, 70 Pac. 429.)
In Hatheway v. Sackett, 32 Mich. 99, it appears that one Hatheway died in 1871, bequeathing a certain sum to the village of New Baltimore for a designated purpose. In 1873 the legislature of Michigan passed an Act (Acts Loe. & Personal 1873, No. 322), enabling the village to accept the bequest. The bequest was upheld upon the ground that authority was vested in the village to accept at the time of distribution.
In the case at bar, the town of Cascade was capable of receiving and accepting the equitable title to the land in question at the time the decree of distribution was made and entered ; the decree was a judicial construction of the will (Miller v. Pitman, supra), and is conclusive as to the validity of the trust created, and- it is therefore immaterial that, at the time of the death of the testator, the town may not have had authority or capacity to accept a gift or bequest.
5. Defendants assert, however, that the judgment is erro neous for the reason that it appears that the town did not have the beneficial use of the property for the year 1922.
As heretofore pointed out, there is nothing in the deed to indicate that the trustees did not secure the immediate possession of the premises on January 5, 1922; the only suggestion to the contrary is found in the allegation of the complaint that prior to the execution of the deed it was agreed that the grantor should have the possession of the premises for that year free of rent. Had proof been adduced in support of this allegation and had the court so found, it may be that the property was assessable to someone for the year 1922, but this case is before us only on the judgment-roll; we have no intimation as to what evidence was introduced other than the recitation in the judgment that “oral and documentary evidence” was introduced. No findings of fact were requested or made.
Under these circumstances, “every finding necessary to support the judgment of the court will be implied on appeal.” (Steiner v. McMillan, 59 Mont. 30, 195 Pac. 836; Croft v. Bain, 49 Mont. 484, 143 Pac. 960; Boe v. Hawes, 28 Mont. 201, 72 Pac. 509; Currie v. Montana Central Ry. Co., 24 Mont. 123, 60 Pac. 989.)
Under the doctrine of implied findings, we must presume that the court found from the evidence that no such agreement was entered into, and that the trustees entered into possession of the property at the time the deed purported to grant to them, and to warrant in them, the immediate possession of the premises and “the rents, issues and profits thereof.”
6. Nor are the defendants aided on their demurrer by the allegation in the complaint of the agreement above referred to. The demurrer was a general demurrer. If the complaint was bad as to the allegations concerning taxes for the year 1922, it was good as to those concerning the taxes for the years 1923 and 1924, and the demurrer was therefore properly overruled. (Rumney v. Skinner, 64 Mont. 75, 208 Pac. 895; Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454; Cassidy v. Slemons & Booth, 41 Mont. 426, 109 Pac. 976; Solem v. Connecticut Fire Ins. Co., 41 Mont. 351, 109 Pac. 432; Donovan v. McDevitt, 36 Mont. 61, 92 Pac. 49; Collier v. Ervin, 2 Mont. 335.)
The court did not err as to the matters specified. The judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.
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JUSTICE HARRISON
delivered the Opinion of the Court.
This is an appeal from the Fourth Judicial District, County of Missoula, the Honorable John S. Henson presiding. Appellant Michael Gursky (Gursky) appeals a series of District Court orders denying his request to amend his complaint and add four defendants not named in his original complaint. We affirm.
Gursky was injured on January 4, 1989, when he attempted to enter the Parkside Professional Village building in Missoula, Montana, using a metal walker. The sliding glass door at the entrance of the building opened as he approached, but it closed before he could get through the opening. As it closed, the door struck Gursky’s walker and he fell backward onto the sidewalk, breaking his right hip.
At the time of the accident Gursky, then age 71, was on his way to an appointment with an ophthalmologist whose office was in the Park-side Professional Village building. He was using a walker because a stroke had weakened his right arm and leg in 1986. His wife and granddaughter drove him to the building from his home in Philipsburg, Montana, and were accompanying him to his appointment.
The two women entered the building just ahead of Gursky. They looked back when he fell, but neither of them saw him fall. Both testified in depositions that when they looked back the door was open and not moving.
Gursky filed a complaint in September 1989, naming Parkside Professional Village (Parkside) as defendant and seeking $500,000 in damages for medical expenses, lost ability to work, disability, pain and suffering. He testified at his pretrial deposition that he had been unable to walk since the accident and was confined to a wheel chair. At the time of the trial in January 1992 he was in the hospital and unable to participate.
Gursky alleged in his complaint that Parkside had breached its duty to maintain the door to the building in a condition suitable for its intended purpose; that the door was in an unreasonably dangerous defective condition; and that Gursky’s injuries were proximately caused by this breach of duty and the defective condition of the door.
In its answer, Parkside denied all of Gursky’s allegations. Among its affirmative defenses it alleged that the accident was caused by negligence, fault, strict liability, or breach of warranty on the part of others, including the manufacturer of the door, the general contractor responsible for remodelling the building, the vendor-installer, who also was responsible for maintenance, and the architect who designed the remodelling project.
The District Court set the pre-trial conference for February 20, 1990, and issued a scheduling order. The order required the parties to join other parties and file amended pleadings by June 1,1990, and to file all pre-trial motions by December 15, 1990.
In September 1990, Gursky’s attorney moved to extend this schedule. In his supporting affidavit he testified that during the summer he had twice undergone heart surgery and that he needed additional time to amend the pleadings, join other parties, and line up expert witnesses. He also stated that he had submitted a settlement offer to Parkside “some months ago” and had waited for a counteroffer before incurring additional costs in behalf of Gursky, whom he described as “essentially indigent.”
Parkside opposed the extension on the grounds that it would delay resolution of this matter and increase the cost of defense. Nevertheless, the court granted Gursky’s motion on December 18,1990, stating in its opinion and order that “the interests of justice” would be served by extending the times set in its previous scheduling order. In its revised scheduling order the court required that all parties be joined and all amended pleadings be filed by January 20,1991, and that all pretrial motions be filed by March 15,1991.
On January 9,1991, eleven days before the new deadline expired, Gursky filed an amended complaint adding the following defendants: Besam, Inc., the manufacturer of the door; Tandberg Construction, the contractor for the remodelling project; City Glass, the vendor-installer-maintainer; and Eric Hefty, the architect who designed the remodelling project. All of these entities were named in Parkside’s answer to the original complaint.
Parkside moved on March 12, 1991, to strike the amended complaint on the grounds that Gursky was required to obtain leave of court, or Parkside’s written consent, before filing an amended complaint, and he had failed to do so. Gursky immediately filed a motion to add additional defendants and to vacate the revised scheduling order. The District Court heard this motion on May 28, 1991.
At the May 28 hearing, Gursky’s attorney stated that he had interpreted the court’s revised scheduling order of December 18, 1990 as permission to join additional defendants. Parkside’s attorney objected to further extensions, pointing out that under the Comb’s revised scheduling order, Gursky had thirteen months to join additional defendants and conduct discovery. Judge Henson denied Gursky’s motion to add defendants and amend the complaint, commenting that “increasingly in the past six months, people are stipulating to revised scheduling orders, and so forth. And, once again, it seems that the attorneys are controlling the court’s calendar.”
On June 4, 1991, the District Court granted Parkside’s motion to strike Gursky’s amended complaint, based on two grounds: (1) under Rule 15(a), M.R.Civ.P., Gursky could amend his complaint only with the court’s permission or written consent of the other party, and Gursky had neither; and (2) under Uniform District Court Rule 2, Gursky was required to file an answer to Parkside’s motion to strike the amended complaint but had not done so.
Gursky appealed the District Court’s order of June 4, but on August 13,1991, this Court granted Parkside’s motion to dismiss the appeal. In September 1991, the District Court ruled on the motion for summary judgment that Parkside had filed in December 1990, granting summary judgment with respect to all theories of liability except negligence. Gursky then filed a new complaint, on November 15, 1991, naming Besam, Inc., City Glass, and Tandberg Construction as defendants.
A jury trial was held on the issue of Parkside’s negligence on January 2, 1992. After six days of testimony, the jury found that Parkside was not negligent. Gursky moved for a new trial, alleging as errors the court’s refusal to allow joinder of all defendants and its refusal to instruct the jury that absent parties could not be blamed for Gursky’s injuries. The District Court denied this motion on March 6, 1992, and Gursky appealed.
The only issue on appeal is whether the District Court abused its discretion in not allowing Gursky to join additional defendants. Gursky requests that we remand the case to the District Court for a new trial and that he be allowed to join the additional defendants.
The decision to grant or deny a motion to amend a pleading lies within the discretion of the district court, and we will reverse its decision only for an abuse of that discretion. Lindeys, Inc. v. Professional Consultants (1990), 244 Mont. 238, 797 P.2d 920. In certain cases we have concluded that the district court abused its discretion in denying a party leave to amend a pleading, because the court offered no valid reason for denying leave. See Hobble-Diamond Cattle Co. v. Triangle Irrigation Co. (1991), 249 Mont. 322, 815 P.2d 1153; Priest v. Taylor (1987), 227 Mont. 370, 740 P.2d 648; White v. Lobdell (1984), 208 Mont. 295, 678 P.2d 637. “[Ojutright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” White, 678 P.2d at 642 (quoting Foman v. Davis (1962), 371 U.S. 178, 181-82, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222, 226).
Here, however, the District Court had a valid reason for denying leave to amend the complaint, though this was expressed in its order granting Parkside’s motion to strike the amended complaint and not in its order denying leave to amend. Under Rule 2, Uniform District Court Rules, failure to file an answer to a motion within ten days “shall be deemed an admission that the motion is well taken.” Gursky failed to answer Parkside’s motion to strike his amended complaint; therefore, the District Court had the authority to grant the motion and did not abuse its discretion in so doing.
The District Court accommodated Gursky by extending the time in which he could amend his complaint, despite Parkside’s objections. Having granted that extension, the court did not abuse its discretion in denying further extensions.
AFFIRMED.
JUSTICES GRAY, McDONOUGH and WEBER concur.
|
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ORDER
On October 29, 1992, this Court ordered that the name of Joe J. McKay be stricken from the rolls of attorneys licensed to practice law in Montana because of his failure to comply with the rules for Mandatory Continuing Legal Education (CLE) for the year 1991.
The Court is now informed by the Montana CLE Administrator that Joe J. McKay has submitted a CLE affidavit which meets the compliance requirements for 1991.
IT IS HEREBY ORDERED that the name of Joe J. McKay shall be reinstated to the rolls of attorneys licensed to practice law in Montana. The Clerk of this Court shall mail copies of this order to Joe J. McKay, to all Clerks of the District Court of Montana, the Federal District Court of Montana, and to the State Bar of Montana.
DATED this 23rd day of March, 1993.
/S/ JOHN CONWAY HARRISON, Acting Chief Justice
/S/ WILLIAM E. HUNT, SR., Justice
/s/ r. c. McDonough, justice
/S/ TERRY N. TRIEWEILER, Justice
/S/ FRED J. WEBER, Justice
|
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] |
MR. JUSTICE HARRISON
delivered the opinion of the Court.
This is an appeal from a decree adjudicating property rights, a cash award, and attorney fees following a divorce entered in the District Court of the Eighth Judicial District, Cascade County, the Honorable Joel G. Roth presiding.
The issues for review are:
1. Did the trial court abuse its discretion in making a division of property between the parties?
2. Did the court err in awarding Mrs. Dahl attorney fees?
3. Did the trial court err in awarding Mrs. Dahl monies borrowed by her from her father to pay a mortgage and medical expenses, when Mr. Dahl was said to be responsible and failed to pay?
The parties in this action were married in 1956. Five children were born of the marriage, two of whom were minors at the time of the trial court’s judgment on April 30, 1979. In November 1974, a decree was entered granting the parties a divorce and deferring matters of support and property settlement pending further hearings. No appeal was taken from that decree.
Prior to the entry of the decree, an order was entered by the court directing Mr. Dahl to pay the sum of $500 for child support and also to make the house payment.
In 1976, following a hearing, findings of fact, conclusions of law, and an order were entered, providing for support, custody, and the division of the property. Mrs. Dahl appealed from that order, and this Court remanded the case for further proceedings. Dahl v. Dahl (1978), 176 Mont. 307, 577 P.2d 1230.
Thereafter, following a hearing, the trial court entered findings of fact, conclusions of law, and judgment on April 30, 1979. This judgment made a property division; required Mr. Dahl to pay back child support; directed that he pay Mrs. Dahl’s father certain sums; awarded Mrs. Dahl attorney fees; granted Mrs. Dahl the custody of the minor children; and provided for support. From this order Mr. Dahl appeals.
In the earlier case on appeal before this Court we: (1) ordered a new trial on the issue of back support; (2) directed the lower court to make findings as to why attorney fees were not awarded; and (3) directed a new trial on the issue of the division of the property.
We found in our previous opinion with regard to the property division that there was no competent evidence of the value of some of the principal items of the marital property, i. e., Dahl’s Wrecking Service and property used in connection therewith. In addition, although the parties had been ordered to turn over specified financial records to a certified accountant approved by the court, this was never done; and the appraisal submitted by Mr. Dahl’s accountant was not certified but was prepared by that accountant on the basis of information supplied only by Mr. Dahl.
Following remand, the District Court entered new findings of fact, conclusions of law and judgment. Interestingly enough, the property was divided essentially in the same way as before — Mrs. Dahl received the house, and Mr. Dahl received the business property subject to some liens. In this instance, however, Mr. Dahl appears as appellant rather than as respondent.
In the second hearing before the District Court, Mr. Dahl did not appear or supply any information to assist the trial court in reaching a proper and just settlement of the parties’ property. The problem that caused the appeal to be made in the first instance was Mr. Dahl’s failure to comply with the District Court’s order to supply adequate figures concerning the business worth of his property. This Court noted in its earlier opinion that the District Court did not have competent evidence to establish the value of the Dahl Wrecking Service. On second hearing, Mr. Dahl again failed to supply the necessary records, although ordered to do so by the District Court. He also failed to return certain business records delivered to him by Mrs. Dahl despite an agreement to do so.
At the hearing on remand, Mr. Dahl failed to submit any business records showing what happened to the business assets other than the land and the building. He failed to appear and to testify at the hearing, as previously noted. Yet, he now appeals the District Court decision and, in effect, argues that the trial court did not have sufficient evidence to make findings concerning the business. The District Court noted that appellant had failed to present to the court a proper valuation figure for the business, but on the basis of the information presented, the court fairly divided the parties’ marital property. The court found that Mrs. Dahl needed the house to maintain a reasonable standard of living and provide a home for the minor children; that in view of her income and expenses it was unlikely that she would be able to otherwise provide suitable housing; and that Mr. Dahl, in view of his experience and skills, was capable of earning sufficient income to provide for her needs.
While appellant contends that the District Court’s property division was unfair because his share of the parties’ marital assets is in effect reduced by the amount of various federal and state income tax liens filed against him, we note that these liens represent appellant’s delinquent federal and state income tax obligations primarily for the years 1974 through 1977. The parties were divorced in 1974.
This matter has been pending now for a period of some six years since the time of the original divorce. In considering the total record in both appeals, we find that the failure of appellant Roger Dahl to cooperate with the trial court in this matter is such as to preclude the court from arriving at a better settlement of the marital estate than has now been done. Aanenson v. Aanenson (1979), 183 Mont. 229, 598 P.2d 1120, set forth principles which provide a guide in settling this matter. In Aanenson, we recognized certain principles to be applied, stating:
“Although the District Court may equally divide the marital assets, such a distribution is not mandated by section 40-4-202, MCA. [Citations omitted.] Each case must be looked at individually, with an eye to its unique circumstances. [Citations omitted.]
“A District Court has far reaching discretion in resolving property divisions, and its judgment will not be altered unless clear abuse of discretion is shown. [Citations omitted.] The test for reviewing the District Court’s discretion is: Did the District Court in the exer cise of its discretion act arbitrarily without employment of conscientious judgment, or exceed the bounds of reason in view of all of the circumstances? [Citations omitted.]” Aanenson, 598 P.2d at 1123, 36 St.Rep. at 1528.
After reviewing the findings of fact and conclusions of law set forth by the District Court to settle this matter, we find the above principles support its findings, and they are affirmed.
The second issue before us concerns attorney fees. The District Court found that respondent, Mrs. Dahl, did not have sufficient income to pay her attorney fees. That finding is substantiated by the evidence. No evidence was introduced by Mr. Dahl concerning his current income although Mrs. Dahl testified that he was a good welder and mechanic. Mrs. Dahl made a showing of necessity for the award of fees, and the District Court fairly concluded that appellant should pay her attorney fees.
The third issue concerns the award to Mrs. Dahl the sums of $4,537.18 and $262.00 representing monies borrowed by her from her father to pay mortgage and medical expenses. At the time of the divorce in April 1974, the District Court ordered appellant to make the parties’ monthly house payments in addition to child support for the parties’ children. At the second hearing on this matter, the District Court took judicial notice of this order. Appellant failed to keep these payments current and Mrs. Dahl was required to borrow necessary funds from her father to meet these payments. Over a period of time, her father paid $4,537.18 to Great Falls Federal Savings and Loan to keep his daughter and her family living in the family home.
While appellant argues that there was no agreement on this matter, the fact is that he had been ordered by the court to make the house payments and failed to do so. At the second hearing, Mrs. Dahl’s father produced cancelled checks into evidence showing how much he had advanced in the way of payments to the savings and loan company to keep the family in the family home.
Roger Dahl made the house payments for approximately two years as ordered, but deducted the amounts so paid from what he was ordered to pay as child support. He was given full credit for whatever payments he actually made for either child support or payments on the house, despite the unauthorized manner in which he made these payments. Appellant argues that the trial court converted an alleged deficiency as to the payments into a “property division.” The trial court, in making a property division, not only had the function of dividing the parties’ property between them, but also to make provision for and allocate the responsibility for the payment of debts and obligations regarding such property. Appellant’s obligation to make the house payment related to property awarded to Mrs. Dahl — the house.
Appellant argues that he should not have to make the $4,537.18 payment because his father-in-law has no claim against him for such amount. This argument is beside the point. The District Court did not order appellant to pay his father-in-law, but ordered these payments to be made to respondent, Mrs. Dahl, so that she can live up to an agreement she has with her father to pay these amounts back to him. Appellant’s argument begs the issue because Dahl had been ordered to make the house payments and to pay Mrs. Dahl alimony, which he has failed to do.
Finally, appellant cites Williams v. Budke (1980), 186 Mont. 71, 606 P.2d 515, alleging that this case supports his argument that respondent’s remedy was to use the statutes relating to collecting on judgments for accrued obligations. Williams does not stand for the principle that a person seeking a judgment on a delinquent obligation in a divorce action is limited to only one remedy. The Court in that case noted that there are various means of enforcing orders directing the payment of support money and obligations of divorce. It is proper for the District Court, as was done here, to determine how much was owed and to enter a judgment for such amount; in so doing the court avoids duplicity of proceedings.
As noted in the conclusion of respondent’s brief, this has been a long divorce proceeding to say the least. The parties were divorced in 1974; it is now 1980. It is time that the matter be laid to rest and the proceedings be finally concluded in the interest of justice.
The District Court properly denied the issues appealed from and its decision is hereby affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, SHEA and SHEEHY, concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Karen Graf (Graf) appeals from a summary judgment entered by the District Court, Eighth Judicial District, in which the District Court concluded that, as a matter of law, a defense verdict in the underlying negligence action provided Continental Western Insurance Company (Continental) and Montana Claims Services, Inc. (MCS), with a reasonable basis defense to Grafs subsequent § 33-18-201 et seq., MCA, Unfair Trade Practices Act (UTPA) claim. Grafs motions to reconsider, alter or amend the judgment were denied. We reverse.
Issues on Appeal
¶2 1. Does the jury verdict in favor of the insureds in the underlying case, appealed and later released as part of a settlement reserving bad faith claims, provide Continental and MCS with a “reasonable basis” defense to Karen Grafs subsequent UTPA claim as a matter of law?
¶3 2. Does the jury verdict in favor of the insureds in the underlying case provide Continental and MCS with a “collateral estoppel” defense to Karen Grafs subsequent UTPA claim?
¶4 3. Did the District Court err in determining that all facts raised in Karen Grafs bad faith case were known to her before she settled her underlying claim; and that since she could have brought her allegations of misconduct to the attention of the District Court by way of a Rule 60(b) motion, she is foreclosed from proceeding with at UTPA claim?
¶5 4. Did the District Court err in finding, as a material undisputed fact, that “Continental concluded that the liability of its insureds was not reasonably clear in part based upon the opinions of its trucking expert, Gene Breeden?”
Factual and Procedural Background
¶6 The District Court found the undisputed material facts to be as follows:
1. On October 14, 1994, at approximately 3:00 o’clock, p.m., Plaintiff Karen Graf drove her car southbound on 15th Street and was stopped for a red light at the intersection of 15th Street and River Drive in Great Falls, Montana.
2. On the same date and time, Daniel Armstrong, an employee of the Goosebill Ranch, was driving a semi-truck with two trailers attached and was traveling southbound on 15th Street towards River Drive.
3. While coming down the 15th Street hill, Armstrong was unable to stop and his truck ran through two red lights and rear-ended the vehicle being driven by Mr. Steven Cloutier that was stopped at the second red light.
4. After striking the Cloutier vehicle, Armstrong’s truck struck the rear of Grafs vehicle. Her vehicle was pushed across the intersection of River Drive, where it collided with a semi-tractor/trailer that was proceeding through the intersection.
5. Continental insured the Goosebill Ranch and therefore Daniel Armstrong. Continental retained independent adjusters MCS to assist in adjusting portions of the claim.
6. Because the parties were unable to settle their dispute, Graf filed a lawsuit against Daniel Armstrong, Raymond Romaine, the designated agent of Goosebill Ranch, and the Goosebill Ranch (“Goosebill Defendants”), Cause No. BDV-95-1050.
7. Graf contended that the Goosebill Defendants negligently caused the accident and her injuries. The Defendants denied the allegations of negligence. Graf was represented by Great Falls attorney John Iwen, now deceased.
8. Continental concluded that the liability of its insureds was not reasonably clear, in part based upon the opinions of its trucking expert, Gene Breeden.
9. Grafs case was tried before a jury, the Honorable Kenneth Neill presiding, beginning on May 27,1997. During at least some of the trial, attorney Channing Hartelius assisted attorney Iwen.
10. At trial, Graf moved for a directed verdict at the close of all evidence. Judge Neill denied that motion. Prior to trial, she had moved for summary judgment that was also denied.
11. The jury entered a defense verdict on May 30, 1997.
12. Graf then moved for judgment notwithstanding the verdict and for a new trial. Judge Neill denied both motions on August 18, 1997.
13. Graf timely filed a Notice of Appeal on September 12, 1997.
14. Beginning on January 5,1998, Steven and Sonja Cloutier, who also sued the Goosebill Defendants in a separate action, Cause No. ADV-96-1274, tried their case to a jury, the Honorable Thomas McKittrick presiding. The Cloutiers were represented by Great Falls attorneys Dennis Conner and Channing Hartelius.
15. In the Cloutier case, after the close of all evidence, Judge McKittrick ruled that the Goosebill Defendants were negligent as a matter of law. He entered a directed verdict against the Defendants on the issue of negligence.
16. The jury then awarded the Cloutiers damages on January 15, 1998.
17. Continental paid the amount of the Cloutiers’jury verdict, and the Cloutiers gave the Goosebill Defendants a Satisfaction of Judgment which was filed on June 19, 1998.
18. On September 21,1998, Graf settled her case while it was still on appeal, prior to the time her reply brief would have been due at the Montana Supreme Court.
19. Grafs settlement provided that Graf could reserve an action for “bad faith” against Continental. The Judgment against Graf was released as part of the settlement.
20. On August 23, 1999, attorney John Iwen, who represented Graf in her trial and her appeal, filed this lawsuit, claiming Continental violated § 33-18-242, Mont. Code Ann. and also alleging claims for outrage or intentional infliction of severe emotional distress.
21. After the death of John Iwen, attorney Dennis Conner took over Grafs representation in this lawsuit. Conner’s substitution was filed on October 19, 2000.
Discussion
¶7 1. Does the jury verdict in favor of the insureds in the underlying case, appealed and later released as part of settlement reserving bad faith claims, provide Continental with a “reasonable basis” defense to Karen Grafs subsequent UTPA claim as a matter of law?
¶8 In granting summary judgment to Continental and MCS, the District Court reasoned as follows:
This Court finds that the significance of the jury verdict for the Goosebill Defendants, and the special place of the jury as the final arbiter of fact in our constitutional system, provides Continental and MCS with a reasonable basis defense, as a matter of law. Further, no UTPA claim will lie under the material undisputed facts here. In short, Graf cannot now bring a statutory bad faith lawsuit claiming liability was reasonably clear when a jury has decided just the opposite.
In our justice system, the jury serves as the final arbiter of the facts, “charged with weighing the evidence, judging the credibility of the witnesses, and reaching a verdict” in each case. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 625 (1991). Montana’s Constitution reflects the important role of the jury in this state’s judicial system. See Art. II § 26,1972 Montana Constitution. This Court will not second-guess the jury’s verdict in Grafs underlying case.
¶9 Graf contends that the District Court’s requirement that a plaintiff establish liability as a prerequisite to asserting a bad faith claim is contrary to § 33-18-242(6)(b), MCA, which only requires settlement as a condition precedent to bad faith litigation.
¶10 Continental and MCS contend that “the law provides for factual disputes to be decided by a jury, and that was done in this case;” “that the jury, entrusted with deciding the facts, the credibility of the witnesses, and liability-ultimately confirmed the insurer’s conclusion;” and that to allow a UTPA claim to proceed in the face of the jury’s verdict would “eviscerate the jury’s role in our system of justice.”
¶11 We agree with Graf.
¶12 The District Court’s ruling is based on an assumption that a bad faith or UTPA claimant seeks to relitigate the underlying claim; that the issues in the underlying negligence claim and the issues in the UTPA claim are the same and, thus, if a jury has rendered a verdict adverse to the claimant in the underlying suit, those issues have been necessarily and conclusively resolved. This assumption is incorrect. The issues in a UTPA claim are separate from the issues in the underlying claim. In Klaudt v. Flink (1983), 202 Mont. 247, 252-53, 658 P.2d 1065, 1067-68, we held:
The obligation to negotiate in good faith and to promptly settle claims does not mean that liability has been determined. Section 33-18-203(6) states that the insurer’s obligation arises when liability has become “reasonably clear.” In evaluating the insurance case, the jury must determine whether the insurer negotiated in good faith given the facts it then had. This consideration is separate and apart from the jury’s ultimate consideration of the merits of any given action. [Emphasis added.]
¶13 The District Court erred in reasoning that a UTPA claimant must first establish liability on the underlying claim and that an adverse jury verdict necessarily defeats such a claim. This reasoning flies in the face of the UTPA which provides, “[a] third-party claimant may not file an action under this section until after the underlying claim has been settled or a judgment entered in favor of the claimant on the underlying claim.” Section 33-18-242(6)(b), MCA. As we held in Safeco Ins. Co. v. MT Eighth Jud. Dist., 2000 MT 153, ¶ 28, 300 Mont. 123, ¶ 28, 2 P.3d 834, ¶ 28:
Section 33-18-242(1), MCA, expressly provides that an UTPA claim against an insurer is an independent cause of action. See Fisher, 1999 MT 308, ¶ 16, 297 Mont. 201, ¶ 16, 991 P.2d 452, ¶ 16. We agree with Safeco that a third-party claimant who wishes to bring such an independent action under UTPA is required, by statute, to wait until “after the underlying claim has been settled or a judgment [is] entered in favor of the claimant on the underlying claim.” See generally Peris v. Safeco Ins. Co. (1996), 276 Mont. 486, 491-92, 916 P.2d 780, 784 (discussing legislative intent of subsection (6)(b)). The language of the statute itself provides the underlying reasoning. Only those third-party claimants who are able to achieve a settlement or prevail at trial may, in turn, bring an UTPA action-meaning meritless UTPA claims are theoretically extinguished before a claim is ever filed. The provision serves to both protect insurers from frivolous claims and facilitate judicial economy.
¶14 Similarly, in Lough v. Insurance Co. of North America (1990), 242 Mont. 171, 789 P.2d 576, the district court granted summary judgment in a UTPA suit in favor of the defendant Liberty Mutual. The dispositive issue presented on appeal was whether a third-party claimant may maintain a bad faith action against an insurer after settling with the insured when liability was not established in the underlying case. In reversing the summary judgment we held:
Section 33-18-242(6)(b), MCA, requires settlement or entry of judgment on the underlying claim prior to instigation of the bad faith claim. That section does not require that liability of the insured be established as a condition precedent to the bad faith litigation.
Appellant in this case alleges violations of subsection 4, which requires no showing of reasonably clear liability, and subsection 6, which does. The District Court erred in granting respondent’s motion for summary judgment on the basis that appellant failed to establish reasonably clear liability prior to suit. We reverse and remand for further proceedings consistent with this opinion.
Lough, 242 Mont. at 174-75, 789 P.2d at 578.
¶15 In conclusion, the issues in a UTPA claim are separate and distinct from the issues in the underlying suit. In the underlying negligence suit, the issue was whether the defendant Armstrong negligently caused the accident resulting in injury to Karen Graf. In the UTPA claim, the issue is whether the insurance carrier conducted a reasonable investigation and attempted in good faith to effectuate settlement of the claim when liability had become reasonably clear. Under the UTPA, a claimant does not have to establish liability in the underlying suit; a settlement of that claim is sufficient. A defense verdict in the negligence suit is not tantamount to a jury finding that the insurer did not violate the UTPA. Accordingly, a jury verdict for the defense in the underlying suit does not, as a matter of law, establish a “reasonable basis” defense under § 33-18-242(5), MCA.
¶16 Graf argues that a ruling that a defense verdict, as a matter of law, provides a reasonable basis defense to a subsequent UTPA claim, promotes the claim settlement abuses the UTPA was designed to deter. We agree.
¶17 The District Court’s rationale assumes that a defense verdict will always be the result of complete disclosure of all facts relevant to a UTPA claim and was not procured through obfuscation or half-truths. The UTPA standards focus on what the insurer knows at a particular point in time-before trial, during the investigative settlement stage. As we noted in Klaudt, “[i]n evaluating the insurance case, the jury must determine whether the insurer negotiated in good faith given the facts it then had. This consideration is separate and apart from the jury’s ultimate consideration of the merits of any given action.” Klaudt, 202 Mont. at 253, 658 P.2d at 1067-68. Unless one assumes that the jury in the negligence suit was aware of everything in the claims file during the investigative and settlement negotiation stages, there is no basis for concluding (as the District Court did) that the jury’s verdict necessarily resolves all fact issues under the UTPA. Such an assumption is entirely unwarranted. Juries in negligence suits are not privy to all the investigative reports, evaluations and correspondence that find their way into claims files.
¶18 The UTPA is designed to address these very inquiries; that is, was there a reasonable investigation and did the insurer make a good faith attempt to effectuate a prompt and fair settlement of a claim in which liability had become reasonably clear? Section 33-18-201(6), MCA. The District Court’s holding puts an insurer in the self-serving position of violating these prohibitions, thereby obtaining a defense verdict on the underlying claim and using that defense verdict as a basis to seek dismissal of a subsequent UTPA claim. If, as a matter of law, a defense verdict constitutes a defense to a UTPA claim, insurers are encouraged to obtain defense verdicts at any cost knowing that, in doing so, they will have shielded themselves from UTPA scrutiny. Such a precedent would defeat the public policy embodied in the UTPA-that is, insurer conduct is to be retrospectively measured against the standards adopted by the Legislature in enacting the UTPA. We reverse the District Court’s conclusion that a defense verdict in Grafs underlying negligence claim establishes, as a matter of law, that Continental and MCS had a “reasonable basis” defense under § 33-18-242(5), MCA.
¶19 2. Does the jury verdict in favor of the insureds in the underlying case provide Continental and MCS with a “collateral estoppel” defense to Grafs UTPA claim?
¶20 The District Court held that when, during the pendency of her appeal, Graf chose to settle her claim and dismiss her appeal to this Court, the judgment became final and she was collaterally estopped from “relitigating Armstrong’s liability” through a UTPA claim.
¶21 The District Court reasoned that since there was a final judgment on the merits in the underlying case and since the defendants in that case and in the UTPA suit are in privity, “all the elements of collateral estoppel” are clearly met. We have, however, applied a three-part test to determine if collateral estoppel works as a bar to subsequent litigation: (1) Was the issue decided in the prior adjudication identical with the one presented in the action in question? (2) Was there a final judgment on the merits? (3) Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication? Rausch v. Hogan, 2001 MT 123, ¶ 16, 305 Mont. 382, ¶ 16, 28 P.3d 460, ¶ 16. The District Court failed to recognize that the first criterion (identity of issue) is missing. The two suits present separate and distinct issues. The question in the underlying suit was whether Armstrong and/or Goosebill were negligent and whether that negligence caused damage to Graf. The question in the UTPA suit is whether the insurer’s conduct ran afoul of the unfair claim settlement practices enumerated in § 33-18-201, MCA, specifically subsections (4), (6) and (13). The fallacy of the District Court’s conclusion that Graf is collaterally estopped from “re-litigating Armstrong’s liability” is most apparent from the text of subsection (4) which provides that it is an unfair claims settlement practice to “refuse to pay claims without conducting a reasonable investigation based upon all available information.” Unlike subsections (6) and (13), subsection (4) is not linked to a showing of “reasonably clear liability” in the underlying suit. Since liability (whether reasonably clear or not) is not a factor in subsection (4), one does not have to “re-litigate” the question of liability in pursuing the UTPA claim.
¶22 Continental and MCS argue that, although Graf did not litigate the issue of bad faith in the negligence suit, it “could have been raised” and thus the identity of issue criterion is satisfied. Hall v. Heckerman, 2000 MT 300, ¶ 15, 302 Mont. 345, ¶ 15, 15 P.3d 869, ¶ 15. This argument does not withstand analysis. We have held that “a third-party claimant who wishes to bring such an independent action under UTPA is required, by statute, to wait until ‘after the underlying claim has been settled or a judgment [is] entered in favor of the claimant on the underlying claim.’ ” Safeco Ins. Co., ¶ 28. If bad faith claims against the insurer can and “should” be litigated in the underlying negligence suit, a plaintiff who fails to litigate such claims at that level will be collaterally estopped from pursuing a UTPA claim. Such a result would be anomalous given that the UTPA does not allow claims to be filed until the claimant has either settled the underlying claim or obtained a verdict. Section 33-18-242(6)(b), MCA. Rhetorically, why would the UTPA allow bad faith claims to be filed only after settlement or judgment for the claimant if (as Continental posits) the claimant were required to already have litigated the issue of bad faith in the underlying suit? Since Grafs alleged UTPA violations were not issues which “could have been raised” in the negligence suit, there was no identity of issues.
¶23 We hold that the defense verdict in the underlying negligence suit does not collaterally estop Graf from pursuing a UTPA claim against Continental and MCS.
¶24 3. Did the District Court err in concluding that, since Graf failed to raise the issue of insurer misconduct in a Rule 60(b) motion in the underlying suit, she is now precluded from pursuing a UTPA claim?
¶25 The District Court held that:
[TJhe alleged misconduct that forms the basis of Grafs UTPA claim became known to Graf before she settled her underlying case. She could have brought these allegations of pre-trial and trial misconduct to the attention of the trial court by way of a Rule 60(b) motion. By settling the underlying case, Graf is estopped from using these allegations as a basis for a bad faith claim.
¶26 This conclusion suffers from the same fallacy set forth above-that is, the District Court mistakenly assumes that the allegations of UTPA violations are properly litigated in the underlying negligence suit. The UTPA suit focuses on whether the insurer conducted a reasonable investigation and attempted in good faith to effectuate a prompt, fair and equitable settlement. Section 33-18- 201(4) and (6), MCA. These are not issues which can or should be litigated in a negligence suit for personal injuries.
¶27 4. Did the District Court err in finding that Continental concluded that the liability of its insured was not reasonably clear in part based upon the opinions of its trucking expert, Gene Breeden?
¶28 In its opinion, the District Court noted that Continental relied in part upon its trucking expert, who concluded that Armstrong was not at fault and did not cause the accident. Graf contends that this conclusion was in error because the record shows that Continental’s beliefs as to liability were far from undisputed. In response, Continental states that it has not argued, and the District Court did not rule, that Breeden’s opinion provides an absolute defense to Grafs UTPA claim. Rather, “[i]t is the jury’s defense verdict, or in the alternative, collateral estoppel, that forms the basis of Continental’s defense and the District Court’s ruling.” We agree with Continental that this appeal can be resolved by addressing the legal significance of the defense verdict, including the issue of collateral estoppel. We need not address the weight to be accorded to the expert testimony of Mr. Breeden.
¶29 Reversed and remanded for further proceedings consistent with this opinion.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER, COTTER and RICE concur.
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JUSTICE WARNER
delivered the Opinion of the Court.
¶ 1 Levi Brandon Richeson (Richeson) was convicted by a jury of four counts of sexual intercourse without consent, § 45-5-503(3)(a), MCA (1999), and of three counts of unlawful transactions with minors, § 45-5-623(l)(b), MCA (1999), in the Eighth Judicial District Court, Cascade County. During jury selection, Richeson’s trial counsel moved to disqualify a juror for cause based on the juror’s employment as a detention officer. The District Court denied Richeson’s motion. Richeson appeals this denial and also argues that he was given ineffective assistance of counsel because his trial counsel failed to advance the statutory criteria of a guardian-and-ward relationship, § 46-16-115(2)(b), MCA (1999), to remove the juror for cause. We affirm the decision of the District Court.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court properly exercise its discretion when it denied Richeson’s challenge of a juror for cause based on the juror’s employment as a detention officer?
¶4 2. Was Richeson’s trial counsel ineffective because he did not rely on the statutory provision defining guardian-ward relationship to challenge potential Juror Arndt for cause?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On September 20,2001, the State of Montana filed an Information charging Richeson with four counts of sexual intercourse without consent, felonies, in violation of § 45-5-503(3)(a), MCA, and three counts of unlawful transactions with minors, misdemeanors, in violation of § 45-5-623(l)(b), MCA. On February 25 and 26, 2002, the District Court conducted a jury trial, after which the jury found Richeson guilty of all charges.
¶6 The District Court conducted a sentencing hearing on June 19, 2002, and thereafter sentenced Richeson to four ten-year consecutive sentences for the convictions of sexual intercourse without consent and three six-month consecutive sentences for the convictions of unlawful transactions with minors.
¶7 According to trial testimony, over a two-day period, on April 17 and 18, 2001, Richeson, then age twenty-two, supplied beer and marijuana to two minors, then ages thirteen and fourteen, both runaways at the time. Richeson also rented rooms at two hotels over this same two-day period and engaged in sexual intercourse twice on April 17 and twice on April 18 with the thirteen year old girl (K.W.).
¶8 On April 19, K.W. returned to school. The school immediately notified KW.’s parents of her whereabouts. K.W. eventually confided in her parents that she and Richeson had engaged in sexual intercourse. K.W. thereafter reported this information to Detective Scheele of the Great Falls Police Department, which led to Richeson’s arrest.
¶9 During voir dire proceedings the State notified the District Court that potential juror, Jessica Arndt (Arndt), was employed as a guard at the detention center and could potentially know Richeson through her employment. Upon questioning by the State in open court as to whether Arndt knew anybody involved in Richeson’s case, Arndt responded, "I know the defendant.” The District Court then conducted a sidebar conference and decided that further questioning of Arndt should be in chambers, outside the presence of the entire jury panel.
¶10 In chambers, the following dialogue occurred between Arndt and Richeson’s counsel:
Q: Thank you. First of all, for the record, would you state how you know Levi Richeson?
A: I am a detention officer.
Q: With your employment are you aware of his current status?
A: Just that he’s on trial now, that he’s being held in the jail.
Q: You’re aware that he’s in custody? Do you know anything about the details of his custody?
A: No, I don’t.
Q: Does the fact that he’s in custody interfere with your ability as you see it, to be able to sit as a juror in this case?
A: I don’t think it would.
Q: You think you would have the ability to proceed even with the knowledge that he is being held in custody?
A: Uh-huh.
Q: If you were sitting in Mr. Richeson’s place and you were sitting on the jury knowing what you know about Mr. Richeson, would you want yourself on the jury?
A: No.
¶11 Richeson’s counsel then moved the District Court to remove Arndt for cause. Prior to the District Court ruling on the motion, the State questioned Juror Arndt. The following dialogue took place between the State and Arndt:
Q: Have you dealt with him personally?
A: No.
Q: Have you ever talked, spoken with him or talked with him at all?
A: No.
Q: You just know he’s in custody?
A: Uh-huh.
Q: You wouldn’t want yourself as a juror. Does that apply to any criminal defendant, not specific to this?
A: No.
Q: There’s no reason for you saying that other than just your own?
A: Uh-huh.
Q: You just say that because of your job and duties and everything else?
A: Uh-huh.
Q: Good. If you’re picked as a juror, you would have to pay attention to the facts and testimony and be impartial. Can you do that?
A: Yes.
Q: Okay. So when you say you wouldn’t want yourself as a juror, that’s basically because of your personality trait that basically you’re giving us, not something that you cannot separate yourself from; is that correct?
A: Correct.
Q: So is there any reason you could not be a juror today, why you couldn’t be fair?
A: No.
Q: Could you take that oath to be honest and weigh the facts fairly?
A. Yes.
¶ 12 Following this exchange, the State objected to Richeson’s counsel’s motion to remove Arndt for cause. The District Court then questioned Arndt:
Q: All right. Well, Ms. Arndt the bottom line here is whether or not you’ll be able to give both the State and the defendant a fair trial here. [Do you think] that’s something you can do ...?
A: I can. I can do it if you ask me to, yes.
Q: If you are selected you’ll be given instructions to do that. Is that something that you can follow?
A: Yes.
¶13 The District Court denied Richeson’s motion to remove Juror Arndt for cause. Richeson then requested that the Court instruct Arndt to refrain from any conversation with other jurors about her work capacity or any relationship she may have with Richeson stemming therefrom. The District Court granted the motion and instructed Arndt accordingly. The State and Richeson each used their allotted peremptory challenges, Richeson using his last peremptory challenge to strike Arndt from the panel.
STANDARD OF REVIEW
¶14 We review denial of a challenge to dismiss a juror for cause for abuse of discretion. State v. Falls Down, 2003 MT 300, ¶ 17, 318 Mont. 219, ¶ 17, 79 P.3d 797, ¶ 17 (citation omitted). Because of the right to a trial by an impartial jury, Art. II, Sec. 24, Mont. Const., and the great expense and inconvenience that results from retrial, dismissal for cause is favored when a serious question arises about a juror’s ability to be impartial. State v. Freshment, 2002 MT 61, ¶ 11, 309 Mont. 154, ¶ 11, 43 P.3d 968, ¶ 11 (citations omitted).
¶15 To determine whether to dismiss a juror for cause, trial courts are guided, in part, by § 46-16-115(2)(b) & (j), MCA, which provides:
(2) A challenge for cause may be taken for all or any of the following reasons or for any other reason that the court determines:
(b) standing in the relation of guardian and ward, attorney and client, master and servant, landlord and tenant, or debtor and creditor with or being a member of the family or in the employment of the defendant or the person who is alleged to be injured by the offense charged or on whose complaint the prosecution was instituted.
(j) having a state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.
¶16 Challenges for cause asserted pursuant to § 46-16-115(2)(j), MCA, are to be granted or denied pursuant to both the statutory language and the totality of circumstances presented. State v. Heath, 2004 MT 58, ¶ 16, 320 Mont. 211, ¶ 16, 89 P.3d 947, ¶ 16. Abuse of discretion occurs if a court fails to excuse a prospective juror if actual bias is discovered during voir dire. Freshment, ¶ 12. If a court has abused its discretion in granting or denying a challenge for cause, we then determine whether a conviction should be set aside as a result of that error. Falls Down, ¶ 17.
DISCUSSION ISSUE ONE
¶17 Did the District Court properly exercise its discretion when it denied Richeson’s challenge of a juror for cause based on the juror’s employment as a detention officer?
¶18 Richeson contends that the District Court erred in failing to properly assess the circumstantial evidence, which, Richeson argues, revealed that Arndt was inherently prejudiced against him because she was a detention officer. Richeson thus asserts that the District Court abused its discretion in failing to remove Juror Arndt for cause.
¶19 Richeson first alleges that Arndt would have encountered Richeson in jail clothing rather than civilian clothing, and asserts that Richeson’s appearance in such clothing may have a prejudicial effect on Arndt’s judgment during the course of the trial. Richeson relies on the United States Supreme Court decision in Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, for the proposition that Richeson’s appearance in jail clothing at the detention center would be a “constant reminder of the accused’s condition implicit in such distinctive, identifiable attire,” and thus may affect Arndt’s judgment. See Estelle, 425 U.S. at 503-04, 96 S.Ct. at 1692-93, 48 L.Ed.2d at 129-30. Richeson contends that the Estelle Court found such practice to be unconstitutional.
¶20 In Estelle, the defendant, unable to post bond, asked an officer at the jail for his civilian clothing prior to appearing at trial. Denied by the officer of his civilian clothing, the defendant was compelled to wear his prison-issued clothing throughout the trial, whereupon he was convicted as charged. Estelle, 425 U.S. at 503, 96 S.Ct. at 1692, 48 L.Ed.2d at 130.
¶21 The defendant thereafter petitioned for a writ of habeas corpus, arguing that standing trial in his prison-issued clothing was inherently unfair. Estelle, 425 U.S. at 503, 96 S.Ct. at 1692, 48 L.Ed.2d at 130. The United States Supreme Court examined numerous cases that, with few exceptions, determined that a defendant should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption of innocence. Estelle, 425 U.S. at 504, 96 S.Ct. at 1693, 48 L.Ed.2d at 130-31 (citations omitted). The Supreme Court recognized, however, the inappropriateness of a “mechanical rule vitiating any conviction, regardless of the circumstances, where the accused appeared before the jury in prison garb.” Estelle, 425 U.S. at 507, 96 S.Ct. at 1694, 48 L.Ed.2d at 133.
¶22 Relevant to the instant case, Arndt made clear in her responses to defense counsel, the State and the Court, that she believed her employment as a detention officer would have no effect on her ability to render a fair judgment. Richeson’s counsel did not inquire as to whether Arndt actually did see Richeson in jail clothing, the frequency that Arndt may observe Richeson in jail clothing, nor as to what effect such observation, over time, may have upon her ability to offer a fair judgment. Given the lack of such evidence in the record, this Court could only speculate whether any such observation, if indeed it occurred, would prejudice Arndt against Richeson. What the record does reveal is that Arndt believed, from the time that the question was first asked of her, that her employment would have no effect on her ability to render a fair judgment:
Q: Does the fact that he’s in custody interfere with your ability as you see it, to be able to sit as a juror in this case?
A: I don’t think it would.
Q: You think you would have the ability to proceed even with the knowledge that he is being held in custody?
A: Uh-huh.
Q: All right. Well, Ms. Arndt the bottom line here is whether or not you’ll be able to give both the State and the defendant a fair trial here. [Do you think] that’s something you can do ...?
A: I can. I can do it if you ask me to, yes.
Q: If you are selected you’ll be given instructions to do that. Is that something that you can follow?
A: Yes.
¶23 This Court has previously concluded that the bare fact that a potential juror is connected with law enforcement, does not, without more, necessitate a finding of bias resulting in a dismissal for cause. See State v. Radi (1978), 176 Mont. 451, 460, 578 P.2d 1169, 1175 (holding that a potential juror’s status as a public official, and thus legal advisee of the county attorney, does not alone disqualify a public official as a juror); State v. Thomson (1976), 169 Mont. 158, 163, 545 P.2d 1070, 1073 (holding that the defendant was not entitled to remove a juror for cause because of his status as a officer for the Montana Fish & Game Department without a showing of actual bias) (citing State v. Cadotte (1895), 17 Mont. 315, 316, 42 P. 857, 858).
¶24 We have stated that the “widest possible examination should be allowed such person in his examination as a potential juror, and should there be any doubt in the event of a challenge for cause, the trial court should resolve the doubt in favor of allowing the challenge.” Radi, 176 Mont. at 460, 578 P.2d at 1175. In the instant case, the District Court did grant Richeson wide latitude to question Juror Arndt, allowing questioning to occur in chambers. In chambers, Arndt testified that she had never spoken to Richeson nor had any personal dealings with him, but was merely aware of his current status as a detainee and, notwithstanding her employment, could nonetheless follow the law and render a fair judgment. Although this Court has stated that when voir dire examination discloses a serious question about a juror’s ability to be fair and impartial, that such question should be resolved in favor of excusing that juror, Arndt’s testimony simply does not reveal a state of mind in reference to Richeson that would prevent her from acting with entire impartiality and without prejudice to the substantial rights of Richeson. See State v. Williams (1993), 262 Mont. 530, 539, 866 P.2d 1099, 1104 (overruled on other grounds).
¶25 Furthermore, as noted by the State, this is not a similar situation as in State v. DeVore, 1998 MT 340, 292 Mont. 325, 972 P.2d 816, where the jurors in question spontaneously and voluntarily admitted bias against the defendant or an inability to understand or apply the presumption of innocence, and were retained by the district court only as a result of its rehabilitative efforts. DeVore, ¶¶ 15-20 (overruled on other grounds). In the case sub judiee, Arndt did not remotely suggest that she would have a tendency to believe Richeson was guilty or that she would have trouble applying the presumption of innocence simply because she knew Richeson was in detention. Her spontaneous, and thus most trustworthy response, was that she could be fair and impartial. DeVore, ¶ 28; State v. Good, 2002 MT 59, ¶¶ 54-55, 309 Mont. 113, ¶¶ 54-55, 43 P.3d 948, ¶¶ 54-55. Neither did the trial court make any rehabilitative efforts. None were necessary.
¶26 Based upon all of Arndt’s testimony, we conclude that the District Court properly exercised its discretion in refusing to dismiss Arndt for cause based solely on her duties as a detention officer. There exists nothing in the totality of Arndt’s testimony demonstrating that she had formed an opinion on the guilt or innocence of Richeson based upon her employment, nor that her employment would cause her to harbor any actual bias one way or the other. See Freshment, ¶ 12; Heath, ¶ 16.
¶27 Richeson further alleges however, that through her employment, Arndt may also see Richeson shackled, observe his conduct and interaction with other jail guards, feel pressure from her workplace peers should she vote to acquit, and, unlike other jurors, could have continued contact with Richeson if he was convicted and returned to the detention center, knowledge that could affect her judgment and deliberations.
¶28 While bias must sometimes be revealed by circumstantial rather than direct evidence, see State v. Chastain (1997), 285 Mont. 61, 64, 947 P.2d 57, 59-60 (overruled on other grounds by State v. Herman, 2003 MT 149, ¶ 33, 316 Mont. 198, ¶ 33, 70 P.3d 738, ¶ 33), Richeson here attempts to interchange circumstantial evidence with speculation. The record reveals no reason to conclude that such observations and associations would lead Juror Arndt to have a unfavorable rather than favorable opinion of Richeson. In short, Richeson’s speculation falls short of establishing bias via circumstantial evidence. We thus agree with the State that the mere fact that Juror Arndt was a detention officer did not make her automatically biased against Richeson, nor does the record reflect circumstantial evidence of bias. Rather, the record reflects a person who expressed her honest belief that she could be a fair juror to both the State and Richeson.
¶29 It must be remembered that the purpose of voir dire is not only to establish grounds to dismiss a juror for cause, but also to enable counsel to intelligently exercise peremptory challenges. See DeVore, ¶ 30 (citing Great Falls Tribune v. District Court (1980), 186 Mont. 433, 440, 608 P.2d 116, 120). This is a case where no prejudice was shown but there was sufficient information for counsel to decide to use a peremptory challenge. Based on the foregoing, we hold that the District Court did not abuse its discretion in denying Richeson’s motion to remove Arndt for cause.
ISSUE TWO
¶30 Was Richeson’s trial counsel ineffective because he did not rely on the statutory provision defining guardian-ward relationship to challenge potential Juror Arndt for cause?
¶31 In considering ineffective assistance of counsel claims on direct appeal or in postconviction proceedings, we apply the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Pursuant to the Strickland test, the petitioner must show that counsel’s performance was deficient. This requires a showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. In attempting to demonstrate deficient performance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
¶32 Richeson alleges that counsel’s actions were deficient because he “failed to utilize the statutorily implied bias challenge for cause based on the guardian-ward relationship between a jailor and inmate” pursuant to § 46-16-115(2)(b), MCA. Richeson argues that, as prison and jail officials must ensure that inmates receive proper clothing, shelter, food and medical care, and because Montana statutes create specific offenses and penalties for guards who mistreat or abuse inmates, that a detention center guard such as Arndt assumes the responsibility of a guardian. Citing to State ex rel. Middleton v. District Court (1929), 85 Mont. 215, 278 P. 122, Richeson further argues that, as inmates are totally dependent on the state for life’s basic necessities, that their status is that of a ward to the state, and thus, a ward of prison or detention guards within their prison or jail facility.
¶33 Richeson thus contends that no tactical reason could exist for failing to use a statutorily defined bias to help remove a juror where defense counsel has already moved to strike the juror for cause. Richeson asserts that a citation to § 46-16-115(2)(b), MCA, “would have forced the court to determine whether a guardian-ward relationship existed,” and, assuming it found such a relationship, it then would have been required to grant Richeson’s motion to remove Arndt for cause.
¶34 We agree with Richeson that the statutes and case law requiring correctional facilities to meet the basic needs of prisoners serve to benefit the prisoners and society as a whole. However, notwithstanding that the law requires certain standards from correctional facilities and individual guards and detention officers, such standards, no matter how strict, do not create an implied guardian-ward relationship between prisoners and individual guards. ¶35 A guardianship is a creature of the law and a guardian maintains no authority, rights or duties except those conferred or imposed by the law. Montana law authorizes numerous types of guardianships. See § 40-4-205, MCA (authorizing the court in subsection (1) to appoint an attorney to represent a minor in a proceeding for the dissolution of marriage, legal separation, or other proceeding involving child support, custody and visitation, and delineating specific duties and authority of the guardian in subsections (2)(3) & (4)); Section 41-3-112, MCA (requiring appointment of guardian ad litem in child abuse and neglect proceedings and outlining duties and authority); Section 41-3-444, MCA (authorizing appointment of additional guardian in abuse and neglect proceedings and delineating duties and authority); also see generally Title 72, Section 5, Part 2 (authorizing testamentary and court-appointed guardians for minors in addition to delineating duties and qualifications) and Title 72, Section 5, Part 3 (delineating purpose and authorizing powers and duties for the guardian of an incapacitated person).
¶36 Nowhere does Montana law authorize, much less create, a guardian-ward relationship between individual guards or officers and detainees. Moreover, the basic nature of a guardianship of an incapacitated person requires court involvement, as a determination of incapacitation must be made prior to the appointment of a guardian. Section 72-5-101(1), MCA, defines “incapacitated person” as follows:
“Incapacitated person” means any person who is impaired by reason of mental illness, mental deficiency, physical illness or disability, chronic use of drugs, chronic intoxication, or other cause (except minority) to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person or which cause has so impaired the person’s judgment that he is incapable of realizing and making a rational decision with respect to his need for treatment.
¶37 Not only may the legislature regulate and define duties and obligations of guardians, but the guardian must also submit personally to the jurisdiction of the court in any proceeding relating to the guardianship, and the guardianship continues even if the guardian moves. See, e.g., § 72-5-202(1) & (2), MCA. A guardian may apply to the court for instructions or the construction of written instruments connected with the discharge of the guardian’s duties. Likewise, a ward may apply to the court for the removal of a guardian or the guardian may petition the court to accept his or her resignation. The court may grant the request if, after a hearing, the court determines that removal of the guardian is in the best interests of the ward. See § 72-5-325(1), MCA.
¶38 In the case of a prisoner, there is no prior judicial determination as to whether such person falls under the statutory definition of “incapacitated person,” nor is there an appointment of a guardian who is under the direct supervision of the court. A prison guard or detention officer may not apply to the court for instructions or aid in constructing a legal document on behalf of any detainee, nor is there any process by which a guard, detention officer or prisoner may apply to the court for a termination of such alleged guardianship duties.
¶39 We thus conclude that, notwithstanding any constitutional or statutory responsibilities a detention officer or guard may have toward a detainee, such responsibilities do not meet the requirements of a guardian-ward relationship. Given this conclusion, we hold that Richeson’s counsel did not fall below an objective standard of reasonableness, and thus, did not provide ineffective assistance of counsel in not moving to challenge Arndt for cause under § 46-16-115(2)(b), MCA.
¶40 The decision of the District Court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON and REGNIER concur.
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Russell Pannoni (Pannoni) appeals the decision of the District Court upholding a Montana Human Rights Commission (the Commission) decision affirming a decision reached at a Department of Labor and Industry (the Agency) hearing regarding Pannoni’s employment termination. The Board of Trustees, Browning School District No. 9 (acting through its Board of Trustees, collectively called the School), Superintendent Steve Smyth (Smyth), and District Personnel Director Ken Werner (Werner) cross-appeal the court’s denial of costs. We affirm.
¶2 The issues on appeal are as follows:
¶3 1. Whether the District Court erred in affirming the Agency’s conclusion that Pannoni was not a qualified individual with a disability ?
¶4 2. Whether the District Court erred in affirming the exclusion of medical evidence at the Agency hearing?
¶5 3. Whether the District Court erred in affirming the Agency’s decision regarding the School’s post-termination actions?
¶6 4. Whether the District Court erred in denying Pannoni’s request to present additional evidence?
¶7 5. Whether the District Court erred when it did not award costs to the School, Smyth, and Werner?
Factual and Procedural Background
¶8 Pannoni worked as a teacher in Browning School District No. 9 for a total of sixteen years. The School is a public school district which operates a high school, a middle school, three elementary schools, and two rural schools. The School is located in a sparsely-populated, isolated region, near the Canadian border on the Blackfeet Indian Reservation, with few medical and shopping services. Its students are considered “at risk,” meaning the School has lower achievement and proficiency levels and higher drop-out rates than are normal or acceptable. The at-risk student population makes teaching more difficult and historically the School loses some teachers during each school year to voluntary termination.
¶9 Most School teaching positions are full-time with the teachers required to work a total of 187 days per year. The School hires teachers to work where assigned with no permanent assignments to individual schools. The School has a difficult time finding certified teachers to fill part-time positions or to serve as substitutes. As a result, the School often has to utilize uncertified substitutes to fill vacancies. Because of the difficulty the School has recruiting qualified teachers, it ordinarily seeks to recruit new teachers and fill openings either before the openings actually exist or during the previous school year. The difficulty recruiting teachers is magnified when the School is forced to fill unanticipated vacancies that occur during the school year.
¶10 The School emphasizes that attendance is an essential function of a teacher’s job. The School views teacher attendance as critical, especially during the first few and last few months of a school year. Pursuant to a collective bargaining agreement between the teachers and the School, each teacher is allowed fourteen days of sick leave per school year out of which each teacher may elect to take up to ten days of personal leave without justification. The School prefers that its teachers not utilize all their personal leave days each year because of the importance of continuity in instruction for the at-risk student population and because of the difficulty finding qualified substitute teachers.
¶11 Pannoni worked for the School as a teacher for many years. Relevant to this case, he worked at Babb Elementary School from 1989 through 1994. In 1994, the School transferred Pannoni to the K.W. Bergen Elementary School in Browning, Montana. Pannoni filed a grievance to fight this transfer because he wished to continue teaching in Babb. In the 1995-1996 school year, Pannoni taught at both Babb and K.W. Bergen. In 1996, Pannoni taught in Babb. During the 1997- 1998 school year, Pannoni taught at Babb. Pannoni was transferred to teach at the Browning Middle School (Middle School) for the 1998-1999 school year. Pannoni did not want to leave his position in Babb and especially did not want to teach at the Middle School. The Middle School was overcrowded, the students were much more difficult to work with than the elementary students at Babb, and the environment at the school was stressful for Pannoni.
¶12 In September of 1998, Pannoni requested a Family and Medical Leave Act (FMLA) leave based on a medical disability. Pannoni’s treating physican, family practitioner Dr. K.J. Taylor, subsequently notified the School by letter that Pannoni had suffered from intermittent depression for years and the transfer to the Middle School worsened his depression so that he was “almost totally dysfunctional.” Dr. Taylor recommended the School transfer Pannoni back to the Babb School or he expected Pannoni would become totally disabled.
¶13 In October of 1998, the School sent a federal Department of Labor form (a Certification of Health Care Provider form) for Dr. Taylor to complete. The School also wanted a second medical opinion. Dr. Michael Newman, a psychiatrist, provided the second medical opinion. After seeing Pannoni in October of 1998, Dr. Newman concluded that, at that time, Pannoni did not suffer from a serious medical condition that rendered him unable to perform his job duties. Although Pannoni was upset and depressed about his transfer to the Middle School, he was also ready to return to work if he could work at the Babb School. Dr. Newman’s conclusion was that Pannoni was not suffering from debilitating depression but that he was instead angry with the School for transferring him. Dr. Newman reported Pannoni had taken prescription antidepressants and/or anti-anxiety medication for only two or three days on two occasions and he had not received counseling.
¶14 In October of 1998, Dr. Taylor sent another letter to the School stating that Pannoni’s condition was unimproved and suggested that he not work for another month. At this time, a certified substitute teacher was hired to work in Pannoni’s place until after Thanksgiving break. In the first week of November, Pannoni notified the School that Dr. Taylor had released him to return to work within a week. Pannoni asked that he be considered for jobs other than that at the Middle School. The School notified Pannoni of the discrepancy regarding Dr. Taylor’s letter which stated Pannoni needed another month off and Pannoni’s statement that he was ready to return to work within a week. At this time, the School requested a third medical opinion and again requested Dr. Taylor complete the FMLA medical certification form. Pannoni did not have Dr. Taylor complete this form and also did not obtain a third medical opinion.
¶15 In the years that followed, Pannoni worked sporadically. He was frequently absent. In eight of Pannoni’s last eleven years of employment, he was absent more than his contracted fourteen days of personal and sick leave. In the 1997-1998 school year, Pannoni was absent twenty-three days. He was absent more than eighty-seven days during the 1998-1999 school year. During the 1999-2000 school year, he was absent more than 137 out of 178 work days.
¶16 In January of 2000, Pannoni met with Werner and a principal to discuss accommodations which would allow Pannoni to return to work. On numerous occasions, Pannoni notified the School that he was supposed to be well enough to resume his teaching position. However, Pannoni was still often unable to come to work despite medical releases and was unsuccessful at completing the required attendance for a teaching position, either at the Babb School or at the Middle School.
¶17 The School adjusted Pannoni’s work schedule and student load, attempting to accommodate Pannoni’s needs while still providing the necessary continuity and quality of teaching services that the students required and the School demanded. In December of 1999, the School retained Dr. Nathan Munn, an experienced psychiatrist, to evaluate Pannoni. After meeting with both Pannoni and Pannoni’s wife, Dr. Munn concluded that Pannoni suffered from a serious health condition, that as of January 2000 Pannoni was incapacitated and unable to work because of his depression, that Pannoni required treatment for his depression, and that a transfer back to Babb would not suffice.
¶18 In May of 2000, Smyth recommended that the School terminate Pannoni’s employment because of his excessive absences. Until February of2000, the School continued to provide Pannoni with health insurance benefits. After the School held a hearing, Pannoni was terminated as a teacher on May 23, 2000. On June 6, 2000, Pannoni filed a complaint with the Agency alleging that the School, Smyth, and Werner discriminated against him because of his depression (his disability) “by taking adverse employment action against him because of his disability and retaliating against him.” An Agency hearing was held in April of 2001.
¶19 The Agency concluded that Pannoni’s depression rendered him unable to regularly attend school every day to teach. Pannoni had a history of prolonged, erratic, and numerous absences that was impossible for the School to accommodate. His absences extended well beyond the retum-to-work dates that his health care professionals provided. As a result of his “genuine inability to keep showing up every school day[,]” he was rendered an unqualified individual and thus the School had no duty to provide him reasonable accommodation. The Agency determined that the School reasonably concluded that it could not rely upon yet another assurance from Pannoni’s health care providers that he would be able to return to a full teaching load if his leave was extended again. The School also was found to have acted reasonably when it concluded that it could not, without undue hardship to the School’s students, continue to provide interim coverage for Pannoni’s classes with no assurance that he would return to work and maintain his attendance in the fall of 2000.
¶20 The Agency concluded that Pannoni did suffer from a disability but was not otherwise a qualified person. The School had legitimate business reasons (the need for teacher attendance) for its adverse employment actions and did not illegally discriminate against Pannoni by denying his requests for leaves of absence, refusing the specific accommodations he proposed (including hiring a new teacher and then releasing the teacher if Pannoni could return to work), and eventually terminating Pannoni’s employment. The Agency determined the School acted reasonably when it terminated Pannoni’s employment and hired a new teacher for the next year.
¶21 The School, Smyth, and Werner requested an award of costs. The Agency denied the request because it did not believe the general legislative mandate to follow the Montana Rules of Civil Procedure in Agency proceedings empowered the Agency to award costs in contested case hearings, such as employment discrimination case hearings.
¶22 Pannoni appealed the Agency’s decision to the Commission. The Commission affirmed the Agency’s decision. Pannoni then appealed the Commission’s decision to the District Court. The District Court affirmed the Commission’s decision. On appeal to the District Court, Pannoni asked the court to allow him to present additional evidence to the Human Rights Bureau, the Agency, and the Commission. This evidence consisted of a July 2002 letter from the School’s counsel and the results of a psychological consultation which took place more than one year after the initial Agency hearing. The District Court denied this request. Pannoni appeals the District Court rulings.
¶23 After the court affirmed the Commission decision, the School, Smyth, and Werner filed a request for costs in the District Court. The court denied the request. The School, Smyth, and Werner have cross- appealed the denial of costs.
Discussion
¶24 Issue 1: Whether the District Court erred in affirming the Agency’s conclusion that Pannoni was not a qualified individual with a disability?
¶25 We review a district court’s order affirming or reversing an administrative decision in a contested case to determine whether the findings of fact are clearly erroneous and whether the agency correctly interpreted the law. Laudert v. Richland County Sheriff's Dept., 2000 MT 218, ¶ 14, 301 Mont. 114, ¶ 14, 7 P.3d 386, ¶ 14.
¶26 The Montana Human Rights Act (MHRA), modeled in part after the Americans with Disabilities Act (ADA), prohibits discrimination based on physical or mental disability by employers against employees. Section 49-2-303(l)(a), MCA. A disability is defined as a physical or mental impairment that substantially limits one or more of a person’s major life activities. Section 49-2-101(19)(a), MCA. A mental impairment can be a mental or psychological disorder, including an emotional or mental illness such as major depression. Martinell v. Montana Power Co. (1994), 268 Mont. 292, 302-03, 886 P.2d 421, 428. Work is considered one of life’s major activities. Martinell, 268 Mont. at 304, 886 P.2d at 428.
¶27 If a person suffers from a disability, the employer has a duty to provide a reasonable accommodation if, with such accommodation, the person could perform the essentialjob functions of the position. Section 49-2-101(19)(b), MCA; Rule 24.9.606(2), ARM. A person with a disability is qualified to hold an employment position if he or she can perform the essential job function with or without reasonable accommodation. Rule 24.9.606(2), ARM. If a person is unable to perform the essential job functions, even with a reasonable accommodation, he or she is not a qualified person. The claimant carries the burden of proving that he or she can perform the essential job functions for a position in order to establish he or she is a qualified person. Heiat v. Eastern Montana College (1996), 275 Mont. 322, 328-29, 912 P.2d 787, 791-92; Nowak v. St. Rita High School (7th Cir. 1998), 142 F.3d 999, 1003.
¶28 Because the MHRA is closely modeled after federal anti-discrimination statutes such as the ADA, this Court consistently considers federal court interpretations when we interpret the provisions of the MHRA. Laudert, ¶ 49. “The determination as to whether an individual is a ‘qualified individual with a disability’ must be made as of the time of the employment decision.” Nowak, 142 F.3d at 1003 (citation omitted). If a reasonable accommodation available to an employer could plausibly enable a handicapped employee to adequately perform his or her job, an employer is liable for failing to attempt that accommodation. Kimbro v. Atlantic Richfield Co. (9th Cir. 1989), 889 F.2d 869, 879.
¶29 An employer is not required “to accommodate an employee who suffers a prolonged illness by allowing him an indefinite leave of absence.” Nowak, 142 F.3d at 1004. The requirement to grant a leave of absence where “there are plausible reasons to believe that it would accommodate the employee’s disability can not be repeatedly invoked, thus permitting an unqualified employee to avoid termination by requesting a leave of absence each time he is about to be fired.” Humphrey v. Memorial Hospitals Assn. (9th Cir. 2001), 239 F.3d 1128, 1136 n.13. While granting a leave of absence in the first instance may' be required, an employer is not obligated to grant a second leave if the employee’s condition recurred after return from the initial leave. Kimbro, 889 F.2d at 879 n.10. “Indeed, the fact that an accommodation has been attempted and was unsuccessful is a relevant consideration for the factfinder and may in fact prove dispositive in determining whether failure to permit subsequent leave constituted failure to make a reasonable accommodation.” Kimbro, 889 F.2d at 879.
¶30 The overwhelming majority of courts have held that an employee who does not come to work cannot perform any of his or her job functions, essential or otherwise, except in the unusual case where an employee can effectively perform all work-related duties at home (such as a medical transcriptionist). Nowak, 142 F.3d at 1004; Tyndall v. Natl. Educ. Ctrs., Inc. (4th Cir. 1994), 31 F.3d 209, 213; Wimbley v. Bolger (6th Cir. 1987), 831 F.2d 298; Nesser v. Trans World Airlines, Inc. (8th Cir. 1998), 160 F.3d 442, 445-46; Carr v. Reno (D.C. Cir. 1994), 23 F.3d 525, 529-30. Teaching is not one of the unusual cases where the employee can effectively perform all work-related duties at home.
¶31 Pannoni argues that the federal courts have adopted a veiy lenient standard for determining if an accommodation is reasonable. He claims that we should incorporate a lenient “plausibility standard” into the reasonable accommodation analysis. Pannoni contends that his request for an extension of his unpaid leave of absence qualified as a reasonable accommodation pursuant to this standard because “it was at least plausible to believe on May 23, 2000 that he [Pannoni] would have been able to perform the essential functions of a teaching position at the beginning of the 2000-01 school year had his request been granted.” He claims that the School was required to extend his leave unless the School could prove that the accommodation would have imposed an undue hardship.
¶32 Montana law clearly states that “[a] person with a physical or mental disability is qualified to hold an employment position if the person can perform the essential functions of the job with or without a reasonable accommodation for the person’s physical or mental disability.” Rule 24.9.606(2), ARM. This is substantively the same standard federal courts apply to employment discrimination claims based on an employee’s disability. Humphrey, 239 F.3d at 1133; Nowak, 142 F.3d at 1002-03. Pannoni contends that, under a more lenient plausibility analysis, he has established that the requested leave of absence was a reasonable accommodation. We disagree. Pannoni has failed to establish a plausible reason to believe that another leave of absence would enable him to adequately perform his job, Kimbro, 889 F.2d at 879, or that it is plausible that such a leave would successfully accommodate his disability, Humphrey, 239 F.3d at 1136. We conclude the District Court, which relied on Humphrey, applied the correct standard in ascertaining whether Pannoni was a qualified individual deserving of reasonable accommodation,
¶ 33 Pannoni’s depression is a disability which, if it substantially limits his ability to work, is covered by the provisions of the MHRA. Section 49-2-101(19)(a), MCA; Martinell, 268 Mont. at 304, 886 P.2d at 429. However, Pannoni is not a qualified individual unless he can prove that he can perform the essential job functions, with or without reasonable accommodation. Section 49-2-303(19)(b), MCA; Rule 24.9.606(2), ARM. Pannoni bears the burden of proving that, as of May 23, 2000, he was capable of performing the essential job functions of teaching, including regular attendance, in order to establish that he was a qualified individual. Nowak, 142 F.3d at 1003; Heiat, 275 Mont. at 328-29, 912 P.2d at 791-92. If he was unable to perform the essential job functions, even with a reasonable accommodation, he was not a qualified individual. Nowak, 142 F.3d at 1003.
¶34 While the School may have been required to grant Pannoni an initial leave of absence (as it did), the School was not required to grant him subsequent leaves of absence after the initial accommodation was attempted and was unsuccessful. Kimbro, 889 F.2d at 879. The record is clear that upon returning after the initial leave of absence Pannoni was unable to regularly attend school. He was thus not able to perform his essential job functions. Nowak, 142 F.3d at 1003. The School is not obligated to grant Pannoni indefinite leave or repeated leaves on the promise that Pannoni may be able to perform his job duties at some future date when history has proven that Pannoni is not able to perform these duties, despite his promises that a leave of absence would enable him to do so. Nowak, 142 F.3d at 1004; Kimbro, 889 F.2d at 879.
¶35 Pannoni goes to great lengths attempting to persuade this Court that his requested accommodation of extended leave was a reasonable accommodation the School should have provided. However, Pannoni has not established that he is a qualified individual; that is, he has not demonstrated that with an extended leave he can perform the essential job functions. Heiat, 275 Mont. at 328-29, 912 P.2d at 791-92; Nowak, 142 F.3d at 1003. In the absence of such proof, Pannoni is not entitled to reasonable accommodation. Additionally, because he is not a qualified individual, we need not discuss whether the proposed accommodation would place an undue burden on the School. We affirm the determination that Pannoni is not a qualified individual.
¶36 Issue 2: Whether the District Court erred in affirming the exclusion of medical evidence at the Agency hearing?
¶37 In reviewing a district court’s order affirming an administrative decision, we determine whether the findings of fact are clearly erroneous and whether the agency correctly interpreted the law. Laudert, ¶ 14. Pursuant to the Montana Administrative Procedures Act, § 2-4-612(5), MCA, “[a] party shall have the right to conduct cross-examinations required for a full and true disclosure of facts, including the right to cross-examine the author of any document prepared by or on behalf of or for the use of the agency and offered in evidence.”
¶38 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. Hearsay evidence is not admissible unless it falls within an exception to the hearsay rule. Rule 802, M.R.Evid. Rule 803(6), M.R.Evid., allows a hearsay exception for
Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnosis, made at or near the time of the acts, events, conditions, opinions, or diagnosis, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness....
¶39 Pannoni sought to introduce four letters (one to Smyth, one to Werner, one to Panno.ni and one generally addressed) prepared by his psychiatric social worker at the Cardston Mental Health Clinic (located in Canada). These letters were written medical reports in letter-form which contained observational information and opinions regarding Pannoni’s medical condition and ability to return to work. The reports were accompanied by a written certification prepared by the custodian of medical records at the Carston Mental Health Center which stated that the reports had been prepared as part of regularly conducted business and “were made at or near the time of the acts, events, conditions, opinions, or diagnosis contained herein.” No person testified regarding the content of the reports or about their status as regularly-kept records.
¶40 Pannoni claimed the reports came within the business records exception to the hearsay rule. Rule 803(6), M.R.Evid. The School objected to the introduction of the documents as hearsay. The hearing examiner sustained the objection on the basis that the reports were unsworn medical records containing expert opinion about Pannoni’s medical condition. The hearing examiner admitted the documents for the purpose of establishing notice to the School but excluded the reports for establishing the nature and severity of Pannoni’s condition. Pannoni claims the reports should have been admitted for the truth of the matters asserted within the letters.
¶41 The District Court affirmed the hearing examiner’s decision, noting that Pannoni attempted to lay the foundation for the evidence through a written certification prepared by the custodian of the records. The proffered foundation was a written document from the custodian who did not directly testify at the hearing; this foundational evidence was itself hearsay. Rule 801(c), M.R.Evid. Citing Tongil Co. v. The Vessel “Hyundai Innovator” (9th Cir. 1992), 968 F.2d 999, 1000, the court stated that hearsay does not establish the foundation for admission of otherwise inadmissible hearsay documents.
¶42 We agree with the District Court. A proper foundation was not laid for the admission of the records pursuant to Rule 803(6), M.R.Evid. Neither the custodian of the records nor another qualified witness testified regarding the reports, as required by Rule 803(6), M.R.Evid. Lacking the requisite foundation, the reports are inadmissible hearsay. Rule 803(6), M.R.Evid.
¶43 On appeal, Pannoni argues that the reports are subject to the authentication procedure for foreign public documents detailed in Rule 902(3), M.R.Evid., instead of the procedure of Rule 803(6), M.R.Evid. Pursuant to this rule, Pannoni claims it is not necessary for the records custodian to testify in person because the reports are admissible as self-authenticating documents. He contends the reports were properly authenticated as the business records of a foreign public agency by the records custodian of the mental health clinic where the reports were created. Pannoni asserts the custodian’s “certification was attested to by a notary public and certified by a representative of the Consulate General of the United States in accordance with Rule 902(3), M.R.Evid.” He contends that this successfully establishes the reports as foreign public documents that need not be otherwise authenticated. ¶44 Pannoni’s reliance on Rule 902(3), M.R.Evid., is misguided. Rule 902(3), M.R.Evid., provides for authentication of foreign public documents. These are documents
executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution of attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation....
Rule 902(3), M.R.Evid.
¶45 We have previously stated that hospital and ambulance records are ordinarily not documents that are self-authenticating and are not admissible business records pursuant to Rule 902, M.R.Evid. Palmer by Diacon v. Farmers Ins. Exch. (1988), 233 Mont. 515, 521, 761 P.2d 401, 405. Rule 902(3), M.R.Evid., modeled after Rule 902(3), F.R.Evid., applies to documents such as written laws or judicial records of a foreign country. Commission Comments to Rule 902, M.R.Evid. A specific example of the type of foreign public document encompassed by this rule is an inspection report from the Sudanese National Laboratory (a nationalized company and therefore a government entity) stating that a shipment of peanuts was not contaminated when it left Sudan. Raphaely Int’l v. Waterman Steamship Corp. (2d Cir. 1992), 972 F.2d 498, 502.
¶46 Unsworn medical reports of a third person not called as a witness and available for cross-examination are hearsay and inadmissible in evidence. Pickett v. Kyger (1968), 151 Mont. 87, 98, 439 P.2d 57, 63; Klaus v. Hillberry (1971), 157 Mont. 277, 286, 485 P.2d 54, 59. If a party seeks to introduce expert testimony regarding the party’s medical condition and prognosis, the expert must be available for cross-examination regarding his knowledge, training, and any assumptions or facts on which he or she has based his or her opinions. Lynch v. Reed (1997), 284 Mont. 321, 332, 944 P.2d 218, 225; Goodnough v. State (1982), 199 Mont. 9, 18, 647 P.2d 364, 369.
¶47 The reports Pannoni sought to introduce may be foreign documents because they are from the Cardston Mental Health Clinic located in Canada. However, they are not public documents of a foreign country as contemplated in Rule 902(3), M.R.Evid. Hospital records and medical reports are ordinarily not self-authenticating documents and are not admissible business records pursuant to Rule 902, M.R.Evid. Palmer, 233 Mont. at 521, 761 P.2d at 405. Pannoni’s medical records are not foreign public documents, such as written laws or judicial records, which may properly be authenticated by the procedure in Rule 902(3), M.R.Evid. Commission Comments to Rule 902, M.R.Evid. The fact that Pannoni claims the reports were authenticated as business records of a foreign public agency by the records custodian, whose certification was later attested to by a notary public and certified by a representative of the Consulate General of the United States, does not change the nature of the reports and the information they contained.
¶48 Additionally, the medical expert (the psychiatric social worker) who authored the reports was not called as a witness, did not give sworn testimony, and was not available for the requisite cross-examination regarding the information and opinions contained in the reports. Section 2-4-612(5), MCA; Lynch, 284 Mont. at 332, 944 P.2d at 225; Goodnough, 199 Mont. at 18, 647 P.2d at 369; Pickett, 151 Mont. at 98, 439 P.2d at 63; Klaus, 157 Mont. at 286, 485 P.2d at 59. The unsworn medical reports are not subject to any hearsay exception. Rule 802, M.R.Evid. Based on the foregoing, the reports are hearsay and inadmissible in evidence. Pickett, 151 Mont. at 98, 439 P.2d at 63; Klaus, 157 Mont. at 286, 485 P.2d at 59.
¶49 The District Court correctly upheld the Agency’s decision to not allow the medical reports for the truth of the matters asserted within the records. The District Court correctly interpreted the law and its findings of fact are not clearly erroneous. Laudert, ¶ 14. We affirm the exclusion of this evidence.
¶50 Issue 3: Whether the District Court erred in affirming the Agency’s decision regarding the School’s post-termination actions?
¶51 We review a district court’s order affirming an administrative decision to determine whether the findings of fact are clearly erroneous and whether the agency correctly interpreted the law. Laudert, ¶ 14. An administrative agency does not err in omitting a specific finding of fact or conclusion of law when the record as a whole supports the conclusion reached by the agency. See In the Matter of D.D. (1996), 277 Mont. 164, 169, 920 P.2d 973, 976. In such a case, the agency’s “error in failing to set forth a detailed statement of the facts may constitute harmless error.” In the Matter of D.D., 277 Mont. at 169, 920 P.2d at 976. “If the record provides a complete understanding of the issues without the aid of separate findings,” a failure to make express findings does not require a remand. EEOC v. Bruno’s Restaurant (9th Cir. 1992), 13 F.3d 285, 288.
¶52 The determination regarding whether a claimant is a qualified individual with a disability is made as of the time of the employment decision (i.e. termination). Nowak, 142 F.3d at 1003. If a former employee reapplies for employment and is discriminatorily refused employment, the employer has then committed a separate and distinct discriminatory act and unfair practice. Collins v. United Air Lines, Inc. (9th Cir. 1975), 514 F.2d 594, 596-97. However, an alleged illegal discharge from employment is not a continuing violation allowing the introduction of new evidence which comes into existence after the date of the initial discharge; the original discrimination charge matures on the date of the employment termination. Nowak, 142 F.3d at 1003; King v. Seaboard Coast Line R.R. Co. (4th Cir. 1976), 538 F.2d 581, 584.
¶53 Pannoni asserts that the School refuses to consider him for reemployment because of his previous absences caused by his disability. This contention is supported by one sentence in a letter from Werner that Pannoni’s employment was officially terminated on May 23,2000, and that he would “not be eligible for rehire.” The School, Werner, and Smyth maintain that this statement by Werner was made without the authority or knowledge of the school board (the only entity with the authority to hire for the School). The School contends that it is not the School’s policy to make former employees ineligible for rehire and that previously terminated employees have, in fact, been rehired. Pannoni himself quotes in his brief from a hearing held on April 28, 2002, at which Werner stated “people who were terminated from the district, under unfavorable conditions, would not be reconsidered ... [but that] wasn’t meant to imply, that people could not make a showing of why they should be reconsidered at some point in time.” The record reflects that although Pannoni inquired into employment with the School, he never actually applied for a position with the School after his initial termination.
¶54 The Agency decision did not contain any specific findings of fact or conclusions of law regarding Pannoni’s “failure to rehire” discrimination claim. Pannoni claims that the Agency erred in failing to make any specific findings of fact and conclusions of law on this issue. The District Court determined that this omission was not error because the findings of fact and conclusions of law made by the Agency clearly determine Pannoni was not entitled to accommodation because he was not a qualified person prior to his termination.
¶55 After reviewing the record, we agree with the District Court that the Agency’s failure to enter a specific finding of fact was harmless error. In the Matter of D.D., 277 Mont. at 169, 920 P.2d at 976. The record as a whole supports the conclusion reached by the Agency that Pannoni was not entitled to the protections of the MHRA. In the Matter of D.D., 277 Mont. at 169, 920 P.2d at 976. The Agency determined that Pannoni was not a qualified individual with a disability at the time of his employment termination. Nowak, 142 F.3d at 1003. Since Pannoni did not apply for re-employment, there was no refusal of reemployment which would have constituted a separate and distinct discriminatory act. Collins, 514 F.2d at 596-97. The District Court did not err in affirming the Agency decision because the Agency’s findings of fact are not clearly erroneous and the law was correctly interpreted. Laudert, ¶ 14. We affirm.
¶56 Issue 4: Whether the District Court erred in denying Pannoni’s request to present additional evidence?
¶57 “Our standard of review of a district court’s evidentiary rulings is abuse of discretion.” VonLutzow v. Leppek, 2003 MT 214, ¶ 14, 317 Mont. 109, ¶ 14, 75 P.3d 782, ¶ 14. We determine if “the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” VonLutzow, ¶ 14. Additional evidence is admissible “[i]f, before the date set for hearing, [1] application is made to the court for leave to present additional evidence and [2] it is shown to the satisfaction of the court that the additional evidence is material and [3] that there were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the agency upon conditions determined by the court.” Section 2-4-703, MCA (emphasis added). The agency may then modify its findings and decision based on the additional evidence and file the modifications or new findings with the reviewing court. Section 2-4-703, MCA. Good reason does not include the reports of new experts sought out after the hearing in an attempt to bolster a claim. Allen v. Sec. of Health and Human Servs. (9th Cir. 1984), 726 F.2d 1470, 1473.
¶58 Pannoni asked the District Court to allow him, pursuant to § 2-4-703, MCA, to present additional evidence to the Human Rights Bureau, the Agency, and the Commission. The additional evidence consisted of (1) the results of a psychological consultation (prepared in June of 2002) which took place more than one year after the initial Agency hearing and (2) a letter from July of 2002 by the School’s counsel discussing what Pannoni must do to be rehired. Pannoni states the “good reason” that the evidence was not presented in the initial hearing is that the evidence did not exist at that time.
¶59 The court denied Pannoni’s request to present the additional evidence. Regarding the psychological consultation evidence, the court explained that although the evidence may have been relevant, Pannoni failed to provide good reason for his failure to present the evidence in the original proceeding, as required by § 2-4-703, MCA. The fact that the evidence did not exist at the time of trial was Pannoni’s choice because he did not obtain the psychological consultation before the Agency hearing. The District Court determined that Pannoni made a tactical decision at the administrative level to rely on hearsay evidence inadmissible under Rules 803(4) and 803(6), M.R.Evid. At the hearing, Pannoni attempted to admit a written report from his medical expert because the expert was not available for the Agency hearing. Pannoni failed to obtain a second expert witness or request a continuance of the hearing. The court concluded this tactical decision does not provide good reason for Pannoni’s failure to present non-hearsay evidence at the hearing.
¶60 Although evidence of the consultation may have been relevant, Pannoni did not establish “good reason” why the evidence was not initially presented at the Agency hearing. Section 2-4-703, MCA. Good cause does not include the reports of new experts sought out after the hearing. Allen, 726 F.2d at 1473. The discovery of the evidence was not out of Pannoni’s control, as occurs with the discovery of a new witness not known about until after a hearing has concluded. Zanca v. Exhibition Contractors Co. (La. App. 1993), 614 So.2d 325, 331.
¶61 Additionally, Pannoni has not shown that the letter from the School’s counsel is relevant to the issues presented (i.e. the evidence does not have any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence). Rule 401, M.R.Evid. Because the letter was written in July of 2002 (approximately two years after Pannoni’s employment was terminated), it could only possibly be relevant to his failure to rehire claim. As explained above, because Pannoni has not reapplied with the School for employment, his failure to rehire claim does not present an independent cause of action. Accordingly, the letter is irrelevant to the issues before the Court. Section 2-4-703, MCA.
¶62 The District Court’s analysis of the additional evidence was accurate. The court did not incorrectly interpret or apply the law when it denied Pannoni’s motion to present the additional evidence. VonLutzow, ¶ 14. We affirm.
¶63 Issue 5: Whether the District Court erred when it did not award costs to the School, Smyth, and Werner?
¶64 The School, Smyth, and Werner claim that the court erred when it denied costs because the Montana Rules of Civil Procedure authorize the recovery of costs, and these Rules apply to Agency proceedings. These parties claim that the recovery of costs after an offer of judgment is authorized by Rule 68, M.R.Civ.P., applicable to human rights complaints pursuant to § 49-2-505(3), MCA. They also contend that § 25-10-501, MCA, authorizes the recovery of costs.
¶65 The School made an Offer of Judgment on January 31, 2001, in the amount of $7,500 for settlement of the case. Pannoni did not accept this offer. The School claimed that because Pannoni did not obtain a judgment more favorable than the offer made, he should be liable for their costs, pursuant to Rule 68, M.R.Civ.P. The School filed a bill of costs after the Commission affirmed the Agency decision. Pannoni opposed the award of costs on several grounds. The Agency denied the recovery of costs. The Agency stated that the general legislative mandate to follow the Montana Rules of Civil Procedure does not empower the Agency to award costs in contested case hearings. After the District Court upheld the Commission decision affirming the Agency decision, the School, Smyth, and Werner again filed for costs. The costs were denied. The court determined that recovery of costs is only allowed by specific grant of statutory authority. Jones v. Great Northern Railway Co. (1923), 68 Mont. 231, 241, 217 P. 673, 677. The court reasoned that because judicial review by a district court of an agency decision is a “special proceeding,” a party who prevails may recover costs incurred. However, the court then noted that the costs at issue were not incurred in the special proceeding before the District Court. Instead, the court determined that the costs claimed were incurred in the administrative Agency proceeding. The court concluded no statutory authority permitted recovery of costs incurred at the administrative level. The court stated that, pursuant to § 49-2-505(3)(a), MCA, the Montana Rules of Civil Procedure only apply in Agency hearings to the extent the Rules are adopted by the department (in this case, the Agency). Rule 68, M.R.Civ.P., which allows the recovery of costs after an offer of judgment, has not been adopted by the Agency to apply in Agency-conducted administrative hearings. Lacking authority to award costs incurred only at the administrative hearing level, the court denied the bill of costs in its entirety.
¶66 On appeal, Pannoni argues that the School’s, Smyth’s, and Werner’s cross-appeal as to the denial of costs was not timely filed. He claims the cross-appeal was required to be filed within fourteen days from the filing of a notice of appeal, pursuant to Rule 5(a)(3), M.R.App.P. Pannoni filed his notice of appeal on August 27,2003. The cross-appeal was filed on October 21, 2003.
¶67 Pannoni neglects to acknowledge the remainder of the code section he cites. In full, Rule 5(a)(3), M.R.App.P., states: “If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this Rule 5(a), whichever period last expires.” (Emphasis added.)
¶68 The District Court order denying the request for costs was entered October 10, 2003. The filing of the cross-appeal on October 21, 2003, falls within the time-limit proscribed by Rule 5(a), M.R.App.P. Rule 5(a), M.R.App.P., requires a “notice of appeal required by Rule 4 shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from[.]” The cross-appeal was filed within 30 days from entry of the order appealed from. The cross-appeal was thus timely filed.
¶69 The court interpreted the applicable statutes and determined that no statutory basis existed to award costs. The court’s interpretation of the law is correct. By the plain language of the statute that makes the Montana Rules of Civil Procedure applicable in an Agency hearing, the Rules are only applicable so far as they are adopted by the Agency. Section 49-2-505(3)(a), MCA. The School, Smyth, and Werner have failed to provide any specific statutory authority authorizing costs in an Agency hearing. No authority has been cited indicating that the Agency adopted Rule 68, M.R.Civ.P., in the context of an administrative hearing regarding employment discrimination. Absent such authority, an award of costs is not proper. Jones, 68 Mont. at 241, 217 P. at 677. The District Court’s interpretation of the law was correct; it did not abuse its discretion. Montana Fair Housing, Inc. v. Barnes, 2002 MT 353, ¶ 12, 313 Mont. 409, ¶ 12, 61 P.3d 170, ¶ 12. We affirm the denial of costs.
CHIEF JUSTICE GRAY, JUSTICES NELSON, WARNER and RICE concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 James, Michael and Marcus Massee (the Massees or the sons) are the surviving sons of Vickie Doggett, who was fatally shot by her husband, Ray Doggett, in May 1997. The Massees brought a wrongful death action against Sheriff Richard Thompson of Broadwater County (the Sheriff or Thompson) and Broadwater County, as principal. A jury returned a verdict in favor of the Massees in February 2003, awarding the sons a total of $358,000. On a Motion for Judgment as a Matter of Law, the First Judicial District Court vacated the jury verdict on the grounds that the Sheriff had no legal duty to protect Vickie from Ray and could not be held liable for failure to do so. The Massees appeal. We reverse.
ISSUE
¶2 The only issue before this Court is whether the District Court erred by granting Thompson’s Motion for Judgment as a Matter of Law.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The following facts, while lengthy, are critical to the jury’s verdict, the District Court’s Order, and our decision here.
¶4 Vickie Sue Massee (Vickie) and Ray Doggett (Ray) were married in October 1990. Prior to Vickie’s marriage to Doggett, Vickie had been married to Raymond Massee (Massee). She had three sons during her marriage to Massee, James, Michael and Marcus. For most of the times at issue, the three boys lived with Vickie and Ray.
¶5 Over the course of the Doggetts’ tumultuous marriage, members of the Broadwater County Sheriffs Office (BCSO or Sheriffs Office), and most notably Thompson, became intimately involved in the lives of Ray and Vickie. BCSO’s first involvement with the couple occurred approximately one year after Vickie and Ray got married, when the Sheriffs Office responded to a domestic violence disturbance at the Doggetts’ home. Vickie and Ray had each struck and injured the other. They were sentenced to counseling which they completed.
¶6 From the record, it appears that the marriage had frequent ups and downs, with the downs generally occurring after Ray and/or Vickie had been drinking. Ray became unable to work shortly after he and Vickie married and he began suffering from bouts of depression. With his depression came binge drinking, accusations of infidelity, and threats of suicide or murder.
¶7 Just before midnight on October 29,1994, the Broadwater County Undersheriff responded to a call from Vickie. She was at a Townsend bar and asked that an officer come get her, collect her sons, and then drive them all to the county line to be picked up by the children’s grandparents. Vickie indicated that she and Ray were arguing and that she wanted to be away from Ray. Undersheriff Ludwig responded. On the way to the county line, Vickie decided she would let the boys go with their grandparents, and she would return home. Undersheriff Ludwig, after confirming there had been no physical violence in the earlier argument, convinced Vickie that she and Ray should spend the night apart while each sobered up. Vickie ultimately conceded.
¶8 On Ludwig’s return to Townsend, she was then dispatched to Ray’s house. Ray had called the BCSO threatening suicide if Ludwig did not tell him where Vickie was. When Ludwig arrived at the Doggetts’ home with a reserve deputy, Ray was sitting at a table with a loaded .44 magnum pistol. Ludwig assured him that Vickie was safe, and while the reserve deputy talked with Ray in an effort to calm him, the Undersheriff took Ray’s pistol for safekeeping. The record is unclear as to when the weapon was returned to Ray.
¶9 On December 10, 1994, the BCSO received another domestic dispute call from the Doggetts’ home, and two deputies were dispatched. According to the Sheriffs Office log, Vickie and Ray were intoxicated and engaged in a serious argument. When the two deputies arrived, they could hear the argument escalating. Upon entering the home, they discovered that one of Vickie’s teenage sons was also present. The officers ushered him outside to safety and then returned inside, at which time Ray threatened them with bodily harm. Thompson was then called and advised of the situation. The Sheriff immediately telephoned Ray and began talking to him. At that time, one of the responding officers was called away to another incident. When the remaining officer got on the telephone to talk to Thompson, Ray left the room, ostensibly to go to the bathroom, but moments later emerged from the bedroom with the .44 magnum revolver (the same revolver that had been earlier confiscated). The deputy reported this to the Sheriff who told the deputy to leave the house immediately. The deputy obeyed. Shortly thereafter, the BCSO dispatcher called the Doggett home and Vickie told her that Ray was holding a gun to her head. Within minutes, the officer who had responded to another call returned with a third officer. The three deputies stayed outside and awaited the Sheriffs arrival a few minutes later.
¶10 Thompson and a deputy entered the home while the other officers remained outside. Ray was agitated, drunk and wielding his .44 magnum handgun. After talking to the Sheriff for a short period of time, Ray put the gun to his own head. The Sheriff and his deputy were able to wrestle the loaded pistol from him. After several minutes of calming discussion, the deputies were told they could leave and the Sheriff remained to counsel Ray. Two deputies left. The third deputy waited in the car parked in a location that allowed him to see inside the Doggetts’ home where Ray and the Sheriff were talking.
¶11 At trial, there was substantial testimony presented that one of the responding officers, as recorded in his official report, had seen Ray holding the gun to Vickie’s head. This deputy also indicated in his report that the Sheriff decided not to arrest Ray but did confiscate Ray’s gun. The Sheriff testified that he did not know that Ray had held the gun to Vickie’s head until some later date, and that during the time he was at the Doggett residence, Ray had not done anything that would warrant arrest. The Sheriffs report of this event, however, differs from the Sheriffs testimony. Thompson’s official report dated December 11, 1994, states, “While on the way into town, I heard the officers at the scene talking to dispatch and telling her that Ray was pointing the gun at Vickie.”
¶12 After these events, the marriage appeared to stabilize somewhat. However, on October 6, 1996, the BCSO’s log reflects three calls between 4:00 a.m. and 4:30 a.m. from Ray Doggett during which he sounded depressed and requested that the Sheriff come visit him because he needed a friend. Then, again, in the early morning hours of December 18, 1996, Ray called for a deputy. When two deputies arrived, they found Ray alone and drunk. He was complaining, as he had before, that Vickie was being unfaithful. The officers then received an unrelated call, and Ray told them he would be all right and that they could leave.
¶13 About ten days later, Ray asked that the BCSO send a particular deputy to his home. When the deputy arrived, Ray was drunk and claiming that Vickie wanted him dead. Vickie told the officer that Ray was always threatening to kill himself and she was considering leaving the marriage because of the overwhelming stress. Vickie’s son Marcus was also present, and informed the deputy that Ray had a revolver in the back of his pants. The deputy warned Ray that if Ray touched his gun, he would shoot him. The deputy stayed and talked with Ray until he was calm. Vickie and Marcus left the house during this time, upon suggestion of the deputy.
¶14 Within a few minutes of the deputy’s departure, Ray called the BCSO to tell them he was going to the local bar. Meanwhile, Vickie and Marcus had arrived at the home of Roger Reiman, a friend of Vickie’s sons. James and Michael were also present. She told them she wanted to spend the night in Helena, but was afraid to return to the house for the overnight items she would need. James and Roger went to get the items for her. When they arrived at the house and walked inside, Ray, who had returned from the bar and whose back was to the door, turned, pulled his gun and pointed it at them. He lowered it after about 5 seconds. James, who was quite frightened by the experience, retrieved his own .38 pistol while getting his mother’s toiletry items, and hid it under his jacket in case he needed to protect himself while leaving the house. While James was out of the room, Ray pulled his gun on Roger and suggested that they go outside. Just then, however, the BCSO called and Ray answered the phone. While Ray was on the phone with the Sheriffs Office, James and Roger left.
¶15 James and Roger immediately went to the BCSO to report what had occurred, but did not sign a formal complaint. Vickie and her sons left Roger’s house, and spent the night with friends in Helena. James gave his gun to Roger before leaving because Roger was afraid Ray would come looking for him when he realized Vickie was not coming home that night.
¶16 Later that night, Roger called the BCSO to report that Ray had called and threatened to kill him and to hunt down Vickie, James and Michael and kill them for taking Marcus away. Shortly thereafter, Roger went to the Sheriffs Office and signed a Voluntary Statement regarding these threats. He did not sign a Complaint because, he later testified, he was afraid that Ray might hurt him. The deputy who took Roger’s statement called and informed the Sheriff. Thompson said he would look into it the following day, but according to his own testimony, he failed to do so. Vickie, her sons, and Roger were never questioned about this incident and no investigation appears to have occurred. The BCSO’s log indicates that when Vickie returned from Helena the following day, she made arrangements for the boys to temporarily stay with their grandparents in White Sulphur Springs.
¶17 During the ensuing four months, Ray and Vickie did not seek the services of the BCSO. However, at about 2:00 a.m. on April 20, 1997, then eight-year old Marcus called the BCSO reporting that Ray and Vickie were having an argument and that he and his fourteen-year old brother, Michael, were in their bedroom with their .22 rifle on the bed for protection. According to the Sheriffs Office log, the dispatcher instructed the boys to put the gun away. The Sheriff and a deputy then went to the Doggetts’ residence. According to the deputy’s report, he immediately went to the bedroom with the boys and found the unloaded rifle put away in the closet. He reported that the boys said that the rifle was unloaded at all times during this event.
¶18 The boys told the officers that Ray’s gun was in his bedroom. The deputy found Ray’s gun on his bedside table, unloaded it and left the bullets on Ray’s dresser. The deputy did not confiscate Ray5s pistol but left it at the residence. Vickie, Michael and Marcus left the residence, followed shortly thereafter by the police officers. Vickie and the boys once again stayed with a friend in Helena.
¶19 At trial, Michael testified to a more detailed and slightly different version of the events of that evening. He stated that Ray and Vickie had returned home that night and were arguing. Michael saw Ray holding his .44 magnum pistol, waving it and pointing it at Vickie while arguing. He returned to his bedroom where Marcus was waiting, loaded his .22 rifle, and after listening to the escalating argument for about fifteen minutes, had Marcus call the BCSO. He stated at trial that during the course of the argument, Vickie, scared and crying, had come into their bedroom and shut the door. Ray opened the door and Michael saw that he was still carrying his .44 magnum pistol. However, according to Michael’s testimony and the testimony of the officers involved, no one subsequently investigated the incident; therefore, they did not learn from Michael or Vickie that Ray had threatened Vickie with a loaded pistol that night.
¶20 On May 5, 1997, Ray stopped by the BCSO at 2:00 a.m., in an extremely depressed state. He later called the Sheriffs Office at 3:00 a.m. and again at 3:15 a.m. also quite depressed, triggering serious concerns that he was suicidal. The Sheriffs fears were realized when, less than three weeks later, on May 24, the BCSO responded to the Doggetts’ home and discovered that Ray had shot and killed Vickie with his .44 magnum pistol, and then fatally turned the gun on himself.
¶21 Vickie’s sons sued Sheriff Thompson for negligently failing to take appropriate action to prevent Ray from killing their mother. Between February 24 and February 27,2003, a jury heard substantial evidence pertaining to the above events and the alleged negligence of the Sheriff. The jury concluded that Sheriff Thompson was negligent as defined by the jury instructions, and that his negligence was the cause of Vickie’s death. The jury awarded a total of $358,000 to Vickie’s sons.
¶22 On a Motion for Judgment as a Matter of Law filed by Thompson, the First Judicial District Court vacated the jury verdict. In its Decision and Order, the court analyzed each of the three domestic abuse statutes underlying the Massees’ claims. These statutes are set forth verbatim below. The court concluded that the “weapon seizure” statute found at § 46-6-603, MCA (1995), did not impose upon the Sheriff the legal duty to seize Ray’s weapon following the December 1996 and April 1997 episodes. The court further concluded that the provisions of the “arrest” statute, found at § 46-6-311, MCA (1993 and 1995), were discretionary rather than mandatory, and therefore did not impose upon the Sheriff the legal duty to arrest Ray for his assaults on Vickie.
¶23 The District Court also determined that no special relationship existed between Vickie and Ray so as to trigger a duty on the Sheriffs part to protect Vickie from Ray. It reasoned that the Sheriff had made no specific promises to protect Vickie from Ray, but rather, had merely responded to calls for assistance. Finally, the court concluded that, while the “notice” provisions of § 46-6-602, MCA (1995), imposed a duty on the Sheriff to provide information to Vickie about the availability of legal rights and services to her as a victim of domestic abuse, the statute did “not create a specific duty ... to protect [her] or guarantee her safety. Moreover, there was no evidence at trial connecting the failure of Thompson to provide such notice with Vickie’s death.”
¶24 On the basis of the foregoing findings, the District Court concluded that the Sheriff had no “legal duty to protect Vickie Doggett from Ray, and therefore, cannot be held liable to [the Massees] on the causes of action contained in the complaint.” The Massees appeal.
STANDARD OF REVIEW
¶25 A judgment as a matter of law entered pursuant to Rule 50(b), M.R.Civ.P., may be granted only where it appears as a matter of law that a party could not prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Somont Oil Co., Inc., v. A & G Drilling, 2002 MT 141, ¶ 38, 310 Mont. 221, ¶ 38, 49 P.3d 598, ¶ 38 (citing Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229).
¶26 Moreover, “[t]he courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a [judgment as a matter of law] motion is not properly granted.” Ryan, 279 Mont. at 510, 928 P.2d at 229-230. “Our review of a jury verdict is very narrow in scope. Substantial evidence need only be evidence which from any point of view could have been accepted by the jury as credible.” Moralli v. Lake County (1992), 255 Mont. 23, 27, 839 P.2d 1287, 1290 (citation omitted). We have also stated that “[s]ubstantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. Although it may be based upon weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous.” Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 164, 789 P.2d 567, 572 (overruled on other grounds in Busta v. Columbus Hosp.Corp., (1996), 276 Mont. 342, 916 P.2d 122)(citation omitted).
¶27 The existence of a legal duty is a matter of law to be determined by the court. LaTray v. City of Havre, 2000 MT 119, ¶ 18, 299 Mont. 449, ¶ 18, 999 P.2d 1010, ¶ 18. This Court’s standard of review of a question of law is whether the legal conclusions of the trial court are correct. MacKay v. State, 2003 MT 274, ¶ 14, 317 Mont. 467, ¶ 14, 79 P.3d 236, ¶ 14. Although jury verdicts are treated with deference, the Court also gives deference to a trial court’s post-verdict ruling which is contrary to the jury’s decision. Chambers v. City of Helena, 2002 MT 142, ¶ 44, 310 Mont. 241, ¶ 44, 49 P.3d 587, ¶ 44.
¶28 Lastly, in evaluating a motion for judgment as a matter of law, “the court must view all of the evidence in a light most favorable to the non-moving party.” DeMars v. Carlstrom (1997), 285 Mont. 334, 336, 948 P.2d 246, 248 (citation omitted).
DISCUSSION
¶29 We first address a dispute between the parties concerning the scope of the Massees’ appeal. Thompson and Broadwater County argue that, because the Massees did not specifically appeal from the District Court’s refusal to instruct the jury that violations of the “arrest” and “seizure” statutes were negligence per se, they cannot now argue that evidence that these statutes were violated supported the jury’s verdict.
¶30 Negligence per se, or negligence as a matter of law, provides that the violation of a statute renders one negligent under the law. Black’s Law Dictionary, Seventh Edition. To establish negligence per se, a plaintiff must prove that 1) the defendant violated the particular statute; 2) the statute was enacted to protect a specific class of persons; 3) the plaintiff is a member of that class; 4) the plaintiffs injury is of the sort the statute was enacted to prevent; and 5) the statute was intended to regulate members of defendant’s class. Estate of Schwabe v. Custer’s Inn, 2000 MT 325, ¶ 23, 303 Mont. 15, ¶ 23, 15 P.3d 903, ¶ 23. Common law negligence, on the other hand, is the failure to use the degree of care that an ordinarily prudent person would have used under the same circumstance. The four elements of a common law negligence claim are duty, a breach of that duty, causation and damages. Each of these elements must exist for a negligence claim to proceed. See, e.g., Henricksen v. State, 2004 MT 20, ¶ 20, 319 Mont. 307, ¶ 20, 84 P.3d 38, ¶ 20.
¶31 During the trial, the jury was presented with evidence that the Sheriff failed to comply with the following domestic abuse statutes -§§ 46-6-602, -603, and -311, MCA (set forth verbatim in ¶¶ 34-37 below). After all the evidence was presented and prior to jury deliberation, the court instructed the jury on the applicable law. The court informed the jury that 1) “negligence is the failure to use reasonable care”; 2) “negligence may consist of action or inaction”; 3) “a sheriff or deputy is negligent if he fails to act as an ordinarily prudent sheriff or deputy would act under the circumstances”; and 4) “an act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of a third person which is intended to cause harm, even though such conduct is criminal” [sic].
¶32 The jury was also instructed that it could find the Sheriff negligent per se if it concluded that he failed to provide Vickie with notice of her rights under § 46-6-602, MCA (1995). The court refused to instruct the jury, however, that it could also find the Sheriff negligent per se for failing to arrest Ray under § 46-6-311, MCA (1993 and 1995), or for failing to seize Ray’s weapon under § 46-6-603, MCA (1995). The court concluded that these “arrest” and “seizure” statutes gave the Sheriff the discretion to arrest Ray or seize his weapon; therefore, the court concluded, the statutes did not impose mandatory legal duties on the Sheriff. While the Massees objected at trial to the court’s refusal to present these negligence per se jury instructions regarding arrest and weapon seizure, they did not specifically appeal the District Court’s Decision on these grounds.
¶33 We conclude that the Sheriff’s argument that the failure to appeal from the court’s refusal to give negligence per se instructions should limit the scope of Massees’ appeal, is without merit. The jury received the full panoply of instructions on common law negligence. Though the District Court refused to instruct that violation of the “weapon seizure” or “arrest” statutes was negligence per se, the Massees were still permitted to-and did-argue that violation of these statutes by the Sheriff was evidence of negligence. We have held that, even if a violation of a statute does not constitute negligence per se, such violation may nonetheless be considered as evidence of negligence. Nehring v. LaCounte (1985), 219 Mont. 462, 468, 712 P.2d 1329, 1333. Because the Massees have appealed from the District Court’s entry of judgment as a matter of law, they have preserved their right to argue that the jury had before it sufficient evidence of negligence-including evidence that the subject statutes were violated by the Sheriff-to support the jury’s verdict.
¶34 As stated above in ¶ 31, the relevant domestic abuse statutes in this case are §§ 46-6-602, -603, and -311, MCA. Section 46-6-602, MCA (1993) is the “notice” statute for victims of domestic assault that was in effect during the 1994 incidents between Vickie and Ray. It provides:
Whenever a peace officer arrests a person for domestic abuse, as defined in 45-5-206, if the victim is present, the officer shall advise the victim of the availability of a shelter or other services in the community and give the victim immediate notice of any legal rights and remedies available. The notice must include furnishing the victim with a copy of the following statement:
“IF YOU ARE THE VICTIM OF DOMESTIC ABUSE, the county attorney’s office can file criminal charges against your abuser. You have the right to go to court and file a petition requesting any of the following orders for relief:
(1) an order restraining your abuser from abusing you;
(2) an order directing your abuser to leave your household;
(3) an order preventing your abuser from transferring any property except in the usual course of business;
(4) an order awarding you or the other parent custody of or visitation with a minor child or children;
(5) an order restraining your abuser from molesting or interfering with minor children in your custody or a family member or partner, as defined in 45-5-206; or
(6) an order directing the part not granted custody to pay support of minor children or to pay support of the other party if there is a legal obligation to do so”.
¶35 In 1995, prior to Vickie’s death, § 46-6-602, MCA, was revised and strengthened. It read:
Whenever a peace officer arrests a person for partner or family member assault, as defined in 45-5-206, or responds to a call in which partner or family member assault is suspected, the officer, outside the presence of the offender, shall advise the victim of the availability of a shelter or other services in the community and give the victim immediate notice of any legal rights and remedies available. The notice must include furnishing the victim with a copy of the following statement:
“The city or county attorney’s office can file criminal charges against an offender if the offender committed the offense of partner or family member assault.
In addition to the criminal charges filed by the state of Montana, you are entitled to the following civil remedies:
You may go to court and file a petition requesting any of the following orders for relief:
(1) an order of protection that prohibits the offender from threatening to hurt you or hurting you;
(2) an order of protection that directs the offender to leave your home and prohibits the offender from having any contact with you;
(3) an order of protection that prevents the offender from transferring any property except in the usual course of business;
(4) an order of protection that prohibits the offender from being within 1,500 feet or other appropriate distance of you, any named family member, and your worksite or other specified place;
(5) an order of protection that gives you possession of necessary personal property;
(6) an order of protection that prohibits the offender from possessing or using the firearm used in the assault.
If you file a petition in district court, the district court may order all of the above and may award custody of your minor children to you or to the other parent. The district court may order visitation of your children between the parents. The district court may order the offender to pay support payments to you if the offender has a legal obligation to pay you support payments.
The forms that you need to obtain an order of protection are at _. You may call_at_for additional information about an order of protection.
You may file a petition in district court at_.
You may be eligible for restitution payments from the offender (the offender would repay you for costs that you have had to pay as a result of the assault) or for crime victims compensation payments (a fund administered by the state of Montana for innocent victims of crime). You may call _ at _ for additional information about restitution or crime victims compensation.
The following agencies may be able to give you additional information or emergency help. (List telephone numbers and addresses of agencies other than shelters with secret locations and a brief summary of services that are available.)”
¶36 In 1995, § 46-6-603, MCA,-the “weapon seizure” statute-was enacted. This statute dictates the circumstances under which law enforcement must seize a weapon used or threatened to be used in a partner or family member assault.
(1) A peace officer who responds to a call relating to partner or family member assault shall seize the weapon used or threatened to be used in the alleged assault.
(2) The responding officer may, as appropriate:
(a) take reasonable action necessary to provide for the safety of a victim and any other member of the household;
(b) transport or arrange for the transportation of the victim and any other member of the household to a safe location; and
(c) assist a victim and any other member of the household to remove necessary personal items.
(3) A weapon seized under this section may not be returned to the offender until acquittal or until the return is ordered by the court.
This statute and the 1995 version of § 46-6-602 apply to the 1996 and 1997 domestic incidents between Ray and Vickie.
¶37 The legislature determined in 1991 that the preferred response in certain domestic abuse situations was to arrest the alleged abuser. Section 46-6-311, MCA (1993),-the “arrest” statute-codified this legislative decision.
(1) A peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.
(2) The summoning of a peace officer to a place of residence by a family member or partner constitutes an exigent circumstance for making an arrest. Arrest is the preferred response in domestic abuse cases involving injury to the victim, use or threatened use of a weapon, violation of a restraining order, or other imminent danger to the victim.
¶38 In 1995, the legislature made some minor revisions to the statute that do not impact the outcome of this case.
¶39 In summary, based on these statutes, 1) at all times between 1994 and 1997, while discretionary, the statutorily-preferred response in domestic abuse situations was to arrest the alleged abuser; 2) in 1994, the Sheriff was required to give Vickie notice of her victim’s rights only if he arrested Ray; 3) after 1995, the Sheriff was required to give Vickie notice of her victim’s rights whenever he responded to a domestic dispute call generated by Vickie, Ray or the boys; and 4) in 1996 and 1997, the Sheriff was required to seize any weapon used or threatened to be used in a domestic assault, and could only return the weapon upon acquittal or by Court order.
¶40 Our first charge in this case is to determine whether the court’s conclusions of law were correct. MacKay, ¶ 14. Our second charge is to determine whether the jury was presented with any credible evidence that, when viewed in a light most favorable to Vickie’s sons, would support its verdict that the Sheriff was negligent and that his negligence caused Vickie’s death. Ryan, 279 Mont. at 510, 928 P.2d at 229-30 and DeMars v. Carlstrom (1997), 285 Mont. at 336, 948 P.2d at 248.
¶41 A negligence cause of action entails four elements-duty, a breach of that duty, causation and damages. Henricksen, ¶ 20. When considering negligence claims against a public entity or person, such as Sheriff Thompson, it is necessary to consider the “public duty doctrine.” The public duty doctrine provides that a governmental entity cannot be held liable for an individual plaintiff s injury resulting from a governmental officer’s breach of a duty owed to the general public rather than to the individual plaintiff. Black’s Law Dictionary, Seventh Edition. In other words, “a duty owed to all is a duty owed to none.” Nelson v. Driscoll (1999), 295 Mont. 363, ¶ 21, 983 P.2d 972, ¶ 21. An exception to the public duty doctrine’s immunity provision arises when a “special relationship” between the victim and officer has been created. Nelson, ¶ 22.
¶42 As we explained in Nelson, a special relationship gives rise to a special duty, and can be established under any one of the following circumstances: 1) by a statute intended to protect a specific class of persons of which the plaintiff is a member from a particular type of harm; 2) when a government agent undertakes specific action to protect a person or property; 3) by governmental actions that reasonably induce detrimental reliance by a member of the public; and 4) under certain circumstances, when the agency has actual custody of the plaintiff or of a third person who causes harm to the plaintiff. Nelson, ¶ 22. We now turn to the question of whether such a special duty existed here.
¶43 The Massees maintain that the Sheriff had a special duty to Vickie by virtue of a special relationship that arose under the first circumstance listed in Nelson. They contend that the domestic abuse statutes were written specifically to protect domestic violence victims, a class of which Vickie was a member. Indeed, these statutes were enacted to prevent domestic abuse from escalating to a point of serious injury or death-Vickie’s exact fate. Significantly, Thompson agreed that Vickie was a member of the protected class of domestic violence victims. Moreover, during the trial, the District Court expressly concluded, “that Vickie falls within that statutorily protected class of victims of domestic violence, that ... title 46, chapter six, part six, domestic violence provisions. She is clearly a member of that class. And so [Sheriff Thompson] would have a duty to her under that.” Therefore, there was no question at trial-from either the parties or the court-that the Sheriff had a special duty to Vickie as a member of the protected class of domestic abuse victims.
¶44 Because it was undisputed at trial that Thompson had a special relationship with Vickie by virtue of her being within a statutorily-protected class, an exception to the public duty doctrine exists. Therefore, it is unnecessary for us to address the Massees’ request on appeal that we abrogate the public duty doctrine. Moreover, because it was undisputed that a special relationship was created between the Sheriff and Vickie under the domestic abuse statutes, we need not determine whether a special relationship was also created under the second circumstance listed in Nelson, as argued by the Massees.
¶45 With the undisputed existence of a duty running from the Sheriff to Vickie by virtue of her status as a domestic abuse victim, we must now determine whether credible evidence was presented to the jury to support its finding that the Sheriff breached that duty.
¶46 We first address the Massees’ claim that, at all times relevant to the case before us, the Sheriff had a statutory duty to provide Vickie with a notice of her rights under § 46-6-602, MCA. Such notice, as indicated above, informs victims of their rights to have an abuser arrested, to obtain orders of protection, and to remove an abuser from the home. It also provides a victim with information about community organizations and agencies specifically designed and created to offer assistance to domestic abuse victims.
¶47 The Sheriff testified that under the 1993 version of § 46-6-602, MCA, he was required to give Vickie notice only if he arrested Ray, and that because he did not arrest Ray, failure to give notice was not a violation. This testimony, however, was undermined by the Sheriffs further testimony (described in greater detail in ¶ 49 below) that during the December 1994 incident, he had substantial grounds to arrest Ray and, inexplicably, chose not to do so. He admitted that the preferred response under the law would have been arrest, at which time his obligation to give Vickie her notice rights would have become mandatory. The Sheriff also agreed that the 1995 version of the statute made it mandatory that he give notice whenever responding to a domestic abuse call, or a call which he suspected was a domestic abuse call. Moreover, the Sheriff repeatedly testified that despite having the notice forms available to him and having given them to numerous other Broadwater County abuse victims, he did not give Vickie notice of her victim’s rights at any time between 1994 and 1997. There was, therefore, substantial evidence from which the jury could conclude that, by failing to comply with the 1995 mandatory notice statute, the Sheriff was negligent, and arguably, negligent per se.
¶48 We now examine the Massees’ argument that the Sheriff breached his duty to arrest Ray and to seize Ray’s .44 magnum handgun on more than one occasion, and that such breach of duty caused Vickie’s death. We note that the jury was correctly instructed that the Sheriffs negligence was a cause of Vickie’s death if “it was a substantial factor in bringing it about.”
¶49 Throughout the trial, the Massees presented substantial evidence describing Ray wielding his pistol and making threats to kill himself and others. Specifically, in December 1994, a deputy of the BCSO stated in his report that he observed Ray holding a pistol to Vickie’s head. The Sheriffs report indicated that he heard, while en route to the Doggetts’ home, that Ray was holding a gun on Vickie. One of the deputies who responded to the call testified that Ray threatened him with bodily harm if the deputy did not leave Ray’s house. The Sheriff and various deputies testified that when the Sheriff arrived at the Doggetts’ house, within minutes, the Sheriff had to wrestle the loaded gun away from Ray to keep Ray from shooting himself. The Sheriff also testified that he had substantial grounds to arrest Ray for holding a gun to Vickie’s head and threatening a police officer and could likely have gotten a conviction. He further testified that it was, in part, his decision to not arrest Ray but he could not explain why that decision had been made. The Sheriff confiscated Ray’s gun for a short period of time after this incident, but returned it later.
¶50 Again, the Massees testified that in December 1996, Ray had pulled a gun on Vickie’s son, James, and his friend, Roger. James and Roger reported this incident to the BCSO. Later that evening, Ray called and threatened to kill Roger, as well as Vickie, James and Michael. Roger signed a written statement describing the threats. No investigation was undertaken, Ray was not arrested, nor was his gun seized. The law at that time mandated that a gun used or threatened to be used in a domestic event be confiscated. Contrary to the District Court’s categorization of this event as a “threatened suicide” that did not require confiscation of Ray’s gun under § 46-6-603, MCA, the Sheriff testified that Ray’s pointing of the gun at James constituted family member assault and did require that Ray’s gun be seized.
¶51 Lastly, evidence was presented that in April 1997, Vickie’s two younger sons, Michael and Marcus, called the BCSO reporting that Ray and Vickie were having a terrible argument. Marcus made the call while Michael went to get his .22 rifle for protection. Michael had seen Ray point a gun at Vickie before he retreated to his bedroom to stay with Marcus. Marcus did not report Ray’s gun to the dispatcher when he called because he had stayed in his room and was unaware that Ray had it. When the officers arrived, they found Ray’s loaded handgun in his bedroom. Testimony was presented that an officer unloaded the gun, returned the pistol to the bedside table, and left the bullets on the dresser. No officer who responded to the call ever investigated this incident or asked the boys or Vickie if Ray had used his gun that night. Had they asked the boys what happened, the deputies and/or the Sheriff would have had a mandatory obligation to arrest Ray, confiscate his gun, and give Vickie her notice of victim’s rights. However, they did not ask and did not follow up with any further investigation.
¶52 Over the course of the trial, several deputies testified that they believed Ray should have been arrested and taken into custody for his own protection or the protection of others, and that his handgun should have been seized and kept in accordance with the statute. Additionally, Dr. Mark Mozer, a clinical psychologist with more than thirty years experience, testified about his extensive work in assessing and evaluating persons with mental illnesses and behavioral problems. He stated that he had evaluated hundreds of cases involving battered spouses. He reviewed many of the Sheriffs logs and reports pertaining to emergency calls from the Doggetts’ household or response calls to the Doggetts’ home. He also listened to a summary of 9-1-1 calls from Vickie, Ray, and the boys, and he studied the Sheriffs deposition.
¶53 Dr. Mozer testified at length that Ray should have been arrested or taken into custody. He outlined the benefits that could have been derived by getting Ray into the judicial system, including alcohol treatment and a work program, which may have eased Ray’s depression. Moreover, this would have forced him to recognize that his behavior had consequences and “would have decreased the likelihood of further aggression and would have likely averted [this] tragic event.”
¶54 Dr. Mozer also stated that mandatory seizure of a weapon used or threatened to be used in a domestic assault situation is an “excellent idea,” because it removes a deadly weapon from a volatile situation and is an actual punishment for “bad behavior.” He pointed out that after the Sheriff confiscated Ray’s gun in December 1994 and refused to return it for a couple of months, the Doggetts did not request BCSO intervention for two years. He posited that removal of the gun could have, in part, cause this deceleration of calls to the Sheriffs Office. ¶55 Additionally, Dr. Mozer repeatedly emphasized the importance of having an objective third party inserted into a domestic violence or abuse situation. He explained that victims of recurring and ongoing violence tend to reach a state of “pervasive denial.” He opined that providing the statutorily-required victim’s notice increased the likelihood that the victim would get a third party involved. Such third party involvement, he stated, would help identify the various problems, both with the individuals involved and with their relationship, that could trigger violence. It would keep the victim from “forgetting” about the abuse the next morning, after the almost-inevitable apology is rendered. He maintained that third party agencies help a victim recognize and appreciate the seriousness of the situation and help them address it.
¶56 Dr. Mozer further opined that Vickie did not appreciate the dangerousness of her situation and that had she been told of resources available to her as an abuse victim, and utilized those resources, a treatment plan for the problems may have been developed and kept on track.
¶57 In addition, and importantly to our analysis, the Sheriff himself testified that the purpose of notifying victims of their rights is to help them understand the dangerousness of their situation. He agreed that domestic abuse victims rarely recognize this danger but, nonetheless, look to law enforcement for protection. Thus, the District Court’s conclusion in its Decision and Order as a matter of law that “There was no evidence at trial connecting the failure of Thompson to provide such notice with Vickie’s death” (see ¶ 23) was patently wrong.
¶58 The Sheriff offered no expert or lay testimony to refute Dr. Mozer’s testimony that this tragic event “would have likely [been] averted” had the Sheriff taken any or all of the above actions. In addition, both defense witnesses-the Undersheriff and one of the deputies who had responded to calls to the Doggetts’ home-agreed with the Massees’ claims that Ray should have been arrested and his weapon seized.
¶59 With the foregoing evidence in mind, we now turn to the District Court’s conclusion that, because the “arrest” duty was discretionary, not mandatory, the Sheriff could not be held liable for failing to arrest. We also consider the court’s conclusion that, because the mandatory weapon seizure statute applied only to the December 1996 and April 1997 events, and those events did not give rise to a mandatory duty to seize the weapon, that statute was not violated. In that these legal conclusions formed the basis for the court’s determination that no duty was owed to Vickie, we must examine them for correctness. MacKay, ¶ 14.
¶60 Throughout this Opinion, we have set forth significant testimony-from the Massee sons and other witnesses, and, most importantly, from the Sheriff and his deputies-that the Sheriff negligently failed to give notice to Vickie of her statutory rights, that he failed to confiscate Ray’s gun, and that he failed to arrest Ray when he should have. There was also undisputed testimony from the Massees’ experts that these failures were a substantial factor in bringing about Vickie’s death. This being so, it was error for the District Court to conclude as a matter of law that, 1) violation of the mandatory notice statute could not support a verdict of negligence; 2) the mandatory “weapon seizure” statute did not apply to the December 1996 family member and domestic assault incident; and 3) because the “arrest” statute imposed no mandatory duties on the Sheriff, its violation could not support a verdict of negligence against the Sheriff. As we discussed above, a jury may base a finding of negligence upon evidence of violation of a statute, even if violation of the statute is not necessarily negligence per se. Nehring, 219 Mont. at 468, 712 P.2d at 1333.
¶61 There is nothing in the record that indicates upon which theory of negligence the jury’s verdict was based. The special verdict completed by the jury simply asked whether the Sheriff was negligent as defined by the instructions, and, if so, whether his negligence was a cause of the Massees’ injuries or damages. The jury responded “yes” to both questions. The jury could well have premised its verdict, in whole or in part, upon its conclusion that the Sheriff negligently violated one, two, or all three of the domestic abuse statutes. Such a conclusion would be permitted under the law, regardless of whether negligence per se instructions were or were not given.
¶62 We conclude that the Massees presented sufficient evidence to the jury for it to conclude under the common law negligence jury instructions that the Sheriff “failed to use reasonable care” and failed to act “as an ordinarily prudent sheriff or deputy would act under the circumstances.” Contrary to the District Court’s finding, they also presented sufficient evidence for the jury to determine that the Sheriff was negligent per se for failing to give the required notices, and that such failure was a substantial factor in bringing about Vickie’s death. Moreover, as to causation, it is the fact finder’s responsibility to determine the credibility of a witness and to attribute the amount of weight appropriate to a witnesses’ testimony. See Sandman v. Farmers Ins. Exchange, 1998 MT 286, ¶ 40, 291 Mont. 456, ¶ 40, 969 P.2d 277, ¶ 40. This Court will not substitute its judgment for that of the fact finder. See State v. Felando (1991), 248 Mont. 144, 148, 810 P.2d 289, 291. The jurors were polled on the question of causation, and nine members determined that the Sheriffs negligence satisfied the causation element of the negligence claim.
¶63 Lastly, we address the concern that a ruling for the Massees would “signify an erosion of law enforcement’s discretion” and render such discretion “illusory.” Amicus Montana Sheriffs and Peace Officers Association argues that Thompson acted within his lawful discretion in this case and that this Court should not “second-guess law enforcement officers when they are acting within their lawful discretion.” We are not engaging in any such endeavor. We reiterate that while the “arrest” statute bestows discretion, the Sheriffs duties under both §§ 46-6-602 and -603, MCA, were not discretionary but mandatory. As noted above, we simply conclude that, on these facts and under the law as given to the jury, the jury had before it sufficient credible evidence to conclude that the Sheriffs negligence or negligent per se conduct led to Vickie’s death. This being so, the entry of judgment to the contrary was not properly granted. Ryan, 279 Mont. at 510, 928 P.2d at 229-30.
CONCLUSION
¶64 Based on the foregoing, we conclude sufficient credible evidence was presented to the jury to support its verdict. We further conclude that the District Court’s legal conclusions underlying its entry of judgment as a matter of law were incorrect. Therefore, we reverse the District Court’s Decision and Order granting Sheriff Thompson’s and Broadwater Comity’s Motion for Judgment as a Matter of Law, and reinstate the jury verdict and subsequent judgment dated March 20, 2003, in favor of the Massees.
CHIEF JUSTICE GRAY, JUSTICES WARNER and REGNIER concur.
The Massees also argued that the Sheriff failed to comply with § 46-6-601, MCA (1993 and 1995). We will not discuss this statute or its application to this case because no evidence was presented that violation of this statute caused Vickie’s death.
However, the court later acknowledged that the “weapon seizure” statute did impose mandatory duties.
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MR. JUSTICE SHEEHY
delivered the opinion of the Court.
Ricky Eldon Worden appeals from his conviction of the crime of robbery in violation of section 45-5-401, MCA. Specifically, Worden alleges the District Court, First Judicial District, Lewis and Clark County, erred in denying Worden’s motion to dismiss for lack of speedy trial.
On November 30, 1978, Worden was charged by information in Lewis and Clark County with the crime of robbery. At this same time, Worden was incarcerated and charged in Phillips County, Montana, on three counts of deliberate homicide, three counts of aggravated kidnapping, and one count each of robbery, theft, burglary and conspiracy.
On December 13, 1978, Worden was arraigned before the District Court, Lewis and Clark County, and pleaded not guilty to the charge of robbery. At the hearing, Worden served notice of his intent to rely on the defense of mental disease or defect and moved the District Court for an order authorizing Worden’s transfer to Warm Springs State Hospital for a psychiatric evaluation. The motion was granted. The State moved to quash the order. The District Court did not rule on the State’s motion, yet the Lewis and Clark County sheriff transported Worden to Malta after the hearing rather than to Warm Springs. The State’s motion to quash was subsequently denied on December 28, 1978.
On February 15, 1979, the State moved for a continuance due to conflicts with the proceeding against Worden in Phillips County. The State moved to withdraw this motion on March 8, 1979. The District Court denied the withdrawal motion, and Worden for mally filed a motion to dismiss for lack of a speedy trial. Worden’s motion was also denied.
On March 19, 1979, Worden was taken to Warm Springs for the psychiatric evaluation. An omnibus hearing was held on May 3, 1979. Worden was not present at the hearing despite his prior request. Defense counsel insisted on Worden’s presence, and the District Court ordered Worden be transferred from Malta where Worden was incarcerated on the Phillips County charges. The omnibus hearing was reset for May 24, 1979, and defense counsel reasserted his client’s right to a speedy trial. Worden again moved to dismiss for lack of a speedy trial on October 2, 1979. The motion was denied.
Worden’s trial began on October 15, 1979. Just prior to the trial, Worden again moved to dismiss for lack of a speedy trial. This motion was also denied. At trial, Worden called no witnesses on his behalf and offered no exhibits. Upon his conviction, Worden was sentenced to forty years in the Montana State Prison. The sentence is to run consecutively with Worden’s sentence on the Phillips County charges, and since Worden was found to be a dangerous offender, he is ineligible for parole.
The sole issue upon appeal is whether the District Court erred in denying Worden’s motion to dismiss for lack of a speedy trial. We find no error.
Each speedy trial case must be considered on an ad hoc basis. We must balance the conduct of both the State and Worden keeping in mind the length of the delay, the reason for the delay, Worden’s assertion of the right and any prejudice to Worden. We will examine each of these factors in turn.
A. Length of Delay.
The length of the delay is a triggering device. There is no need to examine the other three factors unless some delay has occurred which is deemed presumptively prejudicial. What length will be deemed presumptively prejudicial depends on the facts of each individual case. A longer delay will be tolerated in a complex case than would be tolerated in one involving a simple fact situation. State v. Harvey (1979), 184 Mont. 423, 603 P.2d 661, 667.
The passage here of 319 days from the date the information was filed to the date of the trial is sufficient to shift to the State the burden of explaining the reason for the delay and showing the absence of prejudice to Worden. This was not a complex cause. Any complexity was due to the fact that the State chose to proceed with this cause at the same time Worden was being tried on the Phillips County charges. Moreover, the delay here is longer or comparable to the “triggering” delays in State v. Harvey, supra (229 days); State v. Dess (1979), 184 Mont. 116, 602 P.2d 142 (249 days); State v. Freeman (1979), 183 Mont. 334, 599 P.2d 368 (207 days); State v. Tiedemann (1978), 178 Mont. 394, 584 P.2d 1284 (I6½ months); State v. Cassidy (1978), 176 Mont. 385, 578 P.2d 735 (246 days); State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., etc. (1977), 173 Mont. 516, 568 P.2d 162 (7 months); State ex rel. Sanford v. District Court (1976), 170 Mont. 196, 551 P.2d 1005 (10 months); and Fitzpatrick v. Crist (1974), 165 Mont. 382, 528 P.2d 1322 (11 months).
B. Reason for Delay.
Different weights will be assigned to different reasons for the delay. Thus, intentional delay will weigh more heavily than delays which are inherent in the system. State v. Harvey, supra, 603 P.2d at 667.
Most of the delay here was due to the State’s conduct. This should weigh heavily against the State. After the arraignment, Worden was transferred to Malta rather than to Warm Springs as ordered by the District Court. Similarly, at least two pretrial hearings had to be rescheduled due to the State’s failure to appear. Finally, much of the delay was caused by the State’s failure to have Worden present at pretrial hearings despite Worden’s express desire to do so. The State refused voluntarily to bring Worden to Lewis and Clark County and mistakenly insisted the District Court was without any power to order Worden’s presence.
The other major cause of the delay was institutional delay inherent in the system. While this cause weighs less heavily against the State, it still must be considered. The State bears the burden of bringing a defendant to trial. State v. Harvey, supra, 603 P.2d at 667.
C. Assertion of Right.
The defendant’s assertion of his speedy trial right is entitled to great weight in determining a deprivation of that right. State v. Bretz (1979), 185 Mont. 253, 605 P.2d 974, 983. Here, Worden asserted his speedy trial right on six separate occasions throughout the period of the delay.
The State asserts Worden was not really interested in a speedy trial as evidenced by Worden’s lack of preparation for trial and the number and order of motions filed by Worden. The contention is without merit. Defense counsel was prepared for each stage of the proceedings. Moreover, defense counsel tried to expedite the proceedings on several occasions. Next, the State relies heavily on State v. Carden (1977), 173 Mont. 77, 566 P.2d 780, in this regard, but that case is clearly distinguishable.
D. Prejudice.
This factor must be weighed with regard to the three interests which the speedy trial right is intended to protect. These interests are avoiding oppressive pretrial incarceration, minimizing the anxiety and concern of the accused, and limiting the possibility of impairing the accused’s defense. State v. Harvey, supra, 603 P.2d at 668. In this cause, no prejudice is attributable to the State.
There is no evidence of oppressive pretrial incarceration here. Worden was incarcerated for over ten months prior to his trial, but that incarceration was due in large part to unrelated offenses. This Court cannot attribute any prejudice from that incarceration to the cause at hand. We cannot assess fault by any precise means. State v. Harvey, supra, 603 P.2d at 668.
Worden has not demonstrated any undue anxiety and concern resulting from the delay here. For the most part, any anxiety and concern was due to Worden’s incarceration on the unrelated charges. Any anxiety and concern suffered from those charges cannot be charged against the State here. State v. Harvey, supra, 603 P.2d at 668.
Worden has not demonstrated any factors which show an impairment of his ability to prepare a defense. At trial, Worden had no defense; he did not call any witnesses nor offer any exhibits. State v. Dess, supra, 602 P.2d at 146. Moreover, there has been no showing of what defense would have been presented but for the delay and how that defense was impaired by the delay.
E. Balance.
No one factor in the speedy trial analysis is necessary in all circumstances or sufficient alone to determine a deprivation of the speedy trial right. All factors must be considered together with such other factors as might be relevant. This Court must engage in a difficult and sensitive balancing process. State v. Dess, supra, 602 P.2d at 146.
The ordinary procedures for criminal prosecution are designed to move at a deliberate pace. Here, the cause did not progress in as orderly and deliberate a step by step progression to trial as it might have. This was not a difficult cause. Yet, Worden has not demonstrated any prejudice whatsoever from the delay. Worden presented no defense at trial. Therefore, it is hard to imagine how Worden was prejudiced from any denial of his speedy trial right.
Having found no error in the District Court’s denial of Worden’s motion to dismiss for lack of a speedy trial, Worden’s conviction on the charge of robbery is affirmed.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY and HARRISON, concur.
|
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] |
MR. JUSTICE C. SHEEHY
delivered the opinion of the Court.
Timothy Wogomon appeals from a conviction on the charge of criminal sale of dangerous drugs in violation of section 45-9-101, MCA. The conviction was entered in the District Court, Fourteenth Judicial District, Musselshell County.
On October 27, 1977, at 7:00 p. m., Musselshell County Sheriff Brian Neidhardt received a telephone call from Betty Holiday, postmaster in Musselshell, Montana. Holiday wanted Neidhardt to investigate the suspicious activity of a group claiming to be a data research organization. The group had recently moved into a boarded-up house across the street from the Musselshell post office.
At about 9:00 a. m. the next morning, Friday, October 28, Neidhardt and Deputy Sheriff Floyd Fisher went to Musselshell to investigate the group’s activity. Upon reaching Musselshell they located the house and knocked on the door. A man, later identified as Donald Wogamon, answered the door. Neidhardt introduced himself. Mr. Wogamon acknowledged the introduction and allowed the officers to enter the house.
Neidhardt explained the nature of the sheriff’s visit to Mr. Wogamon. Mr. Wogamon said the group worked for Union Carbide and was researching the stability of a solvent. Neidhardt could see laboratory equipment in the kitchen.
Neidhardt asked if he could look around. Mr. Wogamon did not respond. Neidhardt briefly looked into the kitchen. Not suspecting any illegal activity, Neidhardt returned to the front door. On his way to the front door, he saw a young man in the hallway. The young man, later identified as the defendant, was acting nervously.
Mr. Wogamon suggested the two sheriffs accompany him across the street to the hotel to talk. On the way over, Mr. Wogamon introduced himself as “Bill Gibbs”. At the hotel, he handed Neidhardt a business card with that name and a California telephone number on it. As Neidhardt wrote the information down, Mr. Wogamon said he had federal funds for the solvent project and had located in Musselshell for a “tax write-off.” Neidhardt gave the card back. After a brief talk, Neidhardt and Fisher walked back to their car and drove back to Roundup.
When the sheriffs reached Roundup at 10:33 a. m., Holiday was again talking on the telephone with the sheriff’s office. While Mr. Wogamon was talking with the sheriffs, the defendant ran through the alley looking over his shoulder as he ran. He ran to the hills. Later, the defendant sneaked back to the house and peeked around the corner at the sheriff. Now, the two men were frantically loading boxes into a van and a car.
Neidhardt called the Drug Enforcement Administration (DEA) and talked to agent Don Friend. They discussed what Neidhardt had observed in Musselshell and whether it could be a drug laboratory. Neidhardt also told Friend about meeting “Bill Gibbs.” Friend described “Bill Gibbs” to Neidhardt. The description did not match the man Neidhardt knew as Bill Gibbs. Neidhardt was told to return to Musselshell since the operation could be a drug laboratory.
Neidhardt, Fisher and Deputy Sheriffs Bill Perry and George Raczek returned to Musselshell. Upon reaching Musselshell, Neidhardt parked his car on the east side of the house. Mr. Wogamon came around the corner of the house as Neidhardt exited from his car. Neidhardt asked why the vehicles were being loaded up so fast. Mr. Wogamon explained the laboratory was being moved to the hotel. This seemed suspicious to Neidhardt. Mr. Wogamon had earlier said he did not intend to move the laboratory. Neidhardt next asked why the windows were boarded up. He was told it was to keep offensive odors inside so the neighbors would not be upset. Neidhardt thought this was strange since no neighbors were in the area.
Mr. Wogamon then invited Neidhardt inside the house to look around. Once inside, Neidhardt asked if he could write down the names of the chemicals. Mr. Wogamon consented, and Neidhardt walked through the house writing the names down.
When they were outside again, Neidhardt asked Mr. Wogamon to come to Roundup so Neidhardt “could check things out.” Mr. Wogamon agreed and went to lock up the buildings. While Mr. Wogamon was gone, Neidhardt saw the defendant and asked him his name. He answered, “Timothy Gibbs.” When Mr. Wogamon returned, Neidhardt asked Mr. Wogamon to ride with Neidhardt and the defendant to ride with Perry. Mr. Wogamon agreed, but the defendant did not answer.
Upon leaving Musselshell, neither Wogaman was handcuffed, but Perry did give the defendant a “pat-down” search. Neidhardt radioed a “10-15” to the Musselshell sheriff’s office. This code technically means “prisoner in custody,” but the Musselshell sheriff’s office also uses it to mean another person present. Neidhardt also asked the sheriff’s office to call and have County Attorney John Pratt present when the group arrived in Roundup.
Upon arriving in Roundup at 11:45 a. m., Mr. Wogamon and the defendant were taken to the visitor’s section of the jail. Mr. Wogamon asked permission to call his attorney. While the call was being made, Neidhardt went to the jail’s backroom to call the DEA. During this time no one told the Wogamons where they should stay while they were in the sheriff’s office. Jerry Jones, an FBI agent, was in the backroom. Jones told Neidhardt “Bill Gibbs” was really Donald Wogamon. Neidhardt then called the DEA and gave agent Friend the list óf chemicals.
County Attorney Pratt showed up while Neidhardt was in the backroom. After his telephone call, Neidhardt told Pratt what had transpired. They discussed charging the Wogamons with unsworn falsification to authorities, a misdemeanor. Section 45-7-203, MCA.
At about 11:55 a. m., agent Friend called back. He told Neidhardt the list of chemicals contained all the necessary ingredients for making methamphetamine except one, phenyl-2-propanone. Neidhardt immediately sent Perry back to Musselshell to secure the house. Neidhardt did not attempt to verify Friend’s information. After talking with Neidhardt, Pratt concluded there was enough information for a search warrant.
At about 12:12 p. m., Mr. Wogamon and the defendant were “booked” for unsworn falsification to authorities. A short time later, a complaint charging Mr. Wogamon with that crime was drawn up. It was discovered the defendant could not be charged with this crime. It requires a written instrument, and the defendant had merely lied to the sheriffs. Section 45-7-203, MCA. After lunch, the complaint was presented to Justice of the Peace Amanda Scott and signed in her presence. An arrest warrant for Mr. Wogamon was issued, and bond was set at $300.
About this same time, a search warrant for the Musselshell property was issued by the District Court. The warrant covered a three block area in Musselshell including 27 lots. It covered all five buildings in the three block area, a van and a 1971 Chevrolet. The search warrant authorized a search for dangerous drugs. Neither the name “Timothy Wogamon” or “Timothy Gibbs” appeared on the search warrant or the application therefore.
Neidhardt took the complaint and the arrest warrant to the sheriff’s office. However, upon reaching the office, he discovered the search warrant for the Musselshell property was ready. Neidhardt gave the arrest warrant to some officers, told them to serve it on Mr. Wogamon and told them to release the defendant. Then, Neidhardt took Mr. Wogamon’s keys to unlock the Musselshell buildings, and left immediately with Pratt for Musselshell.
While the defendant was being released from jail at about 3:30 p. m., Neidhardt called the sheriff’s office and ordered that the defendant be arrested again on a charge of criminal sale of dangerous drugs. Raczek informed the defendant of the new charge and booked him for that crime.
The search of the Musselshell property covered a three day period. In addition, Mr. Wogamon’s wallet was searched on at least two different occasions. All together, some 200 items were seized.
On Monday, October 31, 1977, the defendant was arraigned at 1:30 p. m. The defendant was served with an arrest warrant for the first time immediately before the arraignment.
Prior to trial, the defendant moved to suppress all evidence seized from the Musselshell property and from Mr. Wogamon’s wallet. The District Court denied the motion on the grounds that the defendant lacked standing to challenge the search and the motions were substantively without merit.
The defendant’s trial began on October 31, 1978. Upon his conviction, the defendant was sentenced to serve 15 years in the state penitentiary with 13 years suspended.
Seven issues have been raised for review. They may be summarized as follows:
(1) Whether court’s instruction no. 1, items 6 and 7, are unconstitutional under Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.
(2) Whether it was error to deny the defendant’s motions to suppress the evidence based upon an illegal arrest, an illegal detainer and lack of probable cause to issue a search warrant.
(3) Whether it was error to deny motions to dismiss the charge against the defendant for denial of a speedy trial and for lack of probable cause to file an information.
(4) Whether it was error to allow the State to call an alibi rebuttal witness without first giving notice to the defendant prior to trial.
We have carefully examined all the issues raised by the defendant. The only issue with substantive merit is the challenge to court’s instruction no. 1, item 7. We agree with the defendant that court’s instruction no. 1, item 7, is reversible error.
Sandstrom v. Montana, supra, has resulted in a spate of appeals to this Court claiming instructional error. We have since determined the applicability of the Sandstrom decision in the original conviction of Sandstrom himself, State v. Sandstrom (1979), 184 Mont. 391, 603 P.2d 244; and in State v. Sunday (1980), 187 Mont. 292, P.2d; State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343; State v. Hamilton (1980), 185 Mont. 522, 605 P.2d 1121; State v. Bad Horse (1980), 185 Mont. 507, 605 P.2d 1113; State v. Hardy (1980), 185 Mont. 130, 604 P.2d 792; State v. Williams (1979), 185 Mont. 140, 604 P.2d 1224; and State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000.
Until today, only in State v. Sandstrom, supra, have we found a reason under the United States Supreme Court Sandstrom decision to reverse the state court conviction and remand the same for retrial. In the other cases, we have distinguished Sandstrom v. Montana, supra, as not controlling. However, we cannot do that here with respect to court’s instruction no. 1, item 7.
“Court’s instruction no. 1, items 6 and 7 read as follows:
“6. Purpose or knowledge is manifested by the circumstances connected with the offense. Purpose or knowledge need not be proved by direct evidence, but may be inferred from acts, conduct and circumstances appearing in evidence.
“7. The law presumes that a person intends the ordinary consequences of his voluntary acts.”
Court’s instruction no. 1, item 6, is a permissive inference. It allows, but does not require, the jury to infer ultimate facts from basic facts adduced by the State. No burden of proof is placed upon the defendant. Ulster County Court v. Allen (1979), 442 U.S. 140, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 792; State v. Coleman, supra.
Since a permissive inference is involved, the defendant must show the invalidity of the inference as applied to him. He must show there is no rational way under the facts of this cause for the jury to make the connection permitted by the inference. Otherwise, there is no risk the presumptively rational jury will use the inference to make an erroneous factual determination. Ulster County Court v. Allen, supra. The defendant has not carried his burden of proof upon appeal.
We cannot say the same for court’s instruction no. 1, item 7, however. This instruction is reversible error under Sandstrom v. Montana, supra.
The State contends Sandstrom is distinguishable from this cause. Sandstrom involved a deliberate homicide which requires proof of a purposeful or knowing voluntary act which causes a particular result, the death of a human being. Under these circumstances, the instruction directs the jury to find intent if it finds a voluntary act and the ordinary consequence of that act was the victim’s death. According to the State, the defendant here, however, was only charged with intending to commit a voluntary act, purposely, knowingly and unlawfully manufacturing a dangerous drug. In the State’s view, the jury need only have found the defendant intended to engage in a voluntary act to impose criminal liability; the jury need not have found any ordinary consequence. Thus, according to the State, Sandstrom v. Montana, supra, is not implicated, and the instruction was superflous.
The State’s contention is inviting but misleading. To sustain the charge against the defendant, the State needed to prove beyond a reasonable doubt that the defendant purposely or knowingly manufactured a dangerous drug, as defined in section 50-32-101, MCA. Section 45-9-101, MCA. The voluntary act here is manufacturing. The ordinary consequence is a dangerous drug. Under this framework, court’s instruction no. 1, item 7, directed the jury to presume intent, purposely or knowingly, upon proof by the State of a voluntary act, manufacturing, and that act’s ordinary consequence, a dangerous drug.
As a result, the instruction conflicts with Sandstrom v. Montana, supra. Given the lack of qualifying instructions, a reasonable jury may have interpreted the instruction in either of two impermissible ways. First, the jury may have interpreted the instruction as a conclusive presumption. If so, the State would be relieved from proving a necessary element of the crime charged, intent. This would violate In Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Second, the jury may have interpreted the instruction as shifting the burden of proving lack of intent to the defendant upon proof by the State of the defendant’s voluntary act and its ordinary consequence. If so, this would violate Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508.
In order for federal constitutional error to be harmless, we must declare a belief that the error was harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. We must determine the impact of the erroneous instruction upon a reasonable jury, and to constitute harmless error, we must be able to agree as a Court that the offensive instruction could not reasonably have contributed to the jury’s verdict. State v. Sandstrom, supra, 603 P.2d at 245, 36 St.Rep. at 2100.
We cannot do that here. The evidence of intent here is not overwhelming. With regard to this issue, the State’s case against the defendant was based entirely upon circumstantial evidence.
Therefore, the cause is reversed and remanded to the District Court for retrial consistent with this opinion and the guidelines established by Sandstrom.
MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEA, concur.
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] |
MR. CHIEF JUSTICE HASWELL
delivered the opinion of the Court.
Plaintiff-respondent Tim Clawson brought this action for the cancellation of an oil and gas lease in the District Court for the Fifteenth Judicial District, Sheridan County. The Court found that Clawson, the lessor, was entitled to cancellation and a recorded release of the lease. Defendant Ronald Berklund, the lessee, appeals from the judgment.
Tim Clawson and Ronald Berklund entered into an oil and gas lease covering a portion of Clawson’s land on September 30, 1977. According to the terms of the lease; it was to terminate unless an oil or gas well was commenced or an annual rental of $720 was paid by the lessee on or before March 10, 1979.
Two $5,400 sight drafts were issued in conjunction with the lease agreement on September 30, 1977, one being a 15 day sight draft (Draft No. 1), the other a 160 day sight draft (Draft No. 2). The drafts contained writing that they were “bonus consideration” for executing the oil and gas lease.
Both drafts were sent for collection to Midland National Bank (Midland) in Billings, Montana, by the Security State Bank of Plentywood, Montana (Security State). Midland acknowledged receipt of both drafts on October 4, 1977. Draft No. 1 was paid. Payment on Draft No. 2 was received by Tim Clawson on March 15, 1978. Mr. Clawson treated the draft as dishonored, contending that payment was due on March 13, 1978; 160 days from October 4, 1977, exclusive of October 4, is March 13, 1978.
The lease was recorded in Sheridan County by Ronald Berklund on October 6, 1977. This action was initiated on December 11, 1978, and sought the cancellation of the lease and a recorded lease. Ronald Berklund has never tendered payment of the annual rental which was to be paid by March 10, 1979.
The District Court found that the defendant failed to comply with the lease agreement by not making timely payment of sight Draft No. 2 and by failing to make the annual rental payment as agreed. As a result, plaintiff was entitled to a release of the lease filed by the defendant.
The following issues have been considered on appeal:
(1) Whether defendant made a timely payment of Draft No. 2?
(2) In the event the payment of Draft No. 2 was untimely, whether it rendered the alleged oil and gas lease invalid?
(3) In the alternative,' if the lease was valid, did it terminate by reason of a failure to tender payment of the annual rental which was due on March 10, 1979, which date was after litigation concerning the validity of the lease had commenced?
The issue concerning timeliness of payment requires an examination of the provisions of the Uniform Commercial Code (UCC). Draft No. 2 appears substantially as follows:
As a result, Ruth Berklund is the drawer, defendant Ronald Berklund is the drawee, and plaintiff Tim Clawson is the payee under the UCC. Midland is a collecting bank under section 30-3-120, MCA, by virtue of the collect directly “through” language. See Engine Parts, Inc. v. Citizens Bank of Clovis (1978), 92 N.M. 37, 582 P.2d 809, 813.
Section 30-3-501(l)(a), MCA, provides that “presentment for acceptance is necessary to charge the drawer and endorsers of a draft where ... its date of payment depends upon such presentment.” Section 30-3-504, MCA, defines presentment and explains how it is to be made.
“30-3-504. How presentment made. (1) Presentment is a demand for acceptance or payment made upon the maker, acceptor, drawee or other payor by or on behalf of the holder.
“(2) Presentment may be made:
“(a) by mail, in which event the time of presentment is determined by the time of receipt of the mail; or
“(b) through a clearinghouse; or
“(c) at the place of acceptance or payment specified in the instrument or if there be none at the place of business or residence of the party to accept or pay. If neither the party to accept or pay nor anyone authorized to act for him is present or accessible at such place presentment is excused.”
The principal issue in the present appeal is when the presentment was made upon defendant Ronald Berklund, the drawee, to commence the 160 day period. No date of presentment is written on the draft or contained in the record. The only evidence concerning a date in the collection process is Midland’s acknowledgement of receipt of the item on October 4, 1977.
Section 30-3-409, MCA, provides that a drawee is not liable on a draft until he accepts it, and section 30-3-410, MCA, provides as follows:
“30-3-410. Definition and operation of acceptance. (1) Acceptance is the drawee’s signed engagement to honor the draft as presented. It must be written on the draft, and may consist of his signature alone. It becomes operative when completed by delivery or notification.
“(2) A draft may be accepted although it has not been signed by the drawer or is otherwise incomplete or is overdue or has been dishonored.
“(3) Where the draft is payable at a fixed period after sight and the acceptor fails to date his acceptance the holder may complete it by supplying a date in good faith.” (Emphasis added.)
Defendant Berklund never signed the draft and no date was ever written on the draft other than the issuance date, September 30, 1977. Instead, he attempted payment by a Midland bank draft dated March 14, 1978, which was received by Security State on March 15, 1978. Plaintiff Tim Clawson contends that since Berklund never provided a date of presentment he may supply the presentment date of October 4, 1977. Plaintiff asserts that this date is supplied in good faith since Midland received Draft No. 2 on October 4 and Mr. Berklund has an office in the same building. Further, Mr. Berklund specified his address on the draft as “605 Midland Bank Bldg.”
We find plaintiff’s contention meritorious in light of Official Comment 6 to UCC § 3-410 and the underlying UCC policy of providing a definite time within which to make payment. The comment provides:
“6. Subsection (3) changes the last sentence of the original Section 138. The purpose of the provision is to provide a definite date of payment where none appears on the instrument. An undated acceptance of a draft payable ‘thirty days after sight’ is incomplete; and unless the acceptor himself writes in a different date the holder is authorized to complete the acceptance according to the terms of the draft by supplying a date of presentment. Any date which the holder chooses to write in is effective providing his choice of date is made in good faith. Any different agreement not written on the draft is not effective, and parol evidence is not admissible to show it.” (Emphasis added.)
Pursuant to section 30-3-410(3), MCA, and Official Comment 6 we find that respondent Tim Clawson may supply a date of presentment when the drawee fails to provide his written acceptance or date thereof. As a result, payment was not received within the 160 day period. Section 30-3-507, MCA, provides that a draft is dishonored when “due acceptance or payment is refused or cannot be obtained within the prescribed time.” Thus, plaintiff was entitled to treat the draft as dishonored since payment was due on March 13, 1978 and not received until March 15, 1978.
Next, we must consider the effect of untimely payment upon the oil and gas lease. It is well established that instruments between the same parties, involving the same subject matter and executed on or about the same date are to be considered as one agreement. Hoerner Waldorf Corp. of Montana v. Bumstead-Woolford Co. (1972), 158 Mont. 472, 494 P.2d 293. In addition, parties must be presumed to contract with reference to the law in force at the time and place of the contract. Moses v. School Dist. No. 53, Lincoln County (1938), 107 Mont. 300, 86 P.2d 407. Further, a series of Montana cases have held that oil and gas leases are to be construed liberally in favor of the lessor and against the lessee, that time is of the essence even though the contract does not so provide, and that forfeiture is favored in oil and gas leases. Christian v. A. A. Oil Corp. (1973), 161 Mont. 420, 506 P.2d 1369; Solberg v. Sunburst Oil & Gas Co. (1926), 76 Mont. 254, 246 P. 168. Consequently, the two sight drafts are a part of the lease agreement, the parties must be presumed to contract with reference to the UCC, and the lease is to be liberally construed in favor of the lessor. Appellant failed to pay Draft No. 2 in compliance with the previously discussed provisions of the UCC. Especially in light of the liberal construction of oil and gas leases in favor of the lessor, respondent was entitled to a cancellation and recorded release as a result of Mr. Berklund’s breach.
Since the issues previously discussed are determinative of this appeal, we need not reach the issue concerning the appellant’s failure to tender payment of the annual rental after this suit to cancel the lease was commenced.
The judgment of the District Court is affirmed.
MR. JUSTICES DALY, HARRISON, SHEA and SHEEHY, concur.
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] |
MR. JUSTICE SMITH
delivered the opinion of the court.
This is an appeal by the plaintiff from a judgment on the pleadings, rendered by the district court of Silver Bow county, in favor of the defendant, dismissing the complaint.
The facts disclosed by the various pleadings are: That in July, 1904, the assessor of Silver Bow county assessed to the estate of George H. Tong, deceased, “the sum of $98,975 for pretended not proceeds of the Goldsmith quartz lode mining claim for the year ending May 31, 1904." A tax of $2,683.22 was levied pursuant to said assessment. Prior to January 14, 1904, the legal title to the mining claim was held by the State Savings Bank of Butte, as security for the payment of a debt of $67,692.24 incurred by Tong in his lifetime. Of the said $98,975, the sum of $31,282.76 was paid to the plaintiff as executrix, and the balance of $67,-692.24 was paid to the savings bank while it was the owner of the mining claim, to take up certain notes held by it as evidences of the indebtedness aforesaid, and the estate then took over the title to the property. These sums were paid by one Ellingwood, who was working the mine under an arrangement with George H. Tong, now deceased, by which he was to pay twenty-five per cent of the net proceeds to Tong as a royalty. The plaintiff designates this royalty as “rental only.” There is not any suggestion in the pleadings that the balance of the net proceeds, amounting to nearly $300,000, was not properly taxed, and we assume, therefore, that the tax thereon was paid by Ellingwood, although the matter is immaterial. There is an allegation in the complaint that “plaintiff never was engaged in mining upon said claim, nor in operating said mine, personally, or as executrix, or at all.” The answer alleges, among other things, “that said Tong in his lifetime, and during all the times mentioned in the complaint, the said estate of Tong was engaged in the actual operation of said mine and in the extraction of ore therefrom.” This allegation is denied in the reply. The action was brought to enjoin the county treasurer from selling the mining claim for nonpayment of the taxes aforesaid.
It is contended for the appellant that the pleadings raised a question of fact as to whether Tong, or his estate, was “engaged in mining” within the meaning of section 2563 of the Revised Codes, and therefore the court erred in rendering judgment on the pleadings. The section referred to reads as follows: “Every person, corporation or association engaged in mining upon any quartz vein or lode, or placer mining claim, containing gold, silver, copper, coal, lead or other valuable mineral deposits, must, between the first and tenth days of June in each year, make out a statement of the gross yield of the above-named metals or minerals from each mine owned or worked by such person, corporation or association during the year preceding the first day of June, and the value thereof. Such statement must be verified by the oath of such person, or the superintendent or managing agent of such corporation or association, who must deliver the same to the assessor of the county in which such mine or mines are situated.”
Section 3 of Article XII of the Constitution of the state reads, in part, as follows: ‘ ‘ The annual net proceeds of all mines and mining claims shall be taxed as provided by law. ’ ’
Section 2500, Revised Codes, provides that the annual net proceeds of all mines and mining claims shall be taxed as other per sonal property. Section 2571, Revised Codes, declares that such tax “is a lien upon the mines or mining claims from which the ores or minerals are extracted, which lien attaches on the first Monday of March in each year, and the sale thereof for delinquent taxes may be made as provided for the sale of real estate for delinquent taxes.”
An analysis of these Code provisions renders the method of procedure thus outlined by the legislative assembly, pursuant to the mandate of the Constitution, for the guidance of the taxing authorities, very plain. The net proceeds of all mines and mining claims are taxable the same as other personal property; but the assessor is not required to follow up such proceeds in order to insure the collection of the tax, or to rely upon the solvency of the person who receives the money. The tax is a lien upon the mine from which the ores or minerals were extracted.
We find in this case an admission on the part of the plaintiff that the sum of $98,975, mentioned in the complaint, was in fact a portion of the net proceeds of the Goldsmith mining claim. The question whether Tong and the Tong estate were engaged in mining is altogether immaterial. Section 2563, Revised Codes, supra, simply designates the person, corporation, or association who shall make the statement for the information of the assessor. The statute provides that such person shall be “engaged in mining.” But the net proceeds of the mine are nevertheless assessable and taxable against the owner thereof, as personal property, whether the statement is made or not. All property must be assessed to the owner. (Butte Land & Inv. Co. v. Sheehan. 44 Mont. 371, 120 Pac. 241.) Section 2568, Revised Codes, provides that if a person, corporation, or association engaged in mining refuses or neglects to make the statement required by section 2563, Revised Codes, the assessor must assess according to his own knowledge and information, in the manner provided by law for the assessment of other property where no statement is furnished. While the plaintiff designates the royalties received as “rental only,” it is quite clear from the pleadings that these so-called “royalties” or “rentals” were in fact a portion (twenty- five per cent) of the net proceeds of the mine for the year ending May 31, 1904. It is altogether probable that Ellingwood furnished a statement to the assessor, showing that the plaintiff had received twenty-five per cent of the net proceeds of the mine— $31,282.76 directly, as executrix, and $67,692.24 through the medium of the State Savings Bank — and that this statement was the basis of his assessment against the estate. But, assuming that Ellingwood made no statement, and plaintiff in effect admits that she made none, then the duty devolved upon the assessor to make an estimate of the value of the net proceeds of the mine according to his own knowledge and information and to assess the same to the owner or owners thereof. Any portion of the tax growing out of such assessment which was not paid became a lien upon the Goldsmith mining claim.
.The judgment is affirmed.
’Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
|
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] |
MR. CHIEF JUSTICE BRANTLY
delivered .the opinion of tbe court.
Plaintiffs are copartners, doing business as real estate brokers at Lewistown, Montana. In this action, they seek to recover the sum of $5,000, alleged to be due them for their services to defendant in procuring a purchaser of 450 shares of the capital stock of the Lewistown Brewing Company and of certain real estate situated near Lewistown, in Fergus county, all the property of the defendant. The trial resulted in a judgment for the plaintiffs. The defendant has appealed from the judgment and an order denying him a new trial.
There is serious question whether the issue made by plaintiffs’ reply to defendant’s answer does not present substantial departure from the cause of action alleged in the complaint; but, under the view we have taken of the merits of the ease as disclosed by the evidence, we deem it unnecessary to give special notice to this feature of the case. In our opinion, the evidence is insufficient to show a liability on the part of the defendant.
It appears that on November 4, 1910, the defendant gave to the plaintiffs, in writing, an exclusive agency to sell the stock, which constituted a controlling interest in the brewing company, for a period of thirty days, with a right of extension for thirty days’ additional time in case a sale had not been effected, but with the proviso that after the expiration of the first period of thirty days the defendant was to be free to sell to any purchaser found by himself. The minimum price fixed by the agreement was $60,000. Of this plaintiffs were to receive a commission of $5,000. If a sale should be effected at a price in excess of $60,000, the plaintiffs were to receive one-half of the excess, in addition to the commission of $5,000. A sale was not effected during the life of the agreement, though negotiations had been had by plaintiffs with different parties, particularly with one Borgeson, who resides in Butte, and who had visited Lewistown to examine the brewery property in December, 1910, with a view of effecting a purchase of the stock through the agency of plaintiffs. These negotiations failed, because Bor- geson insisted upon making payment of a part of the purchase price by a transfer to the defendant of property in Butte, which defendant was unwilling to accept.
On or about April 1, 1911, the plaintiffs, still hoping to effect a deal with Borgeson, solicited from defendant permission to renew their negotiations to that end. Defendant gave his.consent orally, but stipulated that the deal should include, also, seven or eight acres of land belonging to him, and situate adjacent to the brewery property. ■ Defendant fixed his price for the whole property at $70,000. There was no specific agreement as to the amount of commission the plaintiffs were to receive; but the parties understood it was to be $5,000. The defendant told the plaintiffs that he was then negotiating with other parties for a sale of the stock; and that if he could effect a sale in the meantime he would do so. On April 2 plaintiff Hanley induced the defendant to accompany him to Butte to examine the Borgeson property with the hope of gaining his consent to take it. Upon examination of it, defendant expressed himself to both Borgeson and Hanley as willing to take it at $35,000, the price fixed by Borgeson. Borgeson had not theretofore examined the land belonging to the defendant. He stated that he would accept the defendant’s property, both the stock and the land, if, upon examination, he found the brewery in the same condition it was when he had seen it in December, and if the land and the stock were worth the money demanded by defendant. At that time, Borgeson was recovering from an illness, and was unable to go at once to Lewistown with Hanley and defendant. He stated that he would go in a few days. Upon being told by defendant, in Hanley’s presence, that he was negotiating with other persons, and that he intended to let the stock go to the first person with whom he could close a deal, Borgeson told him that, if he could sell in the meantime, to do so. One Hodel, a stockholder in the brewing company, had theretofore offered to buy the defendant’s stock, but had not been able to procure the funds necessary. He was then making an effort to do so. On the evening of April 11, Hanley informed defendant by telephone that Borgeson would arrive in Lewistown that evening, and would be ready to make the deal. Borgeson did arrive as expected. About 8 o ’clock on the next morning, Hanley informed defendant of Bor-geson’s arrival, and stated that he was “ready to do business.” The statement was also made that Borgeson and Hanley would drive at once to the brewery, where defendant then was. Bor-geson, being still weak from his illness, was not ready to go at that time, but expected to go later in the day. About 9:30 o’clock, the defendant went to the office of plaintiffs and informed them that he had closed his deal with Hodel, and that the negotiations with Borgeson were to be considered at an end. He had in fact made a sale of the stock to H-odel about ten minutes after he had been informed of Borgeson’s presence in Lewistown.
It appears from the testimony of Borgeson that his purpose in going to Lewistown was to close the deal with defendant, provided, upon examination of the property, he found it to be as represented to him, and, in his opinion, was worth the money demanded for it. In this connection, he testified: “I had not noticed that ground when I was there in December. I was told that it belonged to Iiogl individually, and he kept that as a home and also rented houses. I felt on that day that I would have been willing to have taken the property under the terms named on the morning when I arrived in Lewistown. No, sir; I would not say I was ready, willing, and able to do it until I had seen it. That is true that that was really the cause of my whole trip from Butte over here. I didn’t know the real estate, or the condition the brewery was in, is why I didn’t close up the deal and buy it. Mr. Hogl told me over at Butte, in the presence of Hanley, that he could not hold it for me; that first come, first served; and Hanley was present when he told me that. I said he should not hold it, in case of losing any sale on account of me; and as soon as I would be able I would come over, and I came of my own accord.”
A broker is entitled to his commission when he shows (1) that he was employed to sell or exchange property, or to procure a purchaser therefor; and (2) that he found and introduced to his principal a person who was ready, able, and willing to purchase or exchange upon the terms proposed by the principal, or which were acceptable to him. (2 Clark & Skyles on the Law of Agency, sec. 771.) It is not necessary that a sale should be actually consummated, or that the broker has himself made a binding contract with the purchaser. It is sufficient if the principal is in a situation to execute it himself. (Id.) “The primary duty of the broker consists in bringing the minds of the vendor and vendee to an agreement. To entitle him to commissions, he must produce a purchaser ready and willing to enter into a contract on the employer’s terms. This implies and involves the agreement of buyer and seller, the meeting of their minds produced by the agency of the broker.” (Rapalje on Real Estate Brokerage, sec. 73.) In McGavock v. Woodlief, 20 How. 221, 15 L. Ed. 884, the court stated the rule thus: “The broker must complete the sale (that is, he must find a purchaser in a situation ready and willing to complete the purchase on the terms agreed on) before he is entitled to his commissions. Then he will be entitled to them, though the vendor refuse to go on and perfect the sale.” However the forms of expression adopted by different courts may vary in the terms employed, they are generally in agreement in their statement of the rule. It was said by Judge Finch, in Sibbald v. Bethlehem, Iron Co., 83 N. Y. 378, 38 Am. Rep. 441: “The duty he [the broker] undertakes, the obligation he assumes as a condition of his right to demand commissions, is to bring the buyer and seller to an agreement. In that all the authorities substantially concur, although expressing the idea with many differences of phrase and illustration.” The following cases are in point: Wylie v. Marine Nat. Bank, 61 N. Y. 415; Hardy v. Sheedy, 58 Or. 195, 113 Pac. 1133; Gunn v. Bank of California, 99 Cal. 349, 33 Pac. 1105; Mattingly v. Pennie, 105 Cal. 514, 45 Am. St. Rep. 87, 39 Pac. 200; Darrow v. Harlow, 21 Wis. 306, 94 Am. Dec. 541; Finnerty v. Fritz, 5 Colo. 174; Hurd & Wilkinson v. Neilson, 100 Iowa, 555, 69 N. W. 867; Coleman’s Exr. v. Meade, 13 Bush (Ky.), 358; Jones v. Stevens, 36 Neb. 849, 55 N. W. 251; Wilson v. Mason, 158 Ill. 304, 49 Am. St. Rep. 162, 42 N. E. 134; Veazie v. Parker, 72 Me. 443; Ward v. Gobi, 148 Mass. 518, 12 Am. St. Rep. 587, 20 N. E. 174. Some of these cases go so far as to hold that the negotiations must result in a binding contract between the purchaser and the seller. In our opinion, however, the broker is entitled to his commissions if he produces a purchaser ready to accept, and who does accept, the offer made by the seller according to its terms.
It is clear from the summary of the evidence given above that the plaintiffs did not bring themselves within this rule. It was understood by all the parties that no agreement was reached by the defendant and Borgeson at Butte. Borgeson reserved the right to examine the brewery property and the land before finally making up his mind. His trip to Lewistown was for the purpose of examination. He was not committed to anything until he had accomplished the purpose of his visit. The defendant had not given the plaintiffs the exclusive right to find a purchaser. He therefore had the right to sell, in any event, until a purchaser had been found by the plaintiffs who stood ready to accept the property without condition, and he was notified of that fact. (Darrow v. Harlow, supra; 2 Clark & Skyles on the Law of Agency, sec. 776.) To put this beyond doubt, he had informed both the plaintiffs and Borgeson that he was negotiating with other persons,, and intended to sell if he could. Notwithstanding his knowledge of Borgeson’s presence in Lewistown to examine the property, until the examination had been made and Borgeson had definitely accepted his offer, he was not de-vested of this reserved right to sell to Hodel, or anyone else, any part of the property at any price which he chose to accept. He was not under any obligation to wait until Borgeson could reach a conclusion as to what he should do. Therefore, the plaintiffs did not put defendant in such a position that he was required to complete a sale to Borgeson, however ready the latter might have been to accept defendant’s offer according to its terms, after he had accomplished the purpose of his visit. Borgeson still had the right to accept or reject the offer. Hence a meeting of the minds of the seller and purchaser was not produced by the agency of the plaintiffs.
(Submitted May 29, 1912.
Decided May 31, 1912.)
It is not of import that the plaintiffs expended time and money in their attempt to procure a purchaser, which the evidence shows to be a fact. Under the terms of their employment, their reward was dependent upon their success. Any expense of time or money made by them, however great it might have been, was at their own risk. (Sibbald v. Bethlehem Iron Co., supra; 2 Clark & Skyles on the Law of Agency, see. 776.)
The judgment and order are reversed. The cause is remanded to the district court, with directions to enter judgment for the defendant.
Reversed and remanded.
Mk. Justice Holloway concurs.
MR. Justice Smith did not hear the argument and takes no part in the foregoing decision.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
This suit was brought to have determined the relative rights of the parties to the use of the waters of Big Timber creek and its tributaries. The trial court found that 1,430 miner’s inches of the waters of the North fork of Big Timber creek had been appropriated through the Big Timber creek canal and this quantity it ordered distributed: 430 inches to Asbury et al., and 1,000 inches to the Glass-Lindsay Land Company. From the decree and an order denying a new trial, the Glass-Lindsay Land Company appealed.
In 1892, Lee, Hall, and Hatch filed notice of appropriation of 5,000 inches of water of Big Timber creek and commenced the construction of a distributing system. This work was continued in 1893. In 1894 Hatch succeeded to the interests of Hall and Lee, and continued the work to such an extent that small quantities of water were used during 1894 through the main canal. The appropriation made by Lee, Hall, and Hatch was for the purpose of irrigating lands upon which they had some claim, as well as to sell, rent, and otherwise distribute water to other persons. In June, 1895, A. Wormser succeeded to the rights of Hatch. About this time the Holland Irrigation Canal Company was organized under the laws of the state to purchase or construct a canal system upon the North fork of Big Timber creek to irrigate lands lying in the vicinity, and to sell, rent, or otherwise dispose of water for irrigation and other lawful purposes. Immediately thereafter this canal company succeeded to the rights of Wormser, except as to a particular right which need not be considered at this time. During 1895 and 1896 the canal company prosecuted the work of extending the main ditch or canal, until it was completed substantially and was from eight to ten miles long. By mesne conveyance the Glass-Lindsay Land Company, a corporation, became the owner of whatever rights had been acquired by the Holland Irrigation Canal Company, and in the' latter part of May, 1910, did considerable work on one section of the canal. The Glass-Lindsay Land Company was also organized under the laws of this state, with authority to purchase or construct an irrigation system and to sell, rent, or otherwise dispose of water for the irrigation of lands lying immediately tributary to this main canal. At the time of the trial of this case, in December, 1910, something more than 1,000 acres of land had been subjected to irrigation from this canal, and there are substantially 3,450 acres more arid land which can be irrigated from it. In 1908 the Glass-Lindsay Land Company furnished "to its customers 835 inches of water; in 1909 it furnished 926 inches; and in 1910, 1,150 inches. By reason of having succeeded to the particular right reserved by Wormser, Asbury et al. are entitled to 430 inches of water, and entitled to have it conveyed through this canal for a distance of about two miles, to the head of the Big Timber canal lateral, which thence conveys the water to lands owned by Asbury et al.
The trial court did not make any specific findings of fact. There is one general finding in which the court made a tabulation of the appropriators, the date and amount of each person’s appropriation, and made its decree to conform thereto. In doing so it awarded to the Glass-Lindsay Company 1,000 inches, of date December 20, 1892.
The argument of appellant company is that the finding of the court and the decree so limiting its rights are not supported by the evidence. Respondents contend, among other things, that the work done by the appellant company in 1910 amounted to an enlargement of the canal, as distinguished from repairs or cleaning it out. A. Zuill, a witness for appellant, was in charge of the work done in 1910. He testified that he had fifteen to seventeen teams and from twenty-five to thirty men at work; that they “cleaned out” a section of the canal 3,300 feet in length; that before this work was done the canal had a carrying capacity of from 1,200 to 1,'500 inches, and after the work was done its capacity was 2,200 inches; that while nominally 1,150 inches of water only were supplied to customers of appellant during the season of 1910, in fact each customer received 150 per cent of the amount to which he was entitled, or 1,725 inches of water were actually supplied through the canal; and that it would have carried 500 inches more. John D. McLeod, an engineer, measured the canal in September, 1910. He found the capacity, from the head of the canal to the point where the Big Timber canal lateral leaves it, to be 2,200 inches. George Car-doza testified that he measured the canal on May 19, 1910, and found its capacity to be 1,240 inches. Fred Quinnell testified that he assisted Cardoza, and he likewise found the capacity of the canal to be 1,240 inches. He testified that after he and Cardoza made their measurement, Zuill and his men enlarged the canal by the work which they did in 1910. Bert Plagge-meyer testified that a certain flume near the head of the canal would not carry over 1,500 inches, and by reason of this the capacity of the canal, which otherwise would have exceeded that amount, was limited to 1,500 inches; but he further testified that the flume was out of repair, that it leaked and had a sag in it, and that it had been in that condition for two years. There is not any evidence in the record as to the capacity of this flume when completed or when in a state of repair to perform the service it was intended to perform.
Apparently there is not any controversy over the carrying capacity of the canal below the point where the Big Timber canal lateral leaves it, and it is apparent from the record that all of the witnesses were referring to its capacity from the head to this particular point, except the witness McLeod, who also gave testimony as to the capacity at seven different places, four of which are below the head of the lateral. Respondents insist that there is a sharp conflict in the evidence, as to 'the capacity of the canal, and therefore appellant must assume the burden of showing that the evidence preponderates against the trial court’s finding, assuming that the trial court impliedly found that the capacity of the canal was only 1,000 inches, or 1,430 inches including the Asbury et al. rights. The rule invoked is well recognized and is controlling if the record justifies its application ; but so far as the evidence produced by the witnesses Zuill, Cardoza, and Quinnell, as to the capacity of the canal prior to the time the work was done in 1910 is concerned, there is not any conflict whatever. On the contrary, there is substantial agreement that at that particular time the capacity was 1,240 inches. If there is any conflict as to the carrying capacity of the canal after that work was done, it arises as between the testimony of Zuill and McLeod, on the one hand, that the capacity of the canal after that work was done was 2,200 inches, and the testimony of Plaggemeyer and one Kleinhesselink, on the other. So far as Plaggemeyer’s testimony is concerned, it is not of any considerable consequence.
An appropriator’s right is not to be limited by the capacity of his canal while out of repair, unless that condition has existed for such length of time as to indicate an intention on the part of the appropriator to claim no more water than the canal in that condition will carry. The witness Kleinhesselink testified that he measured the canal and found its capacity to be 1,200 inches. Asked when he made the measurement, his reply was, “Last November.” He was testifying some time near the middle of December, 1910. If by the use of the words “last November” he referred to November, 1910, then there is a direct conflict in the evidence. But counsel for appellant argue that it is quite apparent that the witness referred to November, 1909. If there was not anything else in the record to reflect upon the witness’ meaning other than the terms which be employed, we would feel forced to adopt the terms literally, and say that “last November,” from the standpoint of December, 1910, means November, 1910.
But if such construction of the language leads to an absurdity, then it ought not to be adopted. If the witness referred to November, 1910, then the trial court refused to believe him, for it will not be presumed that the court awarded, water rights 'aggregating 1,430 inches through a canal that will carry but 1,200 inches. If the witness referred to November, 1910, he made his measurement after the work was done in May of that year, and the canal thus had a less carrying capacity after the work was done than it had before. Finally, if the witness referred to November, 1909, then his testimony is in substantial agreement with that of the other witnesses, Cardoza, Quinn ell, and Zuill, who measured it before the work of 1910 was done. These considerations seem conclusive that the witness must have referred to November, 1909, and, if so, then there is not any substantial conflict in the evidence, and it is apparent that the trial court must have found that the canal had a capacity of 1,240 inches before the work of 1910 was done, and a capacity of 2,200 inches after that date, if the flume mentioned above when in repair had that capacity. A different finding would not have any evidence whatever to support it. The trial court must have found that appellant’s predecessors complied with the law in posting notice at the point of diversion, in filing the notice with the county clerk and recorder, and in doing the excavation work to completion with reasonable diligence as required by statute, for it applied the rule of relation and fixed its appropriation as of the date when the notice was posted at the point of diversion, a conclusion which could not have been reached upon any other theory. The court must have found, also, that the main canal had the same carrying capacity at the time it was completed in 1895 or 1896, as it had at the time of the trial, for this would be in accordance with the evidence, which is not disputed. Again, the court must have found that the work done on the canal in 1910 was not an enlargement but amounted only to repairs or clearing out accumulated débris; otherwise the court would be in the absurd position of awarding to this canal considerably more water than it had capacity to carry. As said above, the court must have found that, when completed, the canal had a carrying capacity of 2,200 inches, or such less amount as the flume mentioned would carry at that time, if in a state to perform its full service. The right of an appropriator to make repairs, so that his canal will perform the full service which it was intended to perform, is recognized generally, and is not controverted upon this appeal. It thus becomes apparent that the size of the canal, its carrying capacity, or appellant’s needs was not a determining factor with the lower court in fixing the limit of appellant’s appropriation.
From the evidence in the record it appears that about Decemr be'r 20, 1892, the predecessors of this appellant posted the required notice, claiming 5,000 inches of water; that they complied with the statute in filing the notice in commencing, prosecuting, and completing the work on the ditch; that the ditch when completed had a capacity of 2,200 inches, if the flume mentioned would carry that amount; and under section 4848, Revised Codes, the excess claimed over that amount was relinquished, and the claim itself limited to 2,200 inches, or to the capacity of the flume if less than that amount. It further appears that at the time the claim was initiated there were arid lands susceptible of irrigation from this ditch, in extent sufficient to require the entire 2,200 inches and more. It further appears that the original claimants and their successors initiated the right and prosecuted it for the purpose of supplying water to irrigate these available lands. Apparently some of these lands, at least, were public lands, and as settlers have come upon them and have made demands for the water the same has been supplied. The quantity required at the time the ditch was completed was comparatively small. But the demands have increased as the lands were settled upon or cultivated, until, during 1910, 1,150 inches were required and furnished. The question, then, arises: "When, if at all, did appellant make an appropriation and what was the extent of such appropriation, if made ? The trial court applied the rule of relation back, and fixed the date of appellant’s appropriation as of the date -of posting the notice. There is not any fault found with this portion of the decree, and could not be. So that, the court having found that appellant and its predecessors made a valid appropriation of date December 20, 1892, the only question remaining for solution is: What was the extent of that appropriation? And the answer to this involves a consideration of much, if not all, of the law of water appropriation.
It is quite well known that the law itself had its origin in the customs of miners and others in California. These customs had ripened into well-recognized rules some considerable time before there was organized local government in that country and before there was any legislation upon the subject whatever, and these customs were subsequently recognized as having the force of law, by state and national legislation and by the decisions of courts. (Woolman v. Garringer, 1 Mont. 535; Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240; Broder v. Water Co., 101 U. S. 274, 25 L. Ed. 790.) These customs formed a part of our unwritten law, or, as it might more aptly be termed, the common law of this country as distinguished from the common law of England. (King v. Edwards, 1 Mont. 235; Jennison v. Kirk, above; Carter’s The Law, Its Origin, Growth and Function.)
In 1870 our legislature passed an Act (Laws 1869-70, p. 57) which apparently undertook to limit the right fo appropriate wafer for irrigation purposes to persons or corporations having title to, or possession of, agricultural lands. (Tucker v. Jones, 8 Mont. 225, 19 Pac. 571.) The Act recognized the rights acquired or to be acquired under the rules and customs of the early settlers; but there was not any attempt made to prescribe any other method by which such rights might be secured. By an Act of February, 1877, the right of a person or association of persons or a corporation to appropriate water to¡ sell, rent, or otherwise dispose to others was authorized. In 1885, however, there was a distinct departure made by the legislature in enacting a statute under the title, “An Act relating to Water Rights.” These several Acts were carried forward in the compilation of 1887,. as Chapter 74, Fifth Division, Compiled Statutes, and with some modifications into the Civil Code of 1895, as Title VIII, Division II, Part IV; and again, with slight amendments and additions, into the Revised Codes of 1907, as sections 4840-4891, and now constitute the law of appropriation of water so far as controlled by legislation. As respects the method to be pursued by the intending appropriator proceeding under the statute, there has not been any substantial change made since the original Act of 1885 went into effect. \We are of the opinion that there are, then, two distinct periods in the history of our water right law. -The first comprises the time from the earliest settlement to 1885, during which period the rights were determined exclusively by the rules and customs of settlers; and the second extends from 1885 to the present time. As the rights of this appellant arose since 1885, we are not concerned with the rules of law applicable to the first period, except so far as they may reflect upon the legislation in force during the second period.
Our Act of 1885 is in all substantial particulars a copy of the California Act of March 21, 1872. The California Act was called in question in De Necochea v. Curtis, 80 Cal. 397, 20 Pac. 563, 22 Pac. 198, in a contest between De Necochea, who claimed an appropriation of water, and Curtis, who claimed as riparian owner. De, Necochea had diverted the water from a stream and actually applied it to beneficial uses after the statute of 1872 went into effect, but he did not comply with the statute by posting notice, etc., or make any attempt to do so. He had however, actually used the water before Curtis settled upon the riparian land. The only question before the court was whether a valid appropriation could be made after 1872 without complying with the statute. The conclusion of the court was that such an appropriation could be made, that the mode pre scribed by tbe statute was not exclusive, but tbat tbe right acquired by compliance with the rules and customs of the early settlers was fully recognized by the statute. (Cal. Civ. Code, see. 1419 [sec. 4849, Mont. Bev. Codes].) After quoting section 1418 of the California Civil Code, the court said: “In this provision we begin to see the purpose and object of the legislature, which, in our opinion, was merely to define with precision the conditions upon which the appropriator of water could have the advantage of the familiar doctrine of relation.” In a case involving similar facts and the same question, the court approved that decision and quoted the language above, in Burrows v. Burrows, 82 Cal. 564, 23 Pac. 146. A similar question arose thereafter between one claimant who had diverted and actually used the water but had not complied with the statute, and another claimant who subsequently made an appropriation by complying with the statute. The same conclusion was reached and again the language above was quoted, and in addition the court said: “The scope and purpose of all the provisions of the chapter upon water rights was to establish a procedure for the claimants of the right to the use of water, whereby' a certain definite time might be established as the date at which their title should accrue.” (Wells v. Mantes, 99 Cal. 583, 34 Pac. 324.) In Kerr’s Encyclopedic Code of California, under section 1418, Civil Code, above, the annotator says: “Purpose and object of the legislature in requiring compliance with sections 1415 and 1416 is clearly to define with precision conditions upon which appropriator of water could have all advantages of familiar doctrine of relation” — and in support of his statement cites the three preceding cases.
In Murray v. Tingley, 20 Mont. 260, 50 Pac. 723) this court had before it the single question: Can a person malic'a valid appropriation of water after the statute of 1885 went into efi?eet, without complying with the statute? After citing De Necochea v. Curtis and Wells v. Mantes, and quoting the language from\ the former opinion which we reproduce above, this court said: “We think the construction of the statute by the supreme court of California is logical and correct, and are of tbe opinion that the Montana Act [of 1885] should be construed in the same manner.” That the conclusion reached by the California court in each of those cases, as well as the conclusion of this court in Murray v. Tingley, is correct, does not admit of argument. Section 1419, California Civil Code (Mont. Rev. Codes, see. 4849), clearly recognizes a right which one may acquire to the use of water without complying with the statute, and that such right shall be good as against everyone except an appropriator who complies with the statute before the first claimant has actually completed his work and applied the water to a beneficial use. In the course of the opinion in Murray v. Tingley, Mr. Justice Buck, speaking for the court, said: “In enacting this law the legislature did not contemplate that one who failed to comply with the terms of the statute, but who, in the absence of any conflicting adverse right, had nevertheless actually diverted water and put it to a beneficial use, should acquire no title thereby. The essence of an appropriation — a completed ditch, actually diverting water, and putting it to a beneficial use — remained the same as it had been before.” Keeping in mind the single question before the court, the language above: “The essence of an appropriation — a completed ditch, actually diverting water, and putting it to a beneficial use — remained the same as it had been before,” must have been intended to apply to one who after 1885 seeks to make an appropriation without complying with the statute, and thus construed we agree with the statement entirely. The learned justice further said: “The object of the statute was to preserve evidence of rights, and also to regulate the doctrine of relation back.” As applied to the facts of that ease, this statement is also correct. We think that the California court was not attempting to state the only purposes of these water right statutes in the quotations above from De Necochea v. Curtis and Wells v. Mantes, or that Mr. Justice Buck meant that the only purpose of our legislation was and is to preserve evidence of rights and regulate the doctrine of relation. Those statements must be read in the light of tbs fact® of the particular cases and the question for decision; and, thus read, they are correct even though they may be, in a sense, dicta, as it would seem to have been entirely unnecessary for either court to make any pronouncement upon the subject in order to reach a conclusion in harmony with the spirit and purpose of the law. A much more apt statement is that made by the annotator quoted above.
But we are of the opinion that by enacting the statute of 1885, and in carrying it forward into the several compilations since, our legislature had in mind a purpose in addition to those stated by the California court and by Mr. Justice Buck in Murray v. Tingley, above. That purpose was to prescribe the steps necessary to be taken to effect a complete appropriation of water. This is manifest from the statute itself. It specifies certain acts which must be done, and then concludes by saying: If you perform these acts, your right relates back to the date of posting notice. What right? The right to the use of water. (Sec. 4849.) But a valid subsisting right implies a completed appropriation, and necessarily so. It would be absurd and contrary to the very terms of the statute to say that before you have a completed appropriation you have secured a right to the use of water which relates back to some preceding date. The right of an appropriator to use water depends upon his appropriation of it. In Maeris v. Bicknell, 7 Cal. 262, 68 Am. Dec. 257, the court said: “Until such actual appropriation there can exist no complete right to the use of water, for the party may never carry out his intention.” And though Mr. Long insists that actual use is a necessary prerequisite to a completed appropriation, he nevertheless announces the following as the doctrine of relation: “The rights of an appropriator of water do not become absolute until the appropriation is completed by the actual application of the water to the use designed; but where he has pursued the work of appropriation with due diligence, and brought it to completion within a reasonable time, as against other appropriators, his right will relate back to the time of the commencement of the work.” (Sec. 51.) But our statutes declare that the right accrues upon the completion of the ditch, canal, or other means of diversion, and it must be upon the theory that the appropriation is then complete, and this is the view entertained by Pomeroy. (Black’s Pomeroy on Water Bights, secs. 54, 55.)
The doctrine of relation was recognized before the statutes were enacted; but the point of time to which the right then related was the time when work was commenced upon the ditch, canal, or other means of diversion. (Woolman v. Garringer, 1 Mont. 535.) We doubt whether a party could ever invoke the doctrine of relation until his appropriation was completed; and we are led irresistibly to the conclusion that, before the statute makes applicable the doctrine, a completed appropriation must have been effected.
After referring to the conflicting views expressed by the courts, and as if to emphasize the views we have announced, as well as to point out the difficulties which the contrary theory will necessarily create, Mr. Wiel says: “In appropriations for future use (which are generally upheld if bona fide), also, this divergence of views will probably cause difficulty. The original theory, considering the appropriation complete on completion of the construction work and diversion (the taking of possession of the water), necessitates the enforcement of the doctrine of relation from that time; whereas, when the acquisition of the right is delayed until aeLual application, it will keep open and uncertain for years (under frequent decisions) the doubt whether an appropriation exists, as some states allow years to pass (if a reasonable time) before the application need be made; and after those years of uncertainty, will cut off the intervening rights of other claimants.” (1 Wiel on Water Bights in the Western States, sec. 396.)
We are of the opinion that the Act of 1885 intended: (1) To preserve the right which the appropriator had theretofore; and (2) to provide an additional method of making an appropriation. In other words, during the first period of our history above, there was but one method of making an appropriation, and that was by complying with the rules and customs of the pioneer settlers; while during the period since 1885, two distinct methods are prescribed, — the first by complying with the rules and customs of the early settlers, and the second by complying with the terms of the statute. ¥e imagine that the members of the bench and bar of this state would be very much surprised if told at this late day that an appropriation of water cannot be made by pursuing the method prescribed by statute.
Speaking of an appropriation after the statute of 1872 was enacted in California, Wiel, volume 1, section 364, says: “An appropriation may be made by a complete, actual diversion for a beneficial purpose, without following the statute, or else by proceeding under the statute. * * * These two are the only methods. Unless there is a right by actual diversion as below set forth, or by compliance with the statute, it cannot be spoken of as an appropriation.”
In Senior v. Anderson, 115 Cal. 496, 47 Pac. 454, the court says: “In the absence of the statutory notice, an appropriation can only be made by its actual diversion and use.”
In Lower Tule R. Ditch Co. v. Angiola Water Co., 149 Cal. 496, 86 Pac. 1081, the court, speaking through Mr. Justice Shaw, said: “In order to make a valid appropriation it was not necessary for Dunean to post and record a notice of appropriation as provided in the Civil Code (secs. 1415-1421). The method of acquiring a right to the use of water as there prescribed is not exclusive. One'may by a prior actual and completed appropriation and use, without proceeding under the Code, acquire a right to the water beneficially used, which will be superior and paramount to the title of one making a subsequent appropriation from the same stream in the manner provided by that statute.”
In each of these decisions there is a very clear recognition of two distinct methods of appropriating water since the enactment of the statute upon the subject, as we have outlined above. We are satisfied that the statutory method of making an appropriation is entirely distinct from the method which may be pursued under the rules and customs of the early settlers; and, furthermore, that the statute provides for all the steps necessary to be taken by one who follows them, to secure a completed appropriation. Those steps are: (1) Posting notice. (2) Filing notice with the county clerk and recorder. (Sec. 4847.) (3) Commencing work within forty days after posting notice. (4) Prosecuting such work with reasonable diligence. And (5) actual completion of the work. (Sec. 4848.) These are all the requirements of the Code, and by what authority shall any additional exaction be made? “The Code establishes the law of this state respecting the subjects to which it relates.” (Sec. 6214.) Our conclusion is in entire harmony with the theory of appropriation as shown by the history of its origin, growth, and purpose; and if our conclusion is not correet, then there is not any such thing as an appropriation of water, under or by virtue of the statute. Either the statute provides a complete mode of acquiring the right to use water by appropriation, or it does not prescribe any at all.
In support of our view, we quote, from 1 Wiel on Water Eights in the Western States, the following: “Historically, an appropriation was simply the taking possession of the stream, so that diversion was the last step in such possession and the last step in completing the appropriation.” (See. 395.) “The rules developed in the early days upon the public lands in California still prevail in California substantially as laid down in the early decisions of the court. The proposition around which these rules center is, it should be repeated, that the requisites are those furnishing an equivalent to taking possession of the flow of the water; the right having arisen as a possessory right on the public domain.” (Sec. 362.) “The law of appropriation arose as a branch of the law of possessory rights upon the public domain. It hence took on the attributes of a posses-sory system. The method of making an appropriation was deduced from the requisite, of obtaining possession of the stream. Actual use was not a prerequisite to the creation of the right and to invoking the doctrine of relation; actual diversion was enough, if with bona fide intent. * * * Actual use was rep resented only by a Iona fide intention; it did not bave to be immediately accomplished to create a right; but the flow could-be held for future needs; nonuse was immaterial unless it was •accompanied with an actual intent to permanently abandon the possession.” (Sec. 139.)
In proceeding under the rules and customs of the early settlers, whether before or since the enactment of the statute, the intending appropriator must take actual possession of the water; but from one who proceeds under the statute, actual use of the water cannot be exacted as a prerequisite to a completed appropriation. The statute does not require it, but, on the contrary, makes provision, compliance with which is the equivalent of actual possession. We quote again from 1 Wiel, section 362, as follows: “Having found water that can be appropriated and a proper place to appropriate it, the right to the water is not complete until the water is actually taken into one’s possession, or rather, until all work preparatory to the actual use of the water is completed, since that is the equivalent of taking possession ; it is the nearest to possession that the nature of the right makes possible.” Upon the theory thus advanced, the claimant who proceeds under the statute, and performs the acts required as set forth above, 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. The correctness of this view, we think, is emphasized by consideration of the opposing doctrine. In Colorado it is held that actual application of the water to a beneficial use is a necessary prerequisite of a completed appropriation; and this doctrine is followed in some of the other states. Our Act of 1877, above, specifically recognized the right of an individual to appropriate water to rent or sell to another; but if the Colorado doctrine be invoked here, such individual could never make his appropriation, for, under the Colorado theory, the user and not the first individual would be the appropriator, and this is the only consistent position to assume, if actual use is a necessary step to a completion of the appropriation. But such a position is inconsistent with our Act of 1877, which was carried forward in the compilation of 1887 as section 1263, into the Codes of 1907, as section 4860. In Oregon it would seem that tinder the rule there recognized, as applied to the supposed ease above, the original claimant is dependent upon the volition of his customer, a third person, and one a stranger to his enterprise, to complete his appropriation by the application of the water to actual use.
While the Act of 1870, above, 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. (Toohey v. Campbell, 24 Mont. 13, 60 Pac. 396; Smith v. Denniff, 24 Mont. 20, 81 Am. St. Rep. 408, 50 L. R. A. 74, 60 Pac. 398.) Again, Article III, section 15, of the Constitution of Montana provides: ‘ ‘ The 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.” Section 3808, Revised Codes, authorizes the formation of a corporation to supply water to the public; while section 3819 gives further recognition to the same right. Section 4841 declares that the appropriation must be for some useful or beneficial purpose;!but the use to which the water is to be applied need not be immediate, but may be prospective or contemplated. , (Toohey v. Campbell, above; Miles v. Butte Electric & Power Co., 32 Mont. 56, 79 Pac. 549; Smith v. Duff, 39 Mont. 382, 133 Am. St. Rep. 587, 102 Pac. 984.)
Assume that a corporation which does not own, control, or possess any land is organized for the purpose of selling or renting water to settlers to irrigate arid lands; that it proceeds under the statute to make its appropriation and fully complies with all the statutory requirements, completes its distributing system, and is ready and offers to supply water to settlers upon demand. Now, if the corporation can ever make an appropriation, it has done so, for it bas performed every act which it can perform. It cannot use the water itself, for it has no land or other means of nse. Any further acts must be performed by its customers who are to be the users. Under such circumstances, the Colorado court, insisting upon actual use as a necessary prerequisite to a valid appropriation, holds that the corporation is not an appropriator at all, but that its customers become the appropriators of the several quantities of water which they use (1 Wiel, sec. 396; 2 Wiel, sec. 1338); and this seems the only logical conclusion if actual use is necessary to complete the appropriation. But such a result is a denial of the right of the corporation to make an appropriation, a result which cannot be reached in this state, where our Constitution and laws specifically recognize the right of a corporation to make an appropriation, unaided by the acts of third parties. There may be lands available for irrigation at the time the corporation’s system is completed; but the corporation cannot compel people to utilize their lands, and, if they do, it cannot compel them to use its water. If the appropriation is not completed until the water is actually used, it is apparent at once that the corporation’s right, if any it has, is so intangible and uncertain as to be of no value, whatever amount of money may have been expended on the work. If the land sought to be reclaimed should be government land, the corporation would be confronted with the additional difficulty that it cannot compel people to settle upon such lands, and its appropriation would depend upon the tide of immigration and the wishes of the settlers when they do come in, if use is necessary to complete the appropriation.
In the note to Nevada Ditch Co. v. Bennett (30 Or. 59, 45 Pac. 472), as reported in 60 Am. St. Rep. 777, the author reviews the history of our water right law as disclosed in the decided cases, and upon the particular question now under consideration says: “The appropriation of water for sale to others is authorized by the statutes of the states in which it is valuable for that purpose, and in many instances the chief, and even the sole, object of an appropriator is not that of any use by him in and upon bis own lands or minos, but the sale of the water to others who have mines to be worked or lands to be irrigated. 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, though the persons to whom it is thus offered refuse to receive or use it. They certainly cannot thus defeat the rights of the diverter.”
To deny the right of a public service corporation to make an appropriation independently of its present or future customers, and to have a definite time fixed at which its right attaches, would be to discourage the formation of such corporations and greatly retard the reclamation of arid lands in localities where the magnitude of the undertaking is too great for individual enterprise, if, indeed, it would not defeat the object and purpose of the United States in its great reclamation projects, for the United States must proceed in making appropriations of water (from the non-navigable streams of this state at least) as a corporation or individual. (Rev. Codes, sec. 4846; United States v. Burley (C. C.), 172 Fed. 615; Burley v. United States, 179 Fed. 1, 102 C. C. A. 429.)
It is clearly the public policy of this state to encourage these public service corporations in their irrigation enterprises, and the courts should be reluctant to reach a conclusion which would militate against that policy.
It is impossible to harmonize the decisions of the courts upon the subjects presented. Respectable authority can be found holding contrary to our view; but upon a consideration of our statutes, the history of the law of appropriation, and the public policy of this state, we base our conclusion 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. The right thus obtained may be lost by abandonment or nonuser for an unreasonable time (1 Wiel, sec. 569), but cannot be made to depend for its existence in the first instance upon the voluntary acts of third parties — strangers to its undertaking. The appellant here is a public service corporation (State ex rel. Milsted v. Butte City W. Co., 18 Mont. 199, 56 Am. St. Rep. 575, 32 L. R. A. 697, 44 Pac. 966; Gutierres v. Albuquerque L. & I. Co., 188 U. S. 545, 47 L. Ed. 588, 23 Sup. Ct. Rep. 338; 2 Wiel, sec. 1260), as were its immediate predecessors, while the original appropriates of the right claimed by appellant were private individuals.
If our statute does not by express terms, it does by fair implication, require that, at the time of taking the initial steps, the claimant must have an intention to apply the water to a useful or beneficial purpose. (Power v. Switzer, 21 Mont. 523, 55 Pac. 32; Toohey v. Campbell, above; Miles v. Butte Electric & Power Co., above; Smith v. Duff, above.) The law will not encourage anyone to play the part of the dog in the manger, and therefore the intention must be bona fide and not a mere afterthought. (Nevada County & S. C. Co. v. Kidd, 37 Cal. 282.)
The appropriated need and facilities, if equal, measure the extent of his appropriation. (Sayre v. Johnson, 33 Mont. 15, 81 Pac. 389.) If his needs exceed the capacity of his means of diversion, then the capacity of ditch, etc., measures the extent of his right. (McDonald v. Lannen, 19 Mont. 78, 47 Pac. 648.) If the capacity of his ditch exceeds his needs, then his needs measure the limit of his appropriation. (Toohey v. Campbell, above.)
We find, then, from this record that, at the time of the initiation of appellant’s right in 1892, there was a useful and beneficial purpose to which the water to be appropriated could be applied; that Lee, Hall,'and Hatch were qualified to make an appropriation; that they had the bona fide intention at the time to apply the water, which they sought to appropriate, to a useful and beneficial purpose; that they posted the required notice at the point of diversion, filed the notice with the county clerk and recorder within the time required by law, commenced the work of constructing- the canal by which the water was to be diverted, within the period limited by the statute; that they and their successor, the Holland Irrigation & Canal Company, prosecuted the work with reasonable diligence and completed it by 1895 or 1896, which, considering the magnitude of the undertaking, was within a reasonable time; that the notice posted and the one filed for record claimed more than 2,200 inches; that the canal, when completed, had a carrying capacity of 2,200 inches, or such less amount as the flume mentioned herein would carry if that amount was less than 2,200 inches; that the lands available for irrigation under the canal would require the amount claimed; and that, upon completion, the canal company was in a position to offer, and did offer, the water to actual and prospective users — and these questions are not to be retried. Upon the other questions involved the evidence is too indefinite to enable us to make final disposition of the cause.
Upon the facts stated, our conclusion is that the appropriation was actually completed upon the completion of the canal; that the right related back to the date when the notice was posted; that a valid appropriation of 2,200 inches, or such less amount as the flume would carry, was made; and that this appellant is entitled to a decree for that amount, unless the whole or a portion of the original appropriation has been lost by abandonment or nonuser for an unreasonable length of time.
It appears that the cause was determined upon an erroneous theory, and, in justice to all parties concerned, the judgment and order refusing a new trial should be reversed, and the cause remanded for a new trial as to appellant’s right as indicated above, and it is accordingly so ordered.
Reversed and remanded.
Mr. Chief Justice Brantly and Mr. Justice Smith concur.
|
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PER CURIAM.
Pursuant to stipulation of counsel, the appeal herein is dismissed, the cause having been settled.
|
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] |
MR. JUSTICE STARK
delivered the opinion of the court.
The undisputed evidence in this case shows that on May 11, 1925, at the Gem rooming-house in Billings, officers, without having- a warrant therefor, placed the defendant under arrest. As they did so, a bindle, or package, of opium containing about ten grains, fell on the floor at defendant’s feet. This bindle either accidentally fell from the defendant’s pocket or he voluntarily threw it away. How it got to the floor from defendant’s person is immaterial on this appeal. It was immediately picked up by the officers, who declared in defendant’s presence: “Here it is; here’s the stuff.” The defendant, having been asked where he obtained the package, said he got it “from a Chinaman,” and that “he was going to smoke it.”
Two days later, on May 13, the county attorney filed an information in the district court charging that the defendant, on or about May 11, 1925, unlawfully, etc., had “in his possession and under his control certain narcotic drugs, to-wit, approximately ten grains of opium. * * * ”
Defendant was placed on trial' on May 25, 1925. After making necessary preliminary proof, the state offered in evidence as its Exhibit “A” the bindle of opium which had been picked up at defendant’s feet as above recited. To this offer counsel for defendant objected on the ground that Exhibit “A” had been unlawfully and illegally obtained, “for the reason that the defendant was not lawfully under arrest before this package was found on the floor or before he dropped it, if he did drop it.” This objection was sustained by the court, whereupon the state, having no further evidence of the possession of narcotics by defendant, rested its case. Upon motion of counsel for defendant, the court directed the jury to return a verdict of not guilty, which was accordingly done. The state has appealed from this order .and assigns as error' the ruling of the court in sustaining the objection to Exhibit “A” and the order directing the jury to return a verdict of not guilty.
The assignments of error are well taken. It is not necessary to decide whether in fact the bindle of opium was unlawfully or illegally obtained. The defendant claimed that it was, and for a period of nearly two weeks must have known that it would be offered in evidence against him at his trial on a felony charge. Knowing this fact, as well as the circumstances under which it had been obtained by the officers, he made no move to secure its suppression as evidence. It is idle for counsel to argue that his first opportunity to object to its use was when it was offered as evidence at the trial. The whole record contradicts such contention. If the defendant did not wish to have this bindle of opium used as evidence against him, it was his duty to have taken proper and timely steps to have its use as such suppressed in the manner allowed by law. Having failed to do this his objection at the trial came too late to avail him. This rule has been announced by this court many times during the past few years. (See State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362; State v. Gotta, 71 Mont. 288, 229 Pac. 405; State v. Rice, 73 Mont. 272, 235 Pac. 716.)
The order appealed from is reversed and the cause remanded to the district court of Yellowstone county for a new trial.
Beversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.
|
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] |
MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
Prohibition. An accusation was filed in the district court of Musselshell county by A. G. MeNaught, as county attorney, against T. G. Beazley, charging him with refusing and failing to perform the official duties pertaining to his office as sheriff of Musselshell county. The defendant sheriff attacked the accusation on the ground that no facts are stated therein which bring the case within the .purview of section 11702, Revised Codes of 1921, upon which, admittedly, the proceeding is based, but the court overruled his contention. Thereafter certain paragraphs were stricken from the accusation upon motion, and one by stipulation of counsel. Four separate charges against the defendant remain, and upon these, notwithstanding his protest, the district court set the cause for trial. The defendant then sought a writ from this court to prohibit the trial upon the ground that the district court is without jurisdiction to proceed.
We issued an alternative writ which has been met with a motion to quash, and the respondents also have demurred to the defendant’s application.
Three of the four charges, except for names and dates, are the same. A consideration of paragraph 4 of the accusation will suffice for these. Therein it is alleged, in substance, that on or about the second day of April, 1925, in the county of Musselshell one Nick Yranieh then and there, and in the presence of the defendant sheriff, committed the crime of bribery in that said Yranieh then and there directly offered and gave to the defendant money and other things of value with the intent on the part of Yranieh to influence the defendant in the performance of his official and public duties; and that the defendant then and there willfully and unlawfully failed and neglected to arrest and institute proceedings against the said Yranieh for committing the crime of bribery, as it was the duty of the sheriff to do.
The determinative question is: Do these allegations charge willful or corrupt misconduct or malfeasance in office, or only nonfeasance, on part of the defendant? If willful' or corrupt malfeasance is charged, ouster proceedings must be under the provisions of section 11688, Revised Codes of 1921, and the court in this instance would have no jurisdiction to proceed. If, on the other hand, the allegations charge nonfeasance only, the proceeding may be maintained under section 11702, Revised Codes of 1921, which makes provision for the summary removal of public officers “when an accusation in writing, verified by the oath of any person, is presented to the district court, alleging that any officer within the jurisdiction of the court * * * has willfully refused or neglected to perform the official duties pertaining to his office,” and the charge be sustained, the court must enter a judgment that the party accused be deprived of his office.
The distinction between offenses cognizable under section 11688 and those under 11702 has been pointed out in State ex rel. Rowe v. District Court, 44 Mont. 318, Ann. Cas. 1913B, 396, 119 Pac. 1103, and State ex rel. Hessler v. District Court, 64 Mont. 296, 209 Pac. 1052, and need not be repeated here.
Under section 11688 the defendant is entitled to a jury trial, but is not under the provisions of section 11702 except where he is charged with collecting illegal fees or salaries. (State ex rel. Bullock v. District Court, 62 Mont. 600, 205 Pac. 955.)
So far as Vranich is concerned, the accusation clearly charges bribery (see. 10823, Rev. Codes 1921), but does it so charge as respects the defendant sheriff? Section 10823 relates to those who offer bribes; it reads: “Every person who gives or offers any bribe to any executive officer of this .state, with intent to influence him in respect to any act, decision, vote, opinion, or other proceeding as such officer, is punishable by imprisonment in the state prison not less than one nor more than ten years, and is disqualified from holding any office in this state.” The next section, 10824, so far as applicable here, provides in substance that every executive officer who asks, receives or agrees to receive any bribe, upon any agreement or understanding that his action upon any matter then pending, or which may be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in the state prison, forfeits his office, and is forever disqualified from holding any office in this state.
It is apparent that the facts stated in the accusation are not sufficient to charge the defendant with the commission of the crime of asking, receiving or agreeing to receive, a bribe under section 10824. To state a cause of action against the defendant it would be essential to allege that he had asked, received or agreed to receive, the bribe upon an agreement' or understanding that his official action should be influenced thereby. The accusation does not so state. It is easily conceivable that a sheriff might receive an offered bribe without any intention of being influenced in the performance of his official duties. He might do so with the intention to entrap the briber or to expose the briber and others acting in concert with him. This is not a far-fetched supposition; we have historical warrant for it in the archives of this court. (In re Wellcome, 23 Mont. 450, 59 Pac. 445.) As the accusation does not allege culpability of the sheriff in receiving the bribe, it does not charge him with willful or corrupt misconduct or malfeasance in office. True, the statements in the accusation have a suspicious aspect. The fact that the defendant received the bribe and then did not arrest the briber justifies a suspicion, almost amounting to an inference, that in receiving the bribe the defendant did so with a corrupt motive; but it cannot be said that a necessary inference to that effect follows.
Upon an analysis of paragraph 4 it may not be doubted that the pleader chose his phraseology advisedly; plainly it was his intention to avoid charging willful misconduct or malfeasance on part of the sheriff, and this purpose he has accomplished. Nonfeasance is pleaded. It is the duty of a sheriff to “arrest and take before the nearest magistrate for examination, all persons who attempt to commit or have committed a public offense” (subd. 2, sec. 4774, Rev. Codes 1921); and of course a sheriff may arrest without a warrant anyone who commits or attempts to commit an offense in his presence. (Sec. 11753, Rev. Codes 1921.)
If, as alleged, Vranieh committed bribery in the presence of the defendant, and he, the sheriff, then and there failed and neglected to arrest and institute proceedings against Vranich for the crime committed, the defendant is guilty of such nonfeasance with respect to his official duties as should result in his removal from office.
The fourth charge set forth in paragraph 5 of the accusa tion, presents a different situation. In this it is alleged that the defendant was an active participant in the offenses committed; it required his participation to constitute. the precise acts charged; the things done by him were acts of commission, not of omission. If the accusation be true, the defendant’s participation in the things done constituted malfeasance in office, and it does not detract from the affirmative character of his acts that the accusation alleges that he willfully neglected and refused to perform the duties of his office when he did not arrest his partner in guilt.
One accusing an officer of misfeasance or malfeasance in office — a matter cognizable only by a grand jury under the provisions of section 11688, and under which the officer is by right entitled to a jury trial — cannot, by also pleading nonfeasance, bring the accusation within the purview of section 11702, under which an officer may be tried summarily; the acts described in the accusation and not the conclusion of the pleader as to their legal effect determine the quality of the conduct charged. (State ex rel. Hessler v. District Court, supra.) It follows that the court has no jurisdiction to proceed under the allegations of paragraph 5 of the accusation.
As to the first three charges above considered, being those embraced in paragraphs 4, 6 and 7 of the accusation, the alternative writ of prohibition is discharged, and the application of the defendant is denied; as to the fourth charge, being that embraced in paragraph 5 of the accusation, let the writ of prohibition issue as prayed for.
Associate Justices Holloway, Galen, Stark and Matthews concur.
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18
] |
MR. JUSTICE STARK
delivered tbe opinion of tbe court.
Tbe complaint in this action alleges that on November 10, 1921, tbe defendant executed and delivered to tbe plaintiff a note for $1,463.70, due on October 1, 1922, and at tbe same time to secure its payment gave plaintiff a chattel mortgage covering all of the crops to be grown during the year 1922 upon the south half of the southeast quarter of the northeast quarter of section 26, and the southeast quarter of section 27, all in township 29 north, range 4 west, Pondera county, which mortgage was duly filed in the proper office; that defendant planted, harvested and threshed a crop of wheat upon said land in 1922, and at the time of the commencement of the action still had about 1,000 bushels of the same in his possession ; that,' after crediting certain payments made by defendant on the note, there was a balance of $585.16 due thereon, which defendant had not paid; that this constituted a breach of the provisions of the chattel mortgage, and entitled the plaintiff to the possession of the mortgaged grain which defendant had refused to surrender to it after demand had been made upon him therefor.
Issue was joined by defendant’s answer, and the cause proceeded to trial before a jury. At the close of all the testimony, upon motion of counsel for defendant, the court directed the jury to return a verdict in favor of the defendant, which was done. Upon this verdict a judgment was entered, from which the plaintiff has appealed.
The complaint is so framed that it would be sufficient to sustain a judgment foreclosing the chattel mortgage and directing a sale of the mortgaged property, or it would sustain a judgment in claim and delivery, which would give plaintiff possession of the mortgaged property and therefore enable it to proceed to foreclosure of the chattel mortgage under the power of sale contained therein. During the progress of the trial, when the nature of ¿he action was being inquired into, the court asked counsel for plaintiff: “Is this an action on foreclosure of chattel mortgage or an action in claim and delivery?” to which inquiry counsel replied: “Claim and delivery.” In passing upon the motion for a directed verdict, the court considered the action as being in claim and delivery, and in the opening paragraph of appellant’s brief counsel says: “All of the parties to the action and the court treated it as an action in claim and delivery.”
At the trial there was no dispute about the execution and delivery of the note and mortgage to plaintiff, and it was admitted that subsequent to the date of the mortgage and prior to the fall of 1922 the defendant became indebted to the plaintiff in the sum of $766.44 on an open account for goods, wares and merchandise sold and delivered to him by the plaintiff. It was. established without dispute that in the year 1922 the defendant raised 4,724 bushels of wheat, of which 710 bushels were produced on lands other than those mentioned in the mortgage, and therefore not subject to it. It was conceded that it required 780 bushels to liquidate the threshing bill, and that the defendant’s son, who had raised the crop on a portion of the lands mentioned in the mortgage, under arrangements with the defendant, was entitled to 1,200 bushels of the grain produced as his share; thus leaving 2,034 bushels subject to plaintiff’s mortgage.
During the-fall and winter of 1922 the defendant hauled to various elevators 1,692 bushels of wheat, the proceeds from which, amounting to $1,911.68, were turned over to the pláintiff, and by it applied first to payment of the open account of $766.44 and the balance of $1,045.24 on the mortgage note. After making this application, there was a balance of $585.16 due thereon. J. C. Price, president of the plaintiff, testified that defendant told him to apply these proceeds in this manner. This was denied by defendant, who said that the purpose of turning over the proceeds to the plaintiff was to pay off the mortgage debt. A determination of this issue of fact presented by this testimony was material to a decision of the case.
The testimony further showed that on November 28, 1921, the defendant gave the First National Bank of Conrad a chattel mortgage to secure the payment of two notes totaling $6,430, the last of which matured on October 1, 1922, which covered the same crops as those included in the plaintiff’s mortgage.
Other testimony was introduced concerning this mortgage for the purpose of determining whether the lien created by it existed at the time plaintiff made application of the proceeds of the wheat sales to the payment of its open account against the defendant. For reasons which will later appear, it is not 'necessary to make further mention of this testimony.
With reference to the quantity of mortgaged wheat which defendant had in his possession at the time of the commencement of this suit, Price testified that a day of two before the suit was started defendant stated to him that he had 1,000 bushels of wheat at home which was covered by plaintiff’s mortgage. Defendant denied having made this statement, but said that at the time in question “there was about 334 bushels on the place that had been covered by the chattel mortgage.’’ This presented a direct' conflict in the testimony upon a material fact.
Appellant’s assignment of error presents but one matter for consideration on this appeal, vis., whether the court erred in sustaining defendant’s motion for a directed verdict.
The rule that a case should not be withdrawn from the jury, unless, as a matter of law, recovery cannot be had upon any view of the evidence, including the legitimate inferences to be drawn therefrom, has been announced by this court so many times that a reference to the cases laying it down is not necessary.
Counsel for defendant admits that, but for the mortgage to the bank, it was competent for the plaintiff and the defendant, under the provisions of section 7430, Revised Codes of 1921, to apply the proceeds of the sales of the mortgaged wheat either to the payment of the open account or to the satisfaction of the mortgage debt, and that, in the absence of a specific direction by the defendant, the plaintiff had a right, at its election, to apply the same to the payment of either.
If it should be assumed that all of the wheat which defendant hauled into the elevators was covered by plaintiff’s mortgage, and all the proceeds therefrom had been applied to the mortgage note, they would have more than satisfied it, and the plaintiff could not have recovered in this action, since its right to recover was dependent upon the existence of its mortgage. But counsel argues, in effect, that the existence of the mortgage to the bank deprived the parties of the right to elect where these proceeds should be applied, and required that they should first be applied to the payment of the mortgage debt so as to leave the lien of the bank’s mortgage intact upon the overplus of the wheat.
This theory seems to have been acquiesced in by counsel for plaintiff at the trial, and was the one adopted by the court. To avoid its effect, plaintiff sought to show that the bank’s lien was not in existence when the application of the payments was made by it. In support of this theory counsel invokes the rule that a defendant can defeat the plaintiff’s recovery in a claim and delivery action by showing that the right to the possession of the property is in a third party — in this case the bank. But this rule has no application, unless such right of possession in the third party is absolute. (23 R. C. L. 923.) The bank’s right to possession of the property was contingent. Its mortgage created only a lien which, under some circumstances, entitled it to this right, if it should assert it. The rule is well stated in Rankine v. Greer, 38 Kan. 343, 5 Am. St. Rep. 751, 16 Pac. 680, as follows: “It is true that under a general denial in an action of replevin, the defendant may show that the plaintiff is not entitled to the possession of the property, that being the gist of the action; and to defeat plaintiff’s right of possession he may not only show that he is entitled to the possession himself, but may also show that the right of possession belongs to another, even if a stranger to the action; but this right of possession must be an absolute right, — one not contingent or depending upon circumstances or conditions,— and it would not be sufficient to show that there were other and superior outstanding mortgages against the property, although under some circumstances or conditions the mortgagee might be entitled to the possession of the property, even as against both plaintiff and defendant. This right of possession under a mortgage is a right to be claimed by the mortgagee. He might never claim the property; it might not be necessary for him to do so; the debt might be paid, or he might have other security dr other property included in his mortgage sufficient to satisfy his claim, independent of this property.” (See, also, 34 Cyc., p. 1415; McGill v. Howard, 61 Miss. 411; Wells on Replevin, 2d ed., pp. 55, 77, 80.)
The law affords ample protection to mortgagees situated as the bank was in this case, but it does not make them special wards of the courts or impose upon the courts the duty to enforce rights which they do not claim for themselves, upon the mere suggestion of one of the partiés that they have rights which they may possibly desire to assert.
If the plaintiff’s testimony in reference to its authority to apply the proceeds of the sales of the mortgaged wheat as it did was true, then, as against the defendant and the bank which was not asserting any rights in this suit, the plaintiff was entitled to the possession of all of the mortgaged wheat held by defendant when the suit was started, or sufficient thereof to satisfy its mortgage debt.
Plaintiff’s final contention that, regardless of its right to recover possession of the wheat in question, it was entitled to have a judgment against the defendant for the amount remaining due on the note after applying the proceeds of the wheat delivered to it upon the open account, and to a partial satisfaction of the mortgage debt under the directions of the defendant, cannot be sustained.
Having tried the action in the lower court upon the theory that it was in claim and delivery, and that the sole issue was its right to the possession of the wheat at the time of the commencement of the suit, plaintiff is bound by the theory thus adopted, and will not be heard in this court to say that the trial court committed error in adopting the theory which it assumed. (Waite v. Shoemaker & Co., 50 Mont. 264, 146 Pac. 736; Columbus State Bank v. Erb, 50 Mont. 442, 147 Pac. 617.)
It is our conclusion that the evidence in the ease presented a conflict upon material questions of fact which should have been submitted to the jury for determination, and that the court erred in sustaining the defendant’s motion for a directed verdict.
The judgment is reversed and the cause remanded to the district court for a new trial.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.
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] |
ME. JUSTICE GALEN
delivered the opinion of the court.
This is an action in conversion, brought by the plaintiff against the Maryland • Casualty Company, as surety on the official bond of Thomas P. Sherlock, sheriff of Broadwater county. It is alleged that on November 3, 1924, the sheriff, in disregard of the plaintiff’s ownership and claim thereof asserted to a certain Studebaker automobile, levied an execution upon the same, and thereafter sold it to satisfy a judgment entered in the district court of Lewis and Clark county, on June 2, 1922, in an action entitled Leopold Dobler, Plaintiff, v. John Tomcik and Lizi Tomcik, Defendants. Eecovery of the sum of $2,350, the alleged value of the automobile, $25 for expenses incurred in pursuit thereof, with interest on the total sum from the third day of November, 1924, and costs of suit, were asked. By its answer the defendant denies the plaintiff’s ownership of the automobile, and alleges that it was the property of John Tomcheck, and that if, before the levy of the execution, an attempted sale thereof was made to the plaintiff, it was without consideration and intended to delay and defraud the creditors of John Tomcheck. The plaintiff’s reply denies the affirmative allegations of the answer. On issue thus joined the case was tried to a jury, which rendered a verdict in favor of the plaintiff for the sum of $2,350, together with interest from November 3, 1924. Judgment was regularly entered on the verdict on June 4, 1924, for the sum of $2,459.55, with interest and costs. A motion for a new trial was made and denied. The appeal is from the judgment.
The defendant assigns many alleged errors committed by the trial court, all of which are argued in a lengthy brief as reasons for the reversal of the judgment. We have given earnest and careful consideration to all such, and conclude that the only question presented deserving serious consideration in disposition of the appeal is whether the evidence is sufficient to sustain the verdict. Issue was joined by the plead ings as to whether John Tomcik and Lizi Tomcik are the same persons as John Tomcheck and Lizi Tomcheck. No proof was submitted upon the question.
It appears that during the month of October, 1924, the T. C. Power Motor Car Company of Helena sold chances on a “Studebaker Special Six,” five-passenger eoupé, to be raffled off at its place of business on Saturday night, November 1, 1924. John Tomcheck, who resided near the town of Winston in Broadwater county, and was there engaged in ranching, held the lucky number, as a result of having purchased a single ticket. He is a man over sixty years of age, and the father of several children. One of his sons, Steve Tomcheck, is married to the plaintiff in this case, and both she and other members of the Tomcheck family held tickets on the automobile raffle. Steve Tomcheck and his wife were then residing at Marysville, about twenty-three miles distant from the city of Helena, and on the night of the raffle, Saturday, November 1, 1924, at • about ten minutes after 9, she was informed by the telephone operator at Marysville that her father-in-law, John Tomcheck, held the winning ticket on the automobile. Her husband was then conducting a pool-hall in Marysville, and she at once proceeded to his place of business and advised him of his father’s good fortune. Shortly thereafter they left Marysville, driving a Studebaker automobile, and proceeded to the city of Helena, at which point they stopped at the Central Garage, there got some gasoline, and while it was being put in their car, the plaintiff telephoned the office of the “Helena Independent,” a daily newspaper published in the city of Helena, for confirmation of the report that her father-in-law had been successful in winning the automobile so raffled. Having received assurances from that office that the report was correct, she then proceeded, together with her husband, towards the ranch property occupied by her father-in-law, located about a mile and a quarter from the town of Winston, east of Helena. Both the plaintiff and her husband had knowledge that the elder Tom-check had purchased a band of 450 sheep near Helena, and that he was to drive them to his ranch on that day, in consequence whereof, en route to Winston, they kept a sharp lookout for him after leaving the town of East Helena, and when near the Mountain View Ranch, at about 10:15 P. M., they observed near the road a band of sheep, it being a moonlight night, and upon approach thereto found that they were the elder Tomcheck’s sheep and that he was then engaged in corralling them for the night at the Mountain View Ranch. The plaintiff and her husband thereupon conveyed to the elder Tomcheck the information that he was successful in winning the automobile in the raffle. The sheep having been corralled, the elder Tomcheck got into the automobile driven by the plaintiff and her husband, and they proceeded thence to the town of Winston, where they arrived about the hour of 11 o’clock. On the way the plaintiff negotiated with her father-in-law for the purchase of the automobile, which he had won, agreeing to pay him therefor the sum of $500, although the advertised retail value thereof was the sum of $2,350. An agreement was reached, and on arriving at Winston the party proceeded to the general store of George M. Meyers, who was a notary public, for the purpose of having him prepare a bill of sale to the car in consummation of the sale thereof to the plaintiff, but as the store was closed they called at his place of residence. Upon entering his house they met Mr. Meyers and his wife and John F. Lenahan, section foreman of the Northern Pacific railroad at Winston, and his wife Atona, the latter being a sister of the plaintiff. Mirs. Meyers was very ill at the time, and shortly thereafter died. Mr. Tomcheck, Sr., and Alice Tomcheck advised Mr. Meyers of their mission, and, as he was considerably disturbed over 'the condition of his wife, he merely gave directions to the plaintiff as to his idea of the proper terms to be employed in the preparation of a bill of sale to the car. He furnished the plaintiff with the necessary writing materials, and thereupon she sat down at the dining-room table in the Meyers house and prepared a bill of sale for the car, which was thereupon signed by the elder Tomcheck, by his mark, and witnessed. It reads as follows:
“Winston, Montana, November 1st, 1924.
"“For and in consideration of the sum of ($500) five hundred dollars paid to me in hand this first day of November in the year nineteen twenty-four, I, John Tomchek, do hereby sell, convey, and transfer to Alice F. Tomchek one Studebaker eoupé automobile won by me from the T. C. Power Motor Co.
his
“John X Tomchek. mark
“Witness: J. F. Lbnahan.
“S. J. Tomchek.”
The instrument was signed by John Tomcheck in the presence of each of the subscribing witnesses, who affixed their signatures thereto as witnesses to his signature at his request, the plaintiff also being present at the time of its execution. After being so executed, it was delivered to the plaintiff, who thereupon paid John Tomcheck in currency the sum of $500, which amount she obtained from her husband, the latter having upon his person at the time that amount of currency. It made rather a large roll, as it was composed of $20, $10 and $5 bills. Upon completion of this transaction, the plaintiff and her husband went to the John Tomcheck ranch near by, where they remained overnight, and the senior Tomcheck returned to his band of sheep.
Andy Tomcheck, another son of John Tomcheck, arrived on the scene, accompanied by his wife, in another Studebaker automobile, early the next morning. Thereafter Charles Tom-check, the youngest son of John Tomcheck, who resided with his father on the ranch, and was then twenty years of age, accompanied by Andy Tomcheck in the latter’s car, started to Helena for the purpose of obtaining from the T. C. Power Motor Car Company the automobile in question; the plaintiff having requested Charles Tomcheck to go to Helena and secure the car and deliver it to her at Winston. En route they stopped where-the sheep had been left the night previous, got the elder Tomcheck to join them, and the three then proceeded to Helena. They reached the place of business of the T. C. Power Mbtor Car Company at about 9 o’clock Sunday morning, presented the winning ticket, and thereupon the raffled automobile was delivered to Charles Tomcheck, who drove the same back to the Tomcheck ranch, riding therein alone. He reached there between 11 and 12 o’clock in the forenoon, and delivered the car to the plaintiff. John Tomcheck and Andy Tomcheck returned in the latter’s automobile, and reached the ranch about the same time. A few minutes after the automobile was received by the plaintiff she drove it to Winston and back, accompanied by her two little boys and Mrs. Tomcheck, Sr. Later that day, in the afternoon, she again took her two children and her mother-in-law out for a second ride in the car, in company with Andy Tomcheck and his wife, and went almost to the Missouri River, a distance of four miles from the ranch, and returned before dark. Charlie also had the car out that afternoon for a short time, and was seen driving on the road near Winston, accompanied by his father, about 3 o’clock in the afternoon. Monday morning Charles Tomcheck borrowed the car from the plaintiff to make a business trip, and was seen near Townsend, driving the car on the road towards Winston, about half-past 1 in the afternoon. He returned to the ranch shortly thereafter, gave the car keys to the plaintiff, and left the car standing unlocked in the yard near the house. About half-past 2 o’clock the sheriff of Broadwater county, Thomas P. Sherlock, arrived at the ranch-house in a Ford car accompanied by another man. The plaintiff and Charlie were standing in the yard near the automobile in question, and the sheriff inquired of'them the whereabouts of John Tomcheck, and was informed that he was thereabout somewhere. While waiting for the senior Tomcheck, the sheriff observed the new automobile and inquired whether it was the one which was won on the raffle, and, being informed that it was, said that he came to “attach it.” About that time the elder Tomcheck appeared, and the sheriff served papers on him. The plaintiff protested that the car did not belong to John Tomcheck, that she had made purchase thereof from him and had a bill of sale thereto which she offered to exhibit, but the sheriff said he was not interested. Her husband also participated in the conversation, and insisted that the sheriff should not take the car. During this parley the plaintiff gave the car keys to Charlie, who locked it up and handed the keys back to her. The sheriff, finding the car locked, sent the man who came with him away in their Ford car to get a wrecking car in order to tow the automobile in dispute to Townsend, and the sheriff then sat down on the running-board of the automobile which he was levying upon, awaiting developments. The plaintiff took another car and drove to Winston for legal advice, returning shortly, and told the sheriff that she would let him take the car provided he would let Charlie drive the ear and accompany him to Townsend, and, after placing it in a garage under his keeping there, permit Charlie to lock it up and return the keys to her. Such arrangement, proving satisfactory to the sheriff, was fully carried out. Thereafter the plaintiff, in due time, regularly filed a third party claim to the car, and, as the execution creditor furnished the sheriff with a satisfactory indemnity bond, the car was subsequently sold on execution for the sum of $1,000, from the proceeds of which the judgment creditor was paid the amount of his judgment. There was no proof introduced as to the insolvency of John Tomcheck, and from the evidence it is shown that he owns 400 acres of land and a band of at least 450 sheep. It appears that both his land and sheep are mortgaged, but there is no showing made as to the value of either the land or the sheep, nor as to the amount of the mortgage indebtedness on either. While it is shown that he was indebted, neither the amount thereof nor the value of his property holdings were shown. There is dispute as to some of the facts, but the jury, resolved the same in the plaintiff’s favor.
Our statute provides: “Every transfer of personal property, other than a thing in action, or a ship or cargo at sea, or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent, and therefore void, against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers or encumbrancers in good faith subsequent to the transfer.” (Sec. 8604, Rev. Codes 1921.)
The fact that the automobile was sold on one day and not delivered until the next does not render the sale void, where delivery was impossible on the day of the sale; and it is properly a question for the jury’s determination, under the circumstances disclosed, whether delivery was made as soon after the sale as practicable. (O’Gara v. Lowry, 5 Mont. 427, 5 Pac. 583.) “In the determination of the question as to the kind of possession necessary to be given in order to make a sale of personal property valid as against creditors, regard must be had not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property.” (Morris v. McLaughlin, 25 Mont. 151, 64 Pac. 219.) And where the evidence is conflicting, it is for the jury to say whether there was such an immediate delivery and continued change of possession as will satisfy the statute. (Western Mining Supply Co. v. Melzner, 48 Mont. 174, 136 Pac. 44.)
The defendant predicated its defense upon fraud in law under the statute above quoted, whereas the case of Security State Bank v. McIntyre, 71 Mont. 186, 228 Pac. 618, involved fraud in fact. The rules applicable are to be distinguished.
Without objection the jury were instructed as follows: “Every transfer of personal property, if made by a person having at the time possession or control of the property, and not accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing transferred, is conclusively presumed to be fraudulent, and therefore void against those who are his creditors while he 'remains in possession. All of these three things — immediate delivery followed up by an actual and continued change of possession — are essential, and if there has been a failure of either of these three conditions, then such sale is conclusively presumed to be void against the creditors of the vendor.” Also: “Before the plaintiff can recover in this action she must show to your satisfaction, by a preponderance of the evidence, that she made an actual bona fide purchase of the ear on the night of November 1, 1924, and that the car had been actually delivered to her and an actual and continued change of possession had been made to her as soon as practicable and before the time the sheriff arrived and seized the said car, and that she was in possession of the car at the time of such seizure.” And further: “You are instructed that if you believe from the evidence that John Tomchek did not sell or deliver the ear described in the complaint to the plaintiff, Alice Tomchek, your verdict must be for the defendant.”
These instructions fully and correctly covered the law applicable to the facts. The pleadings put in issue the possession and ownership of the automobile at the time it was levied upon. Clearly, the sheriff could not justify the seizure of the property of a stranger to the writ; and the plaintiff was entitled to recover upon a showing, satisfactory to the jury, that she had purchased the car and was the owner thereof when it was levied upon and taken away by the sheriff.
Both the trial court and the jury had the witnesses before them, and were afforded opportunity to observe the manner in which they testified, as well as their demeanor upon the stand; and, in view of the conflict in the evidence and the court’s denial of the defendant’s motion for a new trial, it is not within the province of this court to disturb the judgment. (Bank of Commerce v. United States F. & G. Co., 58 Mont. 236, 194 Pac. 158.)
The judgment is affirmed.
'Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway and Stark concur.
Mr. Justice Matthews being disqualified did not hear the argument and takes no part in the foregoing opinion.
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JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from a Second Judicial District Court, Silver Bow County, jury verdict of the deliberate homicide of Willie Fleming. We affirm.
There are five issues on appeal:
1. Did the trial court err in informing the jury, outside of the presence of the defendant and counsel, that they would not be allowed to take notes?
2. Did the trial court err when it prohibited the defendant from cross-examining certain witnesses on their prior crimes?
3. Did the trial court err when it would not allow the defendant to introduce evidence regarding Mitch Spindler?
4. Was the evidence produced by the State of the defendant’s activities on the night before the shooting improper 404(b) evidence or part of the res gestae of the crime charged?
5. Did the trial court err when it ruled that the defendant’s evidence on juror misconduct was inadmissible?
On the evening of July 11, 1991 in Butte, Montana, William (Willie) Fleming went to Mitch and Cheryl Spindler’s house. Willie and Mitch were having a beer when Cheryl joined them. At about 9:00 p.m., the appellant appeared at the Spindler home. Cheryl testified that the appellant told her that his father had passed away and he was angry, mad and hurt. The appellant joined Mitch and Willie for a beer and stated that he had consumed beer and various pills before his arrival at the Spindler home. At some point thereafter, the appellant showed a handgun he had in his possession and was “waving it around and stuff.”
Lorraine Valentine (Lorraine) and Mick Jacobson (Mick), friends of the Spindlers came to the house around 11:45 p.m. to see if Mitch and Cheryl wanted to go to a comedy show. Mick was to start a prison term the following morning for a drug related offense. The Spindlers did not accompany them to the show but Mick and Lorraine returned to the Spindler home after the show. Cheryl testified that the appellant appeared to be quite upset at Mick and was “harassing” him but Mick did not want any trouble, and attempted to leave.
Then the appellant asked the group to come to his house for a drink before Mick had to leave the next day. Cheryl and Mitch Spindler drove their car with the appellant as a passenger. Cheryl testified that during the drive to the appellant’s house, the appellant stated that he was going to kill Mick and make it look like a burglary. They arrived at the appellant’s house for drinks and about 15 minutes later, Lorraine and Mick arrived. Cheryl testified that she left with Mitch and Willie first at about 1:30 or 2:30 a.m., they all returned to the Spindler home and Mitch and Willie continued drinking. Cheryl also testified that the appellant called sometime after 3:00 a.m. and wanted Mick’s address. She gave the telephone to Mitch. The appellant returned to the Spindler house while Willie was still there but Willie and the appellant left the house about 5:30 or 6:00 a.m.
Steve Fleming, Willie’s half-brother, testified that Willie came home about 5:30 a.m. on July 12, with the appellant, and they stayed at the house for approximately 15 minutes. Steve also testified that the two returned to the Fleming house at about 7:30 a.m., Willie called his boss, Tom Tucker, and the two left about 20 minutes later. Willie’s sister, Billie Jo Blackburn, confirmed her brother, Steve’s testimony. This was the last time Steve and Billie Jo saw Willie Fleming alive.
The appellant, however, testified that he went to the Spindler house on July 11,1991, at about 7:00 or 7:30 p.m. for drinks. He stated that Cheryl and Mitch Spindler were there and so was Willie Fleming, who was introduced as “Jim.” He further testified that Mick and Lorraine arrived about 45 minutes later. The appellant stated that he had no gun when he was in the Spindler residence but there was a gun owned by Mitch that was in view. He further testified that when the group went to his house, he showed Mitch one of his guns. At some point later, Cheryl, Mitch and Willie left the appellant’s house and Mick and Lorraine left some time later. Mitch called the appellant later and suggested that he return to the Spindler house so appellant packed up some things and left.
The appellant testified that he arrived home around 3:00 a.m., cleaned the kitchen and went to bed. Later that morning, the appellant was awakened by the sound of breaking glass. He woke his wife, asked her to grab his gun and give it to him, which she did, and he got dressed. According to his testimony, he proceeded into the hall and down the stairs. As he approached the bottom of the steps, he saw broken glass and someone he thought was Willie Fleming in the direction of the kitchen. He confronted Willie and asked him to put his hands on his head and turn around. He said Willie did not put his hands on his head but did turn around and shortly thereafter, he started to come toward the appellant. The appellant shot Willie in the leg and after a few seconds, Willie sat down. The appellant then asked his wife for a towel and applied it to Willie’s leg. He then went to the phone to call the police, but he saw Willie coming toward him. The appellant retrieved a gun from his wife’s purse in the closet and tried to get Willie to stop coming toward him. He stated that Willie backed away for a short time and then came toward him again in a position to tackle the appellant. The appellant aimed the gun at Willie and though he testified that he tried to hit him in the abdomen or his leg, he fired and hit him in the head. The appellant picked up the phone and called the police at 911.
When the police arrived, the appellant was on the telephone and his wife was also in the residence. Willie was lying inside the front door with his head toward the door. The EMTs entered next, noted a wound in the leg and one in the head and checked for pulses but found no signs of life. Lieutenant Walsh advised the appellant of his Miranda rights and he was taken to the Public Safety Building and then transported to the county jail. Trial was held from January 13 through January 17, 1992. The appellant was found guilty of deliberate homicide by a jury and sentenced to the state prison for forty years with an additional 10 years for use of a dangerous weapon. This appeal followed.
The scope of review for evidentiary rulings and trial administration issues by the trial court is whether the court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.
1. Taking notes by the Jury
The appellant argues “that the Judge and/or his Clerk had ex parte contact with members of the Jury during the trial concerning the taking of notes and ruled that they could not.” The appellant contends that this ex parte contact between the court and the jury was improper and was reversible error. The State counters that the majority of jurisdictions hold that the matter of note-taking is within the sound discretion of the court.
The appellant cites a Montana statute, which he argues supports an argument that “[o]nee a juror requests permission to take notes that permission should be granted and the jurors who do decided (sic) to take notes must be permitted to make use of them during deliberations.” Section 46-16-504, MCA, states:
Upon retiring for deliberation, the jurors may take with them the written jury instructions read by the court, notes of the proceed ings taken by themselves, and all exhibits that have been received as evidence in the cause that in the opinion of the court will be necessary.
This statute does not concern whether a juror may take notes in the first place, but whether a juror may take the notes upon retiring to the jury room for deliberation. It is not applicable.
Case law supports the State’s argument that the matter of note-taking is within the discretion of the court. In fact, “it has never been suggested that the judge must permit the practice; the question has always been whether he must forbid it. Moreover, it is at most a matter of discretion.” United States v. Campbell (N.D. Iowa, W.D. 1956), 138 F. Supp. 344, 352. The decision as to whether jury members may take notes is a matter within the discretion of the court. United States v. Murray (9th Cir. 1973), 492 F.2d 178, 193; United States v. Johnson (6th Cir. 1978), 584 F.2d 148, 157; United States v. Anthony (8th Cir. 1977), 565 F.2d 533, 536; People v. Ellinger (Colo. App. 1987), 754 P.2d 396, 397; Alaska State Housing Authority v. Contento (Alaska 1967), 432 P.2d 117, 122; Billings v. People (Colo. 1970), 466 P.2d 474, 478. The trial court did not err in prohibiting the jury from taking notes during the trial.
The appellant further contends he and his counsel should have been present when the judge told the jury they could not take notes. We conclude that the judge’s comment to the jury concerning taking notes did not have a deleterious effect on the appellant’s case. The judge merely told the jury they could not take notes during the trial because it might detract them from important points of the case. The judge instructed on a matter that was within his discretion. He did not remark about a fact in controversy in the case nor did he say anything to influence the jury in a certain direction. U.S. v. Madrid (9th Cir. 1988), 842 F.2d 1090, 1094-95. Madrid states “that a defendant must demonstrate ‘actual prejudice’ resulting from an ex parte contact to receive a new trial.” Madrid at 1093. The appellant in this case provided no information in his offers of proof in conjunction with post trial motions for an acquittal or a new trial that would point to any prejudice to the appellant.
In Rushen v. Spain (1983), 464 U.S. 114, 118-119, 104 S.Ct. 453, 455-56, 78 L.Ed.2d 267, 273, the court stated:
[W]e have previously noted that the Constitution ‘does not require a new trial every time a juror has been placed in a potentially compromising situation ... [because] it is virtually impossible to shield jurors from every contact or influence that might theoreti cally affect their vote. There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice. (Citations omitted.)
Here, the judge gave a short message to the jury about a matter within his discretion long before the jury entered deliberations. The trial court did not abuse its discretion when it informed the jury that they could not take notes, even if the parties and their counsel are not present at the time.
2. Prior Criminal Convictions of Two Witnesses
The appellant argues that the trial court abused its discretion when it would not allow him to question two witnesses about their prior criminal histories when the prosecution asked about their “legal troubles” on direct examination. The trial court ruled in both situations that further testimony about prior crimes would be irrelevant.
The State argues that Rule 609, M.R.Evid., which states that “[for] the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is not admissible,” prohibited the appellant from inquiring further into the criminal history of the two witnesses. However, the State did inquire about the previous crimes on direct examination.
The better argument is that the determination of relevancy is a matter within the discretion of the court. “The District Court has broad discretion to determine whether or not evidence is relevant. Absent a showing that the District Court has abused its discretion, this Court will not overturn the District Court’s determination of relevancy.” State v. Sadowski (1991), 247 Mont. 63, 69, 805 P.2d 537, 541. The State’s attorney questioned Cheryl about a recent charge for obtaining dangerous prescription drugs. The attorney elicited that the charge had been dropped from a felony to a misdemeanor and she pled guilty and was sentenced. She stated that the charge had nothing to do with her testimony at the appellant’s trial. Mick testified that he had been residing at the Great Falls Pre-Release Center, having been transferred from the Montana State Prison. He was sent to prison on a conviction for felony possession of dangerous drugs with intent to sell. When the defense counsel tried to inquire further into the witness’ prior criminal history, the State objected and stated that “further inquiry into that is not relevant under Rule 608 of the Rules of Procedure that has any probative value of the Defendant’s truthfulness or untruthfulness.” The trial court agreed and sustained the objection. See Rule 608, M.R. Evid. and Commission Comments. No offers of proof were made. We conclude that the trial court did not abuse its discretion in ruling that evidence of other prior crimes of the two witnesses was irrelevant.
3. Introduction of Evidence Regarding Non-witness Mitch Spindler
The appellant states that granting the State’s motion to exclude evidence concerning Mitch Spindler was a reversible error. The State counters that any evidence about Mitch Spindler, a non-witness was irrelevant. We agree.
Mitch Spindler was an associate of Willie Fleming, the deceased, and the appellant. He was present at the parties the night before the shooting death of Willie Fleming and would have testified had he not died before the time of trial. However, the evidence of his lifestyle and former criminal history was irrelevant to the homicide ofWillie Fleming on the morning of July 12,1991. The trial court did not abuse its discretion in excluding evidence of the non-witness Mitch Spindler.
4. Allowing the State to Use 404(b) Evidence
The appellant argues that the State promised not to put on any Rule 404(b) evidence at trial but then questioned witnesses about actions and statements of the appellant on the evening prior to the shooting death. The State argues that these actions and statements are part of the res gestae of the homicide and not “other acts” as the appellant claims.
Rule 404(b), M.R. Evid., states:
Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The appellant contends that evidence of a conversation between himself and the Spindlers about the appellant shooting Mick Jacobson, evidence that the appellant was angry and upset about the death of his father and evidence that he was “brandishing” a gun during the evening was evidence of other acts and therefore, the State should have provided a “Just” notice.
Cheryl Spindler testified to the following conversation between herself, her husband and the appellant:
As we were going up Excelsior he asked Mitch and I if we had ever witnessed a murder and we says, “No, and we never want to,” and he proceeded to say that he was going to get Mick up at his house, Mick was coming up, he was going to get Mick up to his house and he said that he was going to kill him and make it look like a burglary but he didn’t want any witnesses around. He wanted Mitch and I to leave when Mick got up there.
Lorraine Valentine, Mick Jacobson and Cheryl Spindler also testified that the appellant had a gun during the evening and was “waving it around, putting it in and out of the case, holding it in his hand.” The State contends that the conversation above and the appellant’s waving the gun around show the appellant’s state of mind and as such are relevant to the crime.
We agree. As stated inState v. Riley (1982), 199 Mont. 413, 425-426, 649 P.d 1273, 1279:
This Court has identified several kinds of evidence which may be admitted despite the fact it tends to prove crimes other than those charged. See State v. Meidinger (1972), 160 Mont. 310, 321, 502 P.2d 58, 65, wherein this Court allowed evidence of crimes committed in preparation for the charged offense as part of res gestae. In addition, in State v. Frates (1972), 160 Mont. 431, 437, 503 P.2d 47, 50, we allowed evidence of prior drug sales between the defendant and the police informant as “part of the corpus delicti of the crime ... charged.” In a series of recent cases, the Court held that evidence of crimes which is inextricably or inseparably linked with the crime charged may be admitted without regard to the rules governing “other crimes” evidence.
The common thread tying these cases together is the fact that the State is entitled to present the entire corpus delicti of the charged offense including matters closely related to the offense and explanatory of it, even when such evidence discloses crimes other than those charged. (Citations omitted.)
“This rule overrides the requirements of Just.” State v. Gillham (1983), 206 Mont. 169, 178, 670 P.2d 544, 549. We conclude that the appellant’s statements and actions are relevant to his state of mind and actions in the early morning of July 12, 1991. The trial court did not abuse its discretion in allowing this evidence to come in because it was relevant to the appellant’s state of mind and the crime charged.
5. Juror Misconduct
The appellant argues “that a new trial was necessary because of jury misconduct.” Specifically, the appellant complains that:
1. The jurors conducted an experiment in which some jurors “acted out” the possibility that the decedent was trying to get away at the time he was shot.
2. A juror felt pressured by other jurors to decide the case.
3. A juror informed the other jurors that he had personal knowledge that a telephone log was kept of all telephone calls made from the jail.
4. The jury used a “blow up of a detective’s crime scene sketch.”
5. Some of the jurors had to intermingle with spectators during breaks of the trial.
The trial court concluded that the allegations of juror misconduct did not fall within the exceptions of Rule 606(b), M.R. Evid., and therefore granted the State’s motions to strike the single juror’s affidavit the appellant sought to introduce and to quash the subpoenas issued to jurors who had been interviewed by the defense investigator. As to the appellant’s allegations of juror misconduct, the trial court stated:
All I can do is consider that you’re talking about the frame of mind of the jurors during their deliberations and whether they were influenced by any of the activities during the course of the trial. Again, that’s covered by the Rule 606(b), you’re not allowed do to (sic) that. And so that motion is denied. All on the basis of the application of the Rule 606(b).
We agree with the trial court’s rulings that under Rule 606(b), M.R. Evid., these are not matters that fall within the rule’s exceptions and are therefore not matters about which the court can inquire. Rule 606(b), M.R. Evid., states that:
Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affi davit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.
The five matters complained of by the appellant do not fall within the three exceptions to Rule 606(b), M.R. Evid. They are associated with either the mental processes of the jurors or come within the knowledge and experience they bring with them to the jury room. Harry v. Elderkin (1981), 196 Mont. 1, 7-8, 637 P.2d 809, 813, is instructive concerning whether jury affidavits may be used to impeach a jury verdict. Harry states:
The cases on the use of juror affidavits fall into two major categories: 1) those involving external influence on the jury and 2) those involving internal influence on the jury. Where external influence is exerted on the jury or where extraneous prejudicial information is brought to the jury’s attention, juror affidavits can be the basis for overturning the judgment if either party was thereby deprived of a fair trial. On the other hand, juror affidavits may not be used to impeach the verdict based upon internal influences on the jury, such as a mistake of evidence or misapprehension of the law. (Citations omitted.)
Harry, at 7-8, 637 P.2d at 813. In the present case, the appellant’s complaints fall within internal influences and therefore, cannot be used to impeach the jury verdict. The jury’s use of demonstrative evidence and experimentation with the evidence are not external influences but part of the mental processes of the jurors during deliberation. State v. DeMers (1988), 234 Mont. 273, 277-278, 762 P.2d 860, 863. Pressure by other jurors also does not qualify as an exception to Rule 606(b), M.R. Evid. “A juror’s physical, mental, and emotional condition is inherent in the verdict, and the effect of such a condition on a juror’s vote is within the prohibition of Rule 606(b).” DeMers, at 277-278, 762 P.2d at 863. Additionally, knowledge and information shared from one juror to another or others is not an extraneous influence. “Jurors are expected to bring to the courtroom their own knowledge and experience to aid in the resolution of a case. ... For the juror to have considered the credibility of defendant’s expert witness within the parameters of his own experience and background is insufficient to qualify as an exception to Rule 606(b).” DeMers, at 277-278, 762 P.2d at 863.
Finally, although the appellant states that the jurors were subjected to the “heavy atmosphere” of the trial and some jurors used a restroom that was also used by spectators at the trial, some of whom were the decedent’s relatives and friends, the appellant can point to no specific instance where the jurors were bothered or influenced by any of the spectators.
In conclusion, the trial court did not abuse its discretion when it ruled that defense counsel could not impeach the jury verdict through affidavits and testimony because there were no external prejudicial influences on the jury.
AFFIRMED.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and WEBER concur.
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] |
JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from a Fourth Judicial District Court, Ravalli County jury verdict in an insurance bad faith action. We reverse.
The issues include:
1. Did the District Court properly apply the law of Montana in holding that when two parties act in bad faith, the party at comparatively greater fault is denied recovery?
2. Did the District Court properly interpret the Special Verdict by holding that damages were 53% attributable to Appellants’bad faith and 47% attributable to Respondent’s bad faith?
3. If the Appellants are entitled to recovery for damages, is the amount of their recovery $38,333.33, or 47% of $38,333.33? Appellants Tom and Jodie Stephens (appellants) owned Buster’s
Body Shop in Hamilton, Montana. Respondent Safeco Insurance of America (respondent) was the insurer of their automobile body repair shop, covering the shop with a policy with limits on the structure of $80,000 and limits on the structure’s contents of 30,000.
An accidental fire occurred in the body shop around May 6, 1987. Appellants notified the respondent’s agent of the fire and an investigation by their agents followed.
Respondent and appellants encountered problems in settling the claim and this litigation resulted. The complaint in this action was filed on May 5,1989. Trial in this case was held on May 28,1991 by jury.
The scope of review for questions of law is whether the trial court’s interpretation of the law is correct. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603.
At the close of trial in this action the jury was given a special verdict form. The questions on the special verdict form were as follows:
1. Did Safeco violate any duty of good faith and fair dealing owed to Plaintiffs? Yes: 8-4
2. Did the wrongful conduct found in question 1, if any, cause any damages to plaintiffs? Yes: 8-4
3. Did Safeco violate the Montana Unfair Claims Settlement Practices Act with such frequency as to indicate a general business practice? No: 12-0
4. Did the wrongful conduct found in Question 3, if any, cause any damages to Plaintiffs?
5. What is the total amount of pecuniary damages for emotional distress, if any, caused to Plaintiff Tom Stephens by the wrongful conduct found in your answers to Questions 1 through 4, if any? $38,333.33
6. Did plaintiffs violate any duty of good faith and fair dealing owed to Safeco? Yes: 11-1
7. Did the Plaintiffs fail to exercise ordinary care to mitigate their damages in this case? No: 11-1
8. Did Plaintiffs or their attorneys or agents interfere with Safeco’s performance of its duties under the policy? Yes: 11-1
9. Did the wrongful conduct of Plaintiffs found in answer to any of Questions 6-8 cause some of the Plaintiffs’ damages? Yes: 9-3
10. If, in your answers to Questions 1 through 9, you have determined that wrongful conduct on behalf of both Plaintiffs and Defendant have contributed to Plaintiffs’ damages, then, using 100% as the total combined wrongful conduct which has caused Plaintiffs’ damages, what proportion of the wrongful conduct do you determine is attributable to each of the parties, if any? Plaintiffs: 53% Defendants: 47%
The answers are as indicated.
The jury returned with a verdict stating the amount awarded for damages for emotional distress to Tom Stephens was $38,333.33. The jury also concluded that both parties violated the duty of good faith and fair dealing and the appellants interfered with respondent’s performance of its duties. The jury allocated the percentage of wrong ful conduct as 53% for the appellants and 47% for respondent. It is noted that in answer to Question 9 the jury found that appellant’s wrongful conduct caused some of appellant’s damages, but the verdict does not indicate such damages were in any way the same as the damages found in answer to Question 5, which was caused by wrongful conduct of respondent.
The trial court subsequently ordered the parties to prepare briefs on the issue of the type of judgment which should be entered by the court considering the verdict of the jury. The trial court reviewed the briefs and upon further study, ordered that the appellants were precluded from recovering any award because the jury had determined that their fault was proportionally greater than the respondent.
The appellants contend on appeal that they should receive the entire jury award of $38,333.33 because their “fault” in this matter cannot be compared to the “fault” of the respondent and accordingly offset. The respondent, however, states “that the insured’s own wrongful conduct was the major cause his (sic) own damages, and that the insurer’s wrongful conduct was a lesser factor in causing these damages.” Therefore, the insured should not recover from the respondent for his damages.
It is noted this cause of action arose prior to the adoption of § 33-18-242, MCA (1987), and therefore the applicability of said section is not an issue in this case on appeal.
We conclude that the appellants should receive the $38,333.33 awarded by the jury. “[I]nsurance companies have a duty to act in good faith with their insureds, and this duty exists independent of the insurance contract and independent of statute.” Lipinski v. Title Ins. Co. (1983), 202 Mont. 1, 15, 655 P.2d 970, 977. If this duty is breached the cause of action of the insured against the insurer sounds in tort. First Sec. Bank of Bozeman v. Goddard (1979), 181 Mont. 407, 419, 593 P.2d 1040, 1047.
However, if the situation is reversed, and the insured breaches the covenant of good faith and fair dealing, the result is not a tort, but a breach of contract. In Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767, this Court made clear “that the bad faith tort should be used only when the parties have a special relationship.” Story, 791 P.2d at 775. Story adopted five elements to be applied in determining whether the parties have a special relationship:
(1) the contract must be such that the parties are in inherently unequal bargaining positions; [and] (2) the motivation for entering the contract must be a non-profit motivation, i.e., to secure peace of mind, security, future protection; [and] (3) ordinary contract damages are not adequate because (a) they do not require the party in the superior position to account for its actions, and (b) they do not make the inferior party “whole”; [and] (4) one party is especially vulnerable because of the type of harm it may suffer and of necessity places trust in the other party to perform; and (5) the other party is aware of this vulnerability.
Story, 791 P.2d at 776.
When these five elements are applied to this case, the special relationship is established. First, in the insurance context, the insurer occupies the superior bargaining position and the insured in the inferior. This is because “in the insurance field the insured usually has no voice in the preparation of the insurance policy ...” Goddard, 593 P.2d at 1047. There is a “great disparity between the economic positions of the parties to a contract of insurance. ...” Goddard, 593 P.2d at 1047.
Second, the insured has a non-profit motive for entering into the insurance contract. “The insured seeks to purchase protection and security. This expectation is perhaps justified, if not entirely motivated, by insurers’ advertisements promising security and freedom from worry.” Graham and Luck, “The Continuing Development of the Tort of Bad Faith in Montana,” 45 Mont. L. Rev. 43, 46 (1984).
Third, ordinary contract damages would not make appellants whole. Appellant Tom Stephens suffered from severe mental distress due to the problems with the insurance claim. He incurred certain medical expenses in connection with that distress.
Fourth, “at the time an insured party makes a claim he may be in dire financial straits and therefore may be especially vulnerable to oppressive tactics by an insurer seeking a settlement of a release.” Goddard, 593 P.2d at 1047. Finally, the fifth element applies because the insurer is the author of the insurance contract and is aware of the insured’s vulnerability. “The special considerations existent in a consumer-held insurance contract do not apply to an ordinary contract between businessmen.” Goddard, 593 P.2d at 1047.
The insurer is certainly not in apprehension of the same concerns in its relationship with the insured. “The tort of bad faith... serves to discourage oppression in contracts which necessarily give one party a superior position.” Story, 791 P.2d at 776. The insurer, in the superior position, is therefore liable in tort whereas there is no fear that the insured will harm the insurer to such an extent.
The respondent argues that under Martel v. Montana Power Co. (1988), 231 Mont. 96, 752 P.2d 140, respondent’s bad faith and the appellants’ bad faith can be compared and the appellants’ bad faith can be used to offset the respondent’s bad faith in determining damages to appellant Tom Stephens. We disagree.
As stated earlier, the two parties occupy two very different positions in relation to each other. Because of their varying positions, the respondent’s conduct rises to the level of a tort while the appellants’ conduct is a breach of contract.
Under Martel, conduct rising to the level of a tort is compared to other conduct rising to a tort. Martel, 752 P.2d at 143. However, the appellants’ conduct here does not involve a tort so it cannot be compared to the respondent’s tortious conduct. Therefore, the respondent’s tort cannot be offset comparatively by the appellants’ contract breach. These are two distinctive legal concepts as to liability and damages. They are apples and oranges. The jury verdict to award the appellants $38,333.33 is reinstated.
The District Court was incorrect when it entered judgment concluding the appellants were precluded from recovering any portion of the jury’s award. REVERSED.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT, HARRISON and WEBER concur.
|
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
Plaintiffs Elroy and Barbara Yager and defendant Rolland Deane appeal from an order of the Eighteenth Judicial District Court, Gallatin County, granting summary judgment in favor of the State of Montana. We affirm.
The sole issue on appeal is whether the District Court erred in granting summary judgment on the basis that the State of Montana had no duty to prevent livestock from wandering onto the interstate highway.
The pertinent facts of the case are undisputed. On March 22,1989, at approximately 1:30 a.m., Elroy Yager (Yager) was driving a semi-tractor and trailer in the westbound lane of Interstate 90 (1-90). Yager’s vehicle struck a horse, owned by defendant Rolland Deane (Deane), that had wandered onto the highway near the Jackson Creek interchange east of Bozeman. As a result of the impact, the semi-tractor and trailer went through a guardrail and rolled down an embankment, injuring Yager.
On March 29,1991, Elroy and Barbara Yager (the Yagers) filed suit against Deane and the State of Montana (the State). They alleged that Deane negligently allowed his horse to wander onto 1-90 and that the State negligently maintained a fence and cattleguard, allowing the horse access to 1-90. Elroy Yager sought damages for permanent bodily injury, medical expenses and lost wages. Barbara Yager sought damages for loss of consortium. Deane and the State filed cross-claims seeking indemnity and contribution from each other.
On April 24, 1992, the District Court granted the State’s motion for summary judgment. The District Court determined that actionable negligence could not lie against the State absent a legal duty to erect or maintain a fence or to keep the interstate highway free of livestock. It concluded that no such duty existed. The Yagers and Deane appeal.
Did the District Court err in granting summary judgment on the basis that the State of Montana had no duty to prevent livestock from wandering onto the interstate highway?
A district court properly grants summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R Ordinarily, issues of negligence are issues of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. However, actionable negligence arises only from the breach of a legal duty; the existence of a legal duty is a question of law to be determined by the district court. Nautilus Insurance Co. v. First National Insurance (1992), 254 Mont. 296, 837 P.2d 409, 411, 49 St.Rep. 802, 803. The question before us, as it was before the District Court, is whether the State has a legal duty on which appellants can base a negligence claim. We examine, in turn, the sources which appellants contend impose a duty on the State to prevent livestock from wandering onto 1-90 where the accident occurred.
Statutory Basis
The District Court considered whether §§ 60-7-103 and 60-5-105(1), MCA, required the State to prevent livestock from wandering onto the highway. Section 60-7-103, MCA, provides:
Department to fence right-of-way through open range.
(1) The department shall fence the right-of-way of any part of the state highway system that is constructed or reconstructed after July 1,1969, through open range where livestock present a hazard to the safety of the motorist. Where a fence is constructed, adequate stock gates or stock passes, as necessary, shall be provided to make land on either side of the highway usable for livestock purposes.
(2) The department shall erect a fence in every high-hazard area as promptly as possible, and the cost of such construction is an expenditure for the enforcement of federal-aid highway safety programs. Gates, stock underpasses, water facilities, and cattle guards may be installed where necessary to make the land on either side of the highway usable for livestock purposes or where a public right-of-way intersects the state highway.
The court determined that the area was not “open range” within the meaning of § 60-7-102(1), MCA, because it lies within a horse herd district. Furthermore, the segment of 1-90 where the accident occurred is not a high hazard area as defined in § 60-7-102(2), MCA; the highway is not part of the primary highway system nor has the segment been designated as a high hazard area. As a result, the court determined that § 60-7-103, MCA, did not require the State to erect a fence along the interstate.
Section 60-5-105(1), MCA, provides in pertinent part:
Design of controlled-access facility — entrance and exit restricted. (1) Each highway authority may so design any controlled-access facility and so regulate, restrict, or prohibit access as to best serve the traffic for which the facility is intended.
The District Court determined that this provision was permissive, and therefore, did not impose a duty on the State.
Appellants do not contend that the District Court erred in construing and applying §§ 60-7-103 and 60-5-105(1), MCA. Nor do appellants cite other statutory authority establishing a duty by the State to prevent livestock from wandering onto the interstate.
Deane contends, however, that once the State voluntarily constructs a fence along the highway right-of-way, as a controlled access facility under § 60-5-105(1), MCA, the State is required to exercise ordinary care in its construction and maintenance. The record reflects that the State did not “voluntarily’ construct the fence. Rather, the State erected the fence along the interstate highway right-of-way as a precondition for receiving federal funds.
We have previously stated that § 60-5-105(1), MCA, provides that the State may — not shall — restrict or prohibit access. Big Man v. State (1981), 192 Mont. 29, 36, 626 P.2d 235, 239. In Big Man, we determined that the statute’s permissive language did not require, or impose a duty on, the State to erect a fence to prevent access by pedestrians to a controlled access highway. While the specific facts on which our determination in Big Man was based are distinguishable, no provision in the statute imposes a duty to erect a fence for any purpose.
Deane cites Stewart v. Standard Publishing Co. (1936), 102 Mont. 43, 55 P.2d 694, to support his position that once the State constructs a fence under § 60-5-105, MCA, it owes a duty to the motoring public, who rely on the State’s construction and maintenance of the fence.
“[W]here a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of negligent failure so to perform it.”
Stewart, 55 P.2d 696, quoting 45 C.J. 650.
Even if the State’s construction of the fence could be characterized as a discharge of Deane’s duty to prevent the horse from wandering onto the highway, the rationale in Stewart provides no basis for imposing a duty on the State. Deane has not alleged or in any way established that in driving on the highway, Yager relied on the State’s construction and maintenance of the fence to prevent livestock from gaining access. We conclude that §§ 60-7-103 and 60-5-105(1), MCA, do not impose a duty on the State to maintain the fence or prevent livestock from wandering onto the highway.
The State’s General Duty to Keep Highways Reasonably Safe
The appellants did not assert before the District Court that the State’s general duty to keep highways reasonably safe imposed a duty on the State relative to livestock. On appeal, however, they urge us to extend the State’s general duty to include a specific duty requiring the State to prevent livestock from wandering onto the highway. Appellants rely on a number of sources for the State’s general duty. They contend that the State is required to maintain the fence along the right-of-way under its general duty to keep the highways reasonably safe, citing Buck v. State (1986), 222 Mont. 423, 429, 723 P.2d 210, 214. The Yagers also base the State’s general duty on its ownership of the right-of-way. They contend that property owners, including governmental entities, have a duty to maintain their property in a reasonably safe condition, relying on Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341, and Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491. Additionally, Deane relies on State ex rel. Byorth v. District Court (1977), 175 Mont. 63, 572 P.2d 201, as a source for the general duty.
While we do not disagree that the State has a general duty to keep highways in a reasonably safe condition, we decline to expand that duty to impose a new duty to prevent livestock from reaching interstate highways. Montana has been, and continues to be, an open range state. See State ex rel. Martin v. Finley (1987), 227 Mont. 242, 738 P.2d 497. Under the open range doctrine, neither the State nor livestock owners have a duty to prevent livestock from wandering onto roadways. However, due to the increase in motor travel and in an effort to protect the motoring public, the Montana legislature has passed two carefully crafted exceptions to the doctrine. Id. The State Department of Highways is required to fence certain rights-of-way pursuant to §§ 60-7-101 et seq., MCA. Sections 60-7-201 et seq., MCA, make it unlawful for a livestock owner to allow livestock to graze or occupy certain rights-of-way. As discussed above, the District Court determined that § 60-7-103, MCA, did not impose a duty on the State to fence livestock off the highway on the facts before it; appellants do not argue otherwise.
In Martin, we declined to impose duties on a livestock owner which were not specifically created by the Montana legislature via statutory provisions governing fencing of the open range. There, the State and others sought to enjoin livestock owners from allowing livestock to wander beyond their property. The plaintiffs claimed that the wandering livestock constituted a public nuisance pursuant to § 45-8-111, MCA, by interfering with the enjoyment of their property and posing a hazardous driving condition. We discussed the open range doctrine and set forth the statutory exceptions which impose liability on livestock owners for certain negligent conduct relating to their livestock and require the State to fence certain rights-of-way. We concluded that neither of the two “carefully crafted” statutory exceptions to the open range doctrine required the livestock owner to restrain his livestock and that case law imposed no such duty. Martin, 738 P.2d at 498-99. As a result, we declined to apply the general public nuisance statute to impose an additional duty not provided for in the specific open range provisions.
We reach the same result here. We decline to apply the State’s general duty to keep its property in a reasonably safe condition, as articulated in Kaiser and Limberhand, or its general duty to keep its highways in a reasonably safe condition, as enunciated in Buck and Byorth, to specifically require the State to prevent livestock from wandering onto the interstate highway. Where the Montana legislature has acted to define the duty of the State relative to livestock on roadways, we will not impose an additional duty, the source of which is extraneous to the statutory provisions governing the fencing of the open range.
Appellants contend that the District Court misapplied Buck in determining that the State’s general duty did not impose a duty on the State to maintain the fence. The court acknowledged that the State’s general duty to keep highways in a reasonably safe condition extended to the paved portions of the roadway and to the shoulders and adjacent parts of the roadway under Buck. The court reasoned, however, that the fence was well off the paved or shoulder portions of the highway and, therefore, that the State had no duty to maintain it. We do not disagree with appellants’ contention that the District Court failed to connect their argument on fencing to the “adjacent parts” language in Buck. However, we find no basis inBuck to impose a duty on the State to maintain the fence.
In Buck, the driver failed to negotiate a curve in the highway and went off the left hand side of the pavement. As the driver attempted to return the vehicle to the roadway, the vehicle collided with a bridge abutment. We concluded that the State’s duty to keep its highways in a reasonably safe condition extended to the shoulders “and the adjacent parts thereof.” Buck, 723 P.2d at 214. In relying on this language to support a duty by the State with regard to fencing, however, appellants fail to recognize that the extension of the State’s general duty in Buck specifically was premised on the “common experience that vehicles may stray or swerve from the usual traveled portion” of the roadway. Id. Here, Yager did not stray from the usually traveled path and encounter an unreasonably unsafe condition on an adjacent part of the roadway. Thus, the Buck language relied on by appellants is inapplicable here.
Finally, appellants assert that the District Court erroneously relied on Whitfield v. Therriault Corp. (1987), 229 Mont. 195, 745 P.2d 1126, and Ambrogini v. Todd (1982), 197 Mont. 111, 642 P.2d 1013, to support its determination that the State’s general duty did not require it to prevent livestock from gaining access to the highway. Those cases are, indeed, distinguishable on their facts from the present case and, therefore, are not controlling on the issue of the State’s duty to prevent livestock from wandering onto the particular roadway here. Whitfield and Ambrogini do reflect, however, our consistent refusal to impose a duty on the State or livestock owners relative to fencing livestock off roadways that is not specifically created by the legislature.
Montana Department of Highways Maintenance Manual
Section 3.110 of the Montana Department of Highways Maintenance Manual provides:
The major portion of the highway right of way has been fenced either by the adjoining landowner or by the state. The maintenance of this fence is detailed in the right of way agreement. On Interstate highways, however, the fence and its maintenance are the responsibility of the Department of Highways. Highway fences may be important as any other safety device on the highway and, thus, so are their maintenance. Placement of a fence not only outlines the limits of the right of way, but also keeps humans and animals away from hazardous areas. Careful inspection and routine maintenance should not be neglected.
The District Court ruled that the maintenance manual imposed no duty on the State to erect fences. The court determined that violations of the manual provide evidence of negligence only after the existence of a legal duty has been established.
The Yagers make a dual argument relating to the manual. First, they argue that the manual affirmatively imposes a duty on the State to maintain the fence, relying on Townsend v. State (1987), 227 Mont. 206, 738 P.2d 1274, and Hash v. State (1991), 247 Mont. 497, 807 P.2d 1363. Neither Townsend nor Hash holds, or infers in any way, that provisions of the maintenance manual impose a duty.
Second, the Yagers assert that a violation of the maintenance manual is evidence of negligence and that negligence is a fact question for the jury, relying again on Townsend and Hash. On this basis, they argue that the District Court erred in granting summary judgment. Townsend and Hash do support the Yagers' contention that violations of the manual are evidence of negligence. Townsend, 738 P.2d at 1276; Hash, 807 P.2d at 1366. However, the cases do not preclude summary judgment in the present case.
The existence of a duty was not at issue in either Townsend or Hash; the State’s general duty to keep highways in a reasonably safe condition was applicable to the facts of those cases. Under those circumstances, we concluded that proof of the State’s failure to comply with the manual was evidence of negligence. Here, appellants have not established the existence of a legal duty by the State to erect or maintain fences along the interstate highway to prevent livestock from gaining access. Thus, the question of whether the State breached its duty, to which violations of the manual as evidence of negligence properly could be addressed, simply does not arise in this case.
We conclude that the highway manual does not impose a duty on the State to maintain the fence. Absent the existence of a legal duty, the manual cannot be used as evidence that the State negligently maintained the fence.
Right-of-Way Purchase Agreement
The Yagers’ final contention is that the State assumed a duty to maintain the fence when it purchased the right-of-way. In support of this contention, the Yagers appended documents entitled Highway Right of Way Easement and Agreement to Fence to their brief opposing summary judgment in the District Court, and to their brief to this Court. The District Court did not consider the appended documents; nor did it address whether the State assumed a duty to maintain the fence when it purchased the right-of-way.
The Yagers contend, that the documents were properly before the District Court because they had been obtained from the Highway Department during discovery. However, when addressing a motion for summary judgment, a district court considers only discovery that is on file. Rule 56(c), M.R.Civ.R The Yagers failed to file the documents; on that basis, the District Court’s failure to address them or the issue for which they were appended was appropriate. We join the District Court in declining to address an issue lacking proper support in the record.
Appellants have failed to cite any authority imposing a duty on the State to prevent livestock from wandering on, or to erect or maintain a fence along, the section of the interstate highway where the accident occurred. Absent a duty, there can be no negligence. We hold that the District Court did not err in granting the State’s motion for summary judgment.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES WEBER and McDonough concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
Tara Minervino appeals from an order of the Eighth Judicial District Court, Cascade County, granting the University of Montana’s motion for change of venue. We affirm.
Appellant Tara Minervino (Minervino) filed a complaint against the University of Montana (University) alleging that the University failed to protect her from an assault which occurred on its campus in Missoula, Montana. Filed in the Eighth Judicial District Court, the complaint asserts that venue is proper in Cascade County pursuant to § 25-2-126(3), MCA, because the University is a political subdivision which is located in Cascade County by virtue of offering classes and maintaining an office at Malmstrom Air Force Base.
The University moved for change of venue to the First Judicial District Court, Lewis and Clark County, relying on § 25-2-126(1), MCA. The District Court granted the University’s motion. Minervino appeals.
Did the District Court err in granting the University’s motion to change venue from Cascade County to Lewis and Clark County?
The District Court determined that the University is the “state,” rather than a “political subdivision,” for venue purposes. On that basis, it considered the alternative venue locations contained in § 25-2-126(1), MCA, and concluded that venue was proper only in Missoula County, where the claim arose, or in Lewis and Clark County. The court granted the University’s motion for change of venue to Lewis and Clark County.
Minervino argues first that venue for this action is properly in Cascade County pursuant to § 25-2-122(1), MCA, which provides that the proper place of trial for a tort action is the county in which the defendant resides at the start of the action. She asserts that because the University has a campus location in Cascade County, venue is proper there. The record reflects that Minervino did not present this argument to the District Court, relying there only on § 25-2-126(3), MCA, and a waiver estoppel theory. This Court will not consider issues or theories of the case raised for the first time on appeal. Weaver v. Law Firm of Graybill, et al. (1990), 246 Mont. 175, 180, 803 P.2d 1089, 1093.
Minervino’s next contention is that the University is a “political subdivision” under § 25-2-126(3), MCA, rather than the “state” under § 25-2-126(1), MCA. Therefore, she argues, since trial of an action against a political subdivision is proper in the county where the claim arose or where the political subdivision is located, the University’s campus in Great Falls establishes proper venue in Cascade County. We disagree.
Montana’s venue statute for actions against the state or a political subdivision is § 25-2-126, MCA, which provides in pertinent part:
(1) The proper place of trial for an action against the state is in the county in which the claim arose or in Lewis and Clark County. In an action brought by a resident of the state, the county of his residence is also a proper place of trial.
(3) The proper place of trial for an action against a political subdivision is in the county in which the claim arose or in any county where the political subdivision is located.
Resolution of the issue before us requires definition of the terms “state” and “political subdivision” contained in subsections (1) and (3), respectively, of § 25-2-126, MCA.
It is true, as Minervino asserts, that the Montana Code Annotated contains more than one statutory definition of each of these terms and that no statute specifically mandates that the definitions contained therein apply to the terms as used in § 25-2-126, MCA. It also is clear, however, that the venue provisions in subsections (1) and (3) of § 25-2-126, MCA, previously were codified at Title 2, Chapter 9 of the Code.
Prior to 1985, provisions substantively identical to those at issue here were found at § 2-9-312, MCA. That statute was amended (in nonsubstantive ways) and recodified as an integral part of Title 25, Chapter 2, part 1 pursuant to Section 18(2) of Chapter 432, Montana Session Laws, 1985. It was renumbered as § 25-2-126(1) and (3), MCA, by the Code Commissioner. Our function is to effectuate the intent of the legislature. State ex rel. Roberts v. Pub. Serv. Comm’n (1990), 242 Mont. 242, 246, 790 P.2d 489, 492. This clear legislative history mandates a conclusion that the definitions contained in Title 2, Chapter 9, apply to the terms used in § 25-2-126, MCA.
Section 2-9-101(7), MCA, defines “state” as “the state of Montana or any office, department, agency, authority, commission, board, institution, hospital, college, university, or other instrumentality thereof.” “Political subdivision” is defined in § 2-9-101(5), MCA, to mean “any county, city, municipal corporation, school district; special improvement district or taxing district, or any other political subdivision or public corporation.” Applying these definitions to the issue before us, it is unequivocal that the University is the “state” for § 25-2-126, MCA, purposes.
Minervino asserts that the University argued in Kendall v. State (1988), 231 Mont. 316, 752 P.2d 1091, that it is not the “state” for venue purposes. As a result, she argues that the University has waived its right to contest venue on the basis that it is the “state,” or that it is estopped from arguing contrary to its position in Kendall.
Minervino cites to no authority in support of her waiver or estoppel theory regarding venue. In addition, estoppel theories — both judicial and equitable — rest on representations of facts. See DeMers v. Roncor, Inc. (1991), 249 Mont. 176, 814 P.2d 999; Dagel v. City of Great Falls (1991), 250 Mont. 224, 819 P.2d 186. Venue is not a question of fact; it is a question of law involving the application of venue statutes to pleaded facts. We conclude that the University is not precluded from asserting that it is the “state” for venue purposes in this case.
Having concluded that the University is the “state” for purposes of § 25-2-126(1), MCA, it remains only to apply that statute to the facts before us. Section 25-2-126(1), MCA, provides that venue for actions against the state — here, the University — is proper in one of three counties: 1) where the claim arose; 2) Lewis and Clark County; or 3) the county of plaintiff’s residence if plaintiff is a Montana resident. Here, Minervino’s claim did not arise in Cascade County; nor does she assert that she is or was a resident of Cascade County at any relevant time. Therefore, Cascade County is not an appropriate venue for this action under § 25-2-126, MCA.
When an action is filed in an improper venue, “a defendant may move for a change of place of trial to a designated county.” Section 25-2-114, MCA. Pursuant to § 25-2-126(1), MCA, proper venues for Minervino’s action are Missoula County, where the claim arose, or Lewis and Clark County. The University moved for change of venue to Lewis and Clark County, a proper venue under the statute. We hold that the District Court did not err in granting the University’s motion.
AFFIRMED.
JUSTICES HARRISON, HUNT, TRIEWEILER and WEBER.
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JUSTICE WEBER
delivered the Opinion of the Court.
This is an appeal from an order of the First Judicial District Court, Lewis and Clark County, denying appellant’s motion to suppress evidence seized in a warrantless search. We affirm.
The issues on appeal are:
1. Did the District Court err in denying McCarthy’s motion to suppress evidence due to an illegal warrantless search of a vehicle and a jacket in that vehicle?
2. Did the District Court err by refusing to suppress evidence found upon McCarthy’s person at the time of his booking because such evidence was fruit of the poisonous tree?
Daniel R. McCarthy (McCarthy), Shannon Hiatt (Hiatt), and Leslie Eddards (Eddards), were involved in a one-vehicle accident on July 5, 1991 on the Stemple Pass road in Lewis and Clark County. McCarthy and Hiatt were passengers in the car driven by Eddards. Montana Highway Patrol Officer Scott Swingley arrived at the scene and found the automobile in a ditch with its engine running and Hiatt severely injured.
Swingley suspected that the driver, Eddards, was intoxicated and administered a breathalizer test. The test results showed .175 blood alcohol content. Swingley arrested Eddards on a DUI charge, handcuffed him and placed him in the rear seat of the police car.
Swingley then read McCarthy his rights and asked McCarthy if there was anything illegal in the car, upon which McCarthy said ‘You know about the pot pipe?” Both McCarthy and Swingley then approached the car at which point McCarthy began searching from the passenger side for the pipe which he stated was located around the car’s gearshift. He could not find it.
Swingley went to the driver’s side and saw a crumpled jacket in the back seat with a clear plastic baggie protruding from the pocket. He reached into the jacket, pulled out the baggie and determined the green leafy substance might be marijuana. He replaced the baggie in the pocket and asked McCarthy who the jacket belonged to. McCarthy said it was his, upon which Swingley pulled the baggie from the pocket.
Swingley arrested McCarthy and transported him to the county jail in Helena where jail personnel discovered a small baggie in McCarthy’s right front pant’s pocket. The baggie contained LSD. McCarthy was charged with felony possession of dangerous drugs.
On August 22, 1991, McCarthy pled not guilty, and on September 10, 1991, filed a motion to suppress evidence. A hearing was held on October 24, 1991. The District Court denied McCarthy’s motion to suppress on December 10, 1991. McCarthy entered an Alford plea of guilty on February 6,1992, and received a two year deferred sentence on the felony count. McCarthy reserved his right to appeal the denial of his motion to suppress at the time he pled guilty. This appeal followed.
I
Did the District Court err in denying McCarthy’s motion to suppress evidence due to an illegal warrantless search of a vehicle and a jacket in that vehicle?
McCarthy argues that as a passenger in Eddards’ car he had a reasonable expectation of privacy in both the car and his jacket. McCarthy contends that he is protected against unreasonable searches by the Fourth Amendment of the United States Constitution and Article II, Section 11 of the Montana Constitution. McCarthy contends that warrantless searches are per se unreasonable and that the exception to the rule requires probable cause which did not exist here.
The State argues that Officer Swingley had probable cause to search McCarthy’s jacket and such search was valid under the “automobile exception” to the Fourth Amendment’s warrant requirement. The State further argues that it was permitted to search both the automobile and McCarthy’s jacket as a search incident to Eddards’ arrest for DUI.
An exception to the warrant requirement is the “automobile exception,” which requires the existence of probable cause to search and the presence of exigent circumstances, that is, that it was not practicable under the circumstances to obtain a warrant. State v. Allen (1992), [256 Mont. 47], 844 P.2d 105, 49 St.Rep. 1130, 1131. We first address McCarthy’s claim concerning the automobile itself.
McCarthy “bears the burden of proving not only that the search .... was illegal, but also that he had a legitimate expectation of privacy” in the automobile. Rawlings v. Kentucky (1980), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641. A person is protected from search and seizure only if it is reasonable to expect privacy under the surrounding circumstances. City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471. McCarthy offered no reasons nor foundation for his claim of privacy in the auto. The car was on a public highway was involved in a DUI and belonged to the father of the driver. Under these circumstances, we conclude that it was not reasonable for McCarthy to have any expectation of privacy in the auto itself, nor has he offered proof of any.
However, under certain circumstances, McCarthy could have had a different expectation of privacy in his jacket which was found in the car. Since McCarthy has claimed ownership of the article seized, the jacket, we review the circumstances of this case to see if police had authority to make a warrantless search of McCarthy’s jacket. See, W. Ringel, Searches & Seizures, Arrests & Confessions, § 11.7, pp. 1156-57, (1992).
In its conclusions of law, the District Court determined that, under the automobile exception, Officer Swingley had probable cause to search the car including McCarthy’s jacket after being told that there was a pot pipe in the car. Because the District Cotut determined that Officer Swingley had probable cause, it denied McCarthy’s motion to suppress the evidence. We review conclusions of law by the District Court as to whether the court’s interpretation of law was correct. Steer Inc. v. Dept, of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
Warrantless searches are per se unreasonable under the Fourth Amendment of the United States Constitution. Katz v. United States (1967), 389 U.S. 347,88 S.Ct. 507,19 L.Ed.2d 576. Both federal and state law acknowledge certain specific exceptions to the need for a warrant. California v. Acevedo (1991), _U.S._, 111 S.Ct. 1982, 114 L.Ed.2d 619; State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708. One of those exceptions is known as the automobile exception. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The automobile exception has been adopted by this Court in State v. Speilmann (1973), 163 Mont. 199, 516 P.2d 617.
The history of the automobile exception to the prohibition against warrantless searches has been long and varied. The exception was initially recognized as an attempt to enable authorities to stop the transport of illegal liquor during the Prohibition Era. E. Wedlock, Car 54 — How Dare You!: Toward a Unified Theory of Warrantless Automobile Searches, 75 Marquette Law Review 79 (1991). Since that time the exception has been broadened but remains clearly delineated by specific parameters, particularly in Montana.
In the 1988 case of Evjen this Court concluded that an automobile may be searched by police without a warrant where there is probable cause to believe the automobile’s contents offend against the law. Evjen, 234 Mont. at 520, 765 P.2d at 710. In that case the Court pointed out that the resolution of the case did not depend upon whether the officers had made an actual arrest, but upon whether the officers had probable cause to search the motor vehicle without a warrant pursuant to the “probable cause exception.” Evjen, 234 Mont. at 519, 765 P.2d at 711. In Evjen the Court determined that the officer had specific information from a reliable informant that she had been in the pickup, saw drugs in the pickup and described three persons who had arrived in the truck. The information given by the informant was confirmed when three persons did approach the truck. The Evjen Court concluded there was probable cause to search the truck, stating:
There is no question that Officer Phillips had probable cause to search the truck at that time. The alternatives were to hold the truck until a magistrate or judge could issue a search warrant, or allow the three persons to get into their truck and drive away with the contraband evidence. Because the officer had probable cause to search the vehicle, the search was not unreasonable under the Fourth Amendment, even though an actual arrest of the defendant had not been made.
Evjen, 234 Mont. at 520, 765 P.2d at 711.
In the 1992 case of Allen, we quoted from the U.S. Supreme Court case of California v. Acevedo (1991), _U.S._, 111 S.Ct. 1982, 114 L.Ed.2d 619. In Allen, we agreed with the Acevedo analysis of closed containers found during an automobile search:
We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in [Arkansas v.] Sanders, [442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235],
Allen, [256 Mont. 47], 844 P.2d at 110; citing Acevedo, 111 S.Ct. at 1986. We concluded in Allen, as we do here, that the police may search without a warrant if their search is supported by probable cause. Allen, [256 Mont. 47], 844 P.2d at 110. That search includes any closed containers found in the automobile.
Here Officer Swingley had come to the scene of an automobile accident in which a passenger had been seriously injured. He arrested the driver of the vehicle on a charge of DUI. Officer Swingley was then informed by defendant that there was a pot pipe in the car and defendant helped Officer Swingley look for the pot pipe. In the course of that search, the officer observed a plainly visible baggie protruding from the jacket. Because the pot pipe was not found in the gear shift area in the car, it was reasonable to assume that it could be in the jacket; and in addition, the baggie suggested the possibility of the presence of marijuana. Applying the standards of Evjen and Allen, we conclude Officer Swingley had probable cause to search the vehicle without a warrant; therefore, Officer Swingley could search McCarthy’s jacket as well as any other container located within the vehicle.
McCarthy relies on a Supreme Court case to argue that the police could not search his jacket without a warrant. Contrary to McCarthy’s arguments, the U.S. Supreme Court has expressly overruled Robbins v. California (1981), 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, upon which he relies so heavily. See United States v. Ross (1982), 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. The Robbins reasoning states that a container in a vehicle must clearly announce its contents. Robbins, 453 U.S. at 427-28, 101 S.Ct. at 2846.
The second consideration concerning a warrantless search is exigent circumstances which are those circumstances where it is not practicable to secure a warrant. Allen, [256 Mont. 47], 844 P.2d at 109. When the automobile exception was first created, exigent circumstances meant that the vehicle was movable, as in Allen, thus endangering preservation of the fruits of a crime. Today, certain authorities suggest a “totality of the circumstances” approach to the appropriateness of a warrantless search. J. Hall, Search and Seizure, § 14:3 (1992). We therefore conclude that exigent circumstances should be considered on the “totality of circumstances.” We have stated that although still jealously limited in Montana, exigent circumstances are not absolutely limited. State v. Dess (1982), 201 Mont. 456, 655 P.2d 149. Police may need to consider not just the mobility of the vehicle, but the possible destruction of evidence, the safety of police officers, emergency situations, and the possible gravity of the crime committed. J. Hall, Search and Seizure, § 14:3 et seq. Also, see Allen.
In Allen, we found exigent circumstances to be the need to ensure the safety of police at the roadblock due to Allen’s dangerous reputation, the mobility of the vehicle, and the possible insufficient time to obtain a warrant.
Here, Officer Swingley had one intoxicated person in custody, another one had indicated a pot pipe was somewhere in the car and a third person had been seriously injured and life-flighted from the scene. Unlike in Allen, the car here was not moveable. But the alleged pot pipe certainly was; and not being in custody, McCarthy could easily have removed it as well as any other evidence associated with the pot pipe or the accident in general. We take judicial notice that it is approximately one hour from the scene of the accident to Helena. Therefore, both the jail and appropriate authority for obtaining a warrant were an hour away. Had Officer Swingley taken the intoxicated driver to jail and then gone to get a warrant, McCarthy would have been left at the scene; the evidence which Swingley suspected may be present could have been removed or destroyed by McCarthy unless the car had already been towed. We conclude it was impracticable for Swingley to stay at the scene until the car was towed. Therefore, the possibility existed that McCarthy, or the real owner of the automobile, could have removed evidence easily after officers left the scene. Further, the car was on a public road, anyone could have removed evidence from the car had officers left before it was towed.
We conclude that possible destruction of evidence and the emergency nature of the situation constitute exigent circumstances under the facts of this case.
Because the District Court correctly determined that the search performed by authorities in this case was appropriate under the automobile exception, we do not find it necessary to consider the appropriateness of a search incident to an arrest under the facts of this case as the State argues.
We finally conclude that taking all the facts of this case into consideration, both probable cause and exigent circumstances existed for a warrantless search under the automobile exception. We hold that the District Court did not err in denying defendant’s motion to suppress the evidence on the basis of an illegal warrantless search.
II
Did the District Court err by refusing to suppress evidence found upon McCarthy’s person at the time of his booking because such evidence was fruit of the poisonous tree?
McCarthy argues that because the marijuana found in his jacket was illegally seized, his arrest was illegal and anything removed from his person during booking is fruit of the poisonous tree. City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471. Because we have determined that the search of the automobile and the jacket were appropriate under the automobile exception to prohibition against warrantless searches, there is no basis to apply the doctrine of the fruit of the poisonous tree. We hold that the District Court did not err in refusing to suppress such evidence.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and McDonough concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
This is an appeal from an order of the Ninth Judicial District Court, Glacier County, dismissing an action for equitable apportionment of a marital estate for lack of subject matter jurisdiction. We affirm.
Ramona Mae Wellman (Ramona) and Robert W. Wellman (Robert) were married in Cardston, Alberta, in November 1951 and lived for the duration of their marriage on the Blackfeet Reservation near Browning, Montana. Ramona is a member of the Blackfeet Tribe; Robert is not an Indian. They have six children, all born before 1960. The parties accumulated substantial real and personal property during their marriage, including approximately 4,000 acres of Indian trust land with legal title in the United States and beneficial ownership in Ramona.
In December 1979, Ramona filed a petition for dissolution in state district court, stating that the marriage was irretrievably broken. She did not ask the court to divide the marital assets. Robert responded in March 1980, seeking an equitable distribution of the real and personal property accumulated by the parties during their marriage or, if the property could not be equitably distributed, a monthly award for his support, care, and maintenance from the income produced from the property.
The court issued a final decree of dissolution on November 18, 1981, amended in December 1981 to state as a conclusion of law that the court had jurisdiction over the marital status. All other jurisdictional questions and all matters concerning support, maintenance, and equitable distribution of property were reserved for later determination.
A pre-trial conference on the reserved issues originally was set for January 20, 1982, but was vacated for the convenience of Robert’s counsel. The court, apparently on its own initiative, re-set the conference for October 17, 1984, but continued it so that Robert’s counsel could complete discovery. Discovery efforts continued through 1987, and trial eventually was set for June 5, 1990.
On May 16,1990, Ramona moved to dismiss on the grounds that the District Court lacked jurisdiction to apportion property and debts on the Blackfeet Reservation. On May 24, 1990, the court issued an order postponing the trial indefinitely; on May 29, after reviewing the file, it set the matter for trial on June 5, 1990, requesting briefs on the jurisdiction issue by June 4.
On June 5, Ramona’s lawyer told the court that she had not had an opportunity to read Robert’s brief. The court suggested that the parties produce their evidence on the merits of the dispute that day, while it took the matter of jurisdiction under advisement. At the close of the hearing, after Robert and Ramona had testified at length on the property they had accumulated during their marriage, the court announced that it would rule on the issue of jurisdiction before proceeding further with matters concerning the marital estate.
The District Court ultimately granted Ramona’s motion to dismiss, concluding that "this Court has no jurisdiction to adjudicate the disposition of the only significant asset of the parties, the Indian Trust Land.” Robert appealed.
The sole issue on appeal is whether a Montana district court has jurisdiction to adjudicate the disposition of Indian trust land in a marital dissolution action filed in that court by a member of the Blackfeet Tribe against her non-Indian husband.
Because the District Court ruled only on the issue of jurisdiction, Robert’s assertions of error regarding the contents and valuation of the marital estate are not properly before us. For purposes of reviewing the jurisdictional issue, however, we assume that the Indian trust land is the Wellmans’ only significant marital asset. Even if the Wellmans did have other assets at the time of the divorce, as Robert contends, the parties agree that the Indian trust land was their most substantial asset; therefore, the District Court could not have apportioned the marital estate without exercising jurisdiction over the trust land.
I
In contending that the District Court has subject matter jurisdiction to apportion the marital estate, Robert relies on the Blackfeet Tribal Law and Order Code, which provides that “all divorces must be consummated in accordance with the State Law of Montana.” Robert argues that with this provision the Blackfeet Tribe “expressly ceded jurisdiction relative to dissolutions to the Courts of Montana.” We disagree.
We held in 1973 that a similar provision enacted by the Assiniboine-Sioux Tribe in 1938 did cede jurisdiction to the state. Our decision was based on the evidence before us, which showed that the tribal court had granted no divorces in the intervening period and had itself interpreted the provision as ceding jurisdiction over divorce matters to the state of Montana. State ex rel. Iron Bear v. District Court (1973), 162 Mont. 335, 512 P.2d 1292. Here, the record indicates that the Blackfeet Tribal Court has consistently exercised jurisdiction over the dissolution of Blackfeet marriages. We conclude, therefore, that this provision does not cede jurisdiction to the state but merely governs the tribal court’s choice of law.
Our approach is consistent with the Ninth Circuit’s determination that a similar provision in the Northern Cheyenne Law and Order Code does not confer jurisdiction on Montana but instead incorporates Montana law as tribal law. Sanders v. Robinson (9th Cir. 1988), 864 F.2d 630, cert. denied, 490 U.S. 1110, 109 S.Ct 3165, 104 L.Ed.2d 1028 (1989). Like the case before us, Sanders involved a tribal member married to a non-Indian and marital residence on an Indian reservation. Unlike Ramona Wellman, however, the Indian spouse in Sanders filed an action for divorce in the tribal court. Her non-Indian husband challenged the tribal court’s jurisdiction in federal district court, and the district court granted summary judgment in favor of the tribal court. In affirming that decision, the Ninth Circuit held that in a divorce case involving an Indian “plaintiff’ and a non-Indian “defendant,” the tribal court has “at least concurrent” but not necessarily exclusive jurisdiction. 864 F.2d at 633.
Where an Indian tribe has asserted jurisdiction over marriage and divorce actions between two of its members, we have deferred to that assertion. In In re Marriage of Limpy (1981), 195 Mont. 314, 636 P.2d 266, we deferred to an advisory opinion of the Northern Cheyenne Appellate Court, holding that the Northern Cheyenne Tribal Court has exclusive jurisdiction over dissolution of marriage actions between members of the tribe residing on the reservation. Similarly, in State ex rel. Stewart v. District Court (1980), 187 Mont. 209, 609 P.2d 290, we determined that the Crow Tribal Code gives the Crow Tribal Court exclusive jurisdiction over dissolution of marriage actions between tribal members living on the reservation.
Here, the dissolution action was brought by a tribal member against her non-Indian husband. No precedent suggests that in such a case the Blackfeet Tribal Court has exclusive jurisdiction over the dissolution, or that exercise of concurrent jurisdiction by a state district court interferes with tribal self-government. The specific issue before us, however, is whether the District Court, having dissolved the Wellmans’ marriage, had subject matter jurisdiction to apportion their marital estate.
II
Indian tribes are self-governing political entities whose powers can be circumscribed only by Congress, as the United States Supreme Court made clear in United States v. Wheeler (1978), 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 313: “[U]ntil Congress acts, the tribes retain their existing sovereign powers.... Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.”
When Wheeler was decided, Congress already had authorized state governments to assume jurisdiction over civil causes of action to which Indians are parties and which arise on Indian reservations within their boundaries. Public Law 280 (P.L. 280), codified at 28 U.S.C. § 1360. Six states assumed jurisdiction under the express terms of the statute; other states, including Montana, could “assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” Pub. L. No. 280, § 7, 67 Stat. 588, 590 (1953). The 1968 Indian Civil Rights Act repealed § 7, however, and thereafter the consent of the enrolled Indians on the reservation, expressed as a majority vote of the adult Indians voting at a special election, was required before a state could assume jurisdiction over a civil action arising on a reservation and involving a tribal member. 25 U.S.C. § § 1322 and 1326.
With regard to the matter before us, it is undisputed that Montana has not assumed jurisdiction under RL. 280 and the Indian Civil Rights Act. Absent such an assumption of jurisdiction, civil jurisdiction over activities of non-Indians as well as Indians on reservation lands presumptively lies in the tribal court. Fisher v. District Court (1976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106. To overcome that presumption, a party seeking to bring such an action in state court must show that state jurisdiction is not preempted by federal statute or treaty and does not unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by those laws. White Mountain Apache v. Bracker (1980), 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672. We adopted the White Mountain Apache test in First v. State Dep’t of Social & Rehabilitation Servs. (1991), 247 Mont. 465, 471, 808 P.2d 467, 470.
In White Mountain Apache, the Supreme Court emphasized that traditional standards of preemption do not apply, for “the tradition of Indian sovereignty over the reservation must inform the determination whether the exercise of state authority has been pre-empted by operation of federal law.” 448 U.S. at 143, 100 S.Ct at 2583. Consequently, the Court required a “particularized inquiry into the nature of the state, federal, and tribal interests at stake,” to determine whether, “in the specific context, the exercise of state authority would violate federal law.” 448 U.S. at 145, 100 S.Ct at 2584.
In conducting that inquiry here, we will address the federal, tribal and state interests involved in an apportionment of the Indian trust land that constitutes the Wellmans’ only significant marital asset.
Ill
Indian trust property cannot be conveyed without the consent of the Secretary of the Interior. Tooahnippah v. Hickel (1970), 397 U.S. 598, 609, 90 S.Ct. 1316, 1323, 25 L.Ed.2d 600, 609. Further, the Quiet Title Act, 28 U.S.C. § 2409, gives the United States sovereign immunity as to Indian trust land; therefore, actions to adjudicate title to trust land are barred in state and federal courts. Ducheneaux v. Secretary of Interior (8th Cir. 1988), 837 F.2d 340, 342-343, cert. denied, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988). Thus, an assertion of state court jurisdiction to apportion a marital estate consisting primarily of Indian trust land appears on its face to be in conflict with the federal government’s direct interest in Indian trust property.
Robert attempts to circumvent this barrier by arguing that even though the District Court has no authority to transfer title to the trust land to a non-Indian, it has the power to value the marital estate and the obligation to apportion it equitably, either by awarding him a monetary judgment equal to his equitable share of the estate or by ordering the land to be sold to other tribal members and the proceeds divided. We disagree.
It is true that § 40-4-202(1), MCA, provides, in pertinent part, that in a proceeding for dissolution of marriage the court “shall ... equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both” (emphasis added). We note that here, neither party holds legal title to the Indian trust land. In any event, however, the strong federal and tribal interests in trust property mandate our conclusion that § 40-4-202(1), MCA, cannot be construed to require or allow adjudication of Indian trust land by a state district court. As the Blackfeet Tribal Law and Order Code provides for consummation of divorce in accordance with Montana law, we presume that the Blackfeet Tribal Court will equitably apportion the Wellmans’ marital assets as prescribed by § 40-4-202(1), MCA.
Any state action that affects ownership of Indian trust land is closely circumscribed by 28 U.S.C. § 1360(b), even where state jurisdiction has been acquired pursuant to RL. 280. Section 1360(b) provides that:
Nothing in this section [P.L. 280] shall authorize the alienation, encumbrance, or taxation of any real or personal property ... belonging to any Indian or any Indian tribe ... that is held in trust by the United States;... or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.
On its face, this statute precludes state jurisdiction to adjudicate any interest in Indian trust land. In light of this statutory circumscription even where the state has assumed jurisdiction, we infer the complete absence of Congressional intent to authorize or allow a state that has not assumed jurisdiction to adjudicate Indian trust land in any way whatsoever. See Sheppard v. Sheppard (Idaho 1982), 655 P.2d 895, 921 (Bistline, J., dissenting).
Robert argues that Sheppard authorizes state jurisdiction over Indian trust land in a marital estate. He cites its conclusion that in a dissolution involving an enrolled tribal member and a non-Indian, the Indian spouse must compensate the non-Indian spouse for “his or her share of the community contributions that have gone into property that is held in trust or subject to a restraint on alienation by the federal government.” Sheppard, 655 P.2d at 914.
The majority in Sheppard affirmed a district court order requiring the Indian wife to pay the non-Indian husband a substantial sum to offset the bulk of the real and personal property, including Indian trust land, awarded to the wife. The majority pointed out that the district court had done nothing to affect title to the property, which remained in the wife’s name, and that it had determined the size of the monetary award by the amount of community funds used to pay for the property. Under these circumstances, the Idaho court held, the district court’s action did not infringe on the authority of the federal government or on tribal sovereignty. Sheppard, 655 P.2d at 914-15.
We distinguish Sheppard on several grounds. First, Idaho, unlike Montana, assumed jurisdiction over enforcement of certain state laws and regulations in Indian country within the state, including laws and regulations concerning domestic relations, pursuant to P.L. 280. Sheppard, 655 P.2d at 907 (citing Idaho Code § 67-5101 (1963)). Second, Idaho is a community property state; Montana is not.
Finally, and more importantly, the decision of the Idaho court does not support Robert’s position in the case before us. In Sheppard, neither the trial court nor the Idaho Supreme Court exercised jurisdiction over the Indian trust property by bringing the property before it for valuation. Instead, the Idaho court merely ordered the Indian spouse to reimburse the non-Indian spouse for his share of the community funds used to purchase the land.
Here, we are urged to assert state court jurisdiction over Indian trust land by figuratively bringing it into state court for valuation prior to an ordered sale and division of proceeds or a monetary award equal to Robert’s equitable share of the value of the land. Based on our discussion of 28 U.S.C. § 1360(b), above, we conclude that any of these actions would result in a prohibited adjudication of interests in Indian trust land. See Sheppard, 655 P.2d at 923 (Bistline, J., dissenting).
Robert also relies on Conroy v. Conroy (8th Cir. 1978), 575 F.2d 175, suggesting that it authorizes the District Court to order the “sale of beneficial title in the said Trust lands to permissible beneficiaries ... e.g., other Blackfeet Indians.” Robert misreads Conroy.
Conroy involved a divorce action between two members of the Oglala Sioux Tribe, who had accumulated, during their marriage, 1,700 acres of land held in trust by the United States in the name of the husband. The divorce action was filed in the Pine Ridge Indian Reservation Tribal Court, which granted the divorce and awarded the wife roughly half the land and cattle accumulated through the parties’ joint efforts. The Eighth Circuit, affirming, upheld tribal court jurisdiction to divide the trust land. 575 F.2d at 183. Thus, Conroy provides authority for a tribal court to apportion beneficial interests in trust land in conjunction with a dissolution action between tribal members. It has no bearing on the issue of state court jurisdiction over Indian trust land.
Notwithstanding Robert’s failure to present authority requiring us to reverse the District Court’s decision, we conclude by returning briefly to the White Mountain Apache test, which required us to conduct “a particularized inquiry into the nature of the state, federal, and tribal interests at stake” in determining whether, “in the specific context, the exercise of state authority would violate federal law.” White Mountain Apache, 448 U.S. at 145, 100 S.Ct. at 2584.
There is no question but that the United States has a significant interest in matters relating to Indian tribes and reservations. Apart from its direct interest as legal owner of Indian trust land, the United States has a strong goal of encouraging tribal self-government. Numerous federal statutes express this goal. See New Mexico v. Mescalero Apache Tribe (1983), 462 U.S. 324, 335, 103 S.Ct. 2378, 2387, 76 L.Ed.2d 611, 621, citing the Indian Reorganization Act of 1934, the Indian Civil Rights Act of 1968, the Indian Self-Determination and Education Assistance Act of 1973, and the Indian Financing Act of 1974.
Nor can the interest of the Blackfeet Tribe in this matter be overstated. In general, of course, Indian tribes retain the power to regulate the domestic relations of their members, by virtue of their status as sovereign entities; in addition, a tribal court specifically has jurisdiction to adjudicate disputes over Indian trust land. Conroy, 575 F.2d at 181-182. Here, the Blackfeet Tribal Court has, and exercises, concurrent jurisdiction over the dissolution of Blackfeet tribal members’ marriages, while the Blackfeet Tribe has a strong interest in safeguarding its members’ beneficial interest in trust lands.
Unless the state interests at stake are sufficient to justify the assertion of state authority, state jurisdiction that is inconsistent or interferes with federal and tribal interests is preempted by operation of federal law. Mescalero Apache, 462 U.S. at 334, 103 S.Ct. at 2386. It is true that the State of Montana has an interest in ensuring the existence of a forum in which marital property located within its borders may be apportioned upon a dissolution of marriage. In the usual case, the state achieves this goal by providing access to its courts. Here, however, the state’s interest is met by the availability of an alternative forum in the Blackfeet Tribal Court. In short, the state’s interest in the property and proceedings at issue is inconsequential compared with the federal and tribal interests at stake.
We hold that, under the facts of this case, the District Court did not err in concluding that it lacked jurisdiction to adjudicate the disposition of the Indian trust land that was the parties’ only significant marital asset.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, HUNT, HARRISON, McDONOUGH and WEBER concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
Appellant Leonard Vainio, acting as personal representative of Helen Marie Vainio’s estate, appeals the decision of the Second Judicial District Court, Silver Bow County, affirming the order of the Montana Human Rights Commission (HRC) finding that Helen Vainio’s employee/supervisor committed sexual harassment against respondent Candi Brookshire, and the HRC’s damage award of $20,000 to Brookshire for emotional distress.
We affirm.
Appellant presented 11 issues for this Court’s consideration. We rephrase and consolidate the issues as follows:
1. Does § 49-2-506(l)(b), MCA, of the Montana Human Rights Act violate the Montana Constitution because the Act’s procedural provisions do not allow for a jury trial?
2. Does § 49-2-506(l)(b), MCA, constitute an unlawful delegation of judicial and legislative powers?
3. Did the District Court err in finding that Helen Vainio was properly notified of the complaint?
4. Did the District Court err in finding Helen Vainio liable on the basis of respondeat superior?
5. Did the District Court err in upholding the HRC’s ruling striking part of appellant’s witnesses and exhibits?
6. Did the District Court err in holding that the Workers’ Compensation Act does not provide a remedy for sexual harassment?
7. Did the District Court err in affirming the HRC’s award of $20,000 in emotional distress damages?
8. Did the District Court err in affirming the HRC’s decision not to allow the HRC’s investigative report into evidence?
On September 2,1988, Brookshire filed a complaint with the HRC against Harvey Phillips and the Silver Slipper, a lounge and casino located in Butte. On September 19, 1988, Brookshire amended her complaint, alleging that she was sexually harassed by Phillips during her employment at the Silver Slipper prior to being fired on June 2, 1988. During the time of the sexual harassment, the Silver Slipper Bar was owned by Helen Vainio, who is now deceased. The Silver Slipper has since been sold to Silver Slipper, Inc.
On September 5, 1989, the matter was certified for hearing and Phillips, Brookshire, and Silver Slipper, Inc., were all properly served with notice. On April 12, 1990, a contested case hearing was held in Butte. In her findings of fact, and conclusions of law, and order, the hearing examiner concluded that Phillips unlawfully sexually harassed Brookshire and that Helena Vainio, as owner of the Silver Slipper, was liable for the harassment. Silver Slipper, Inc., was found not liable. Appellant filed exceptions with the HRC to the hearing examiner’s findings. On March 29, 1991, the HRC issued its order affirming the hearing examiner’s order. Appellant appealed the HRC’s opinion and order to the District Court. A hearing was held on December 30, 1991, and on May 12, 1992, the District Court issued its order affirming the HRC. Appellant appeals from the District Court order.
Appellant did not file a transcript of the contested case hearing for this Court to review, but did provide this Court with a transcript of the District Court’s hearing.
I.
Does § 49-2-506(l)(b), MCA, of the Montana Human Rights Act violate the Montana Constitution because the Act’s procedural provisions do not allow for a jury trial?
Appellant contends § 49-2-506(l)(b), MCA, unconstitutionally denied Helena Vainio’s right to a jury trial. A legislature’s enactment is presumed constitutional. Ingraham v. Champion International (1990), 243 Mont. 42, 47, 793 P.2d 769, 772. A party challenging the constitutionality of a statute has the burden of proving it unconstitutional beyond a reasonable doubt. Romero v. J & J Tire (1989), 238 Mont. 146, 149, 777 P.2d 292, 294.
We have held that the Montana Human Rights Act does not unconstitutionally deny persons the right to a trial by jury. Romero, 111 P.2d at 296. Prior to enactment of the Civil Rights Act of 1991, which creates a statutory right to a trial by jury under Title VII where there is a claim for compensatory or punitive damages, there was no right to trial by jury under Title VII. Slack v. Havens (9th Cir. 1975), 522 F.2d 1091, 1094. In Romero, we stated that legislative bodies may assign adjudication of statutory rights to administrative agencies in which a jury trial would be incompatible without violating the Seventh Amendment. Romero, 111 P.2d at 296. Through its enforcement of the Human Rights Act, the HRC protects the State’s interest in eliminating discrimination. Appellant failed to prove beyond a reasonable doubt that the administrative contested case procedures under the Human Rights Act unconstitutionally denied Helen Vainio’s right to a jury trial. We hold that Helen Vainio was not unconstitutionally denied a jury trial.
II.
Does § 49-2-506(l)(b), MCA, constitute an unlawful delegation of judicial and legislative powers?
Appellant asserts that § 49-2-506(l)(b), MCA, which allows the HRC to award damages in discrimination cases, constitutes an unconstitutional delegation of authority by the legislature. Appellant asserts that the HRC has “unbridled authority” to award damages. Section 49-2-506(l)(b), MCA, grants the HRC the discretion to award “reasonable” damages. Parties to contested cases before the HRC have the right to judicial review of all final HRC orders pursuant to § 2-4-702, MCA. The HRC damage awards must be reasonable and they are reviewable in district court under an abuse of discretion standard. The HRC does not have unbridled authority to award damages. We hold that § 49-2-506(l)(b), MCA, does not constitute an unlawful delegation of judicial and legislative powers.
III.
Did the District Court err in finding that Helen Vainio was a party to the action?
Appellant asserts that Brookshire failed to name Helen Vainio in her complaint to the HRC as required by § 49-2-501(1), MCA, and 24.9.209(2), ARM. Section 49-2-501(1), MCA, states the following requirements for bringing an action against a party:
A complaint may be filed by or on behalf of any person claiming to be aggrieved by any discriminatory practice prohibited by this chapter. The complaint must be in the form of a written, verified complaint stating the name and address of the person ... alleged to have engaged in the discriminatory practice and the particulars of the alleged discriminatory practice.
The complaint listed Phillips and the Silver Slipper as respondents and stated the proper address and telephone number of the Silver Slipper. The complaint alleged unlawful discriminatory practices occurring throughout Brookshire’s employment at the Silver Slipper. There is no requirement that a complaint filed under this statute name the individual owner of a business.
Appellant also contends that Helen Vainio was not promptly served with Brookshire’s harassment complaint. Section 49-2-504, MCA, requires the HRC to informally investigate discrimination complaints filed with the Commission. Helen Vainio was aware of Brookshire’s complaint three months after Brookshire was fired. Appellant has not provided this Court with additional evidence to show otherwise. Helen Vainio was properly served in this instance. We hold that the District Court did not err in finding that Helen Vainio was properly notified of Brookshire’s complaint and was a party to this action.
IV.
Did the District Court err in finding Helen Vainio liable on the basis of respondeat superior?
Section 49-2-303(l)(a), MCA, provides that it is unlawful for an employer to discriminate based on sex. Unlike the comparable federal law, Title VII of the Civil Rights Act of 1964, the Montana Human Rights Act does not include an agent of the employer in the definition of “employment.” Section 49-2-101(8), MCA; 42 U.S.C. § 2000e(b) (1964). In employment discrimination proceedings before the HRC, only the employer is potentially liable for discriminatory acts of its agents. The Equal Employment Opportunity Commission has exclusive jurisdiction under Title VII over any claim against a manager. Under the theory of respondeat superior, employers are liable for the intentional sexual harassment in which supervisory personnel engage in the course of their employment. E.E.O.C. v. Hacienda Hotel (9th Cir. 1989), 881 F.2d 1504, 1515. As a result of respondeat superior liability, a sexual harassment complaint need not specify acts committed personally by the employer. All that is needed to make Helen Vainio subject to the administrative proceeding is for Brookshire to allege that Phillips, an agent of Helen Vainio, committed unlawful sexual discrimination. We hold that the District Court did not err in concluding that Helen Vainio was liable on the basis of respondeat superior.
V.
Did the District Court err in upholding the HRC’s ruling striking part of appellant’s witnesses and exhibits?
Administrative Rule 24.9.317(4), permits the hearing examiner or HRC to limit the prosecution or defense of a contested case if a party fails to comply or engage in discovery. This Court has held that the imposition of sanctions for failure to comply with discovery is regarded with favor. Huffine v. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77, 78. An appropriate sanction is the limitation of proof to matters disclosed through discovery. Vehrs v. Piquette (1984), 210 Mont. 386, 393, 684 P.2d 476, 480. Any last minute tender of relevant documents will not cure the discovery problem. Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 728 P.2d 430. We will not overturn a trier of fact decision as to the determination of an appropriate sanction absent an abuse of discretion. Dassori, 728 P.2d at 432.
According to the minute entry of the hearing examiner, during a prehearing conference on March 21 and 22, 1990, the attorneys in this case were ordered to exchange their list of witnesses, contentions, and copies of exhibits, and revise a final prehearing order. Previous to this prehearing conference, appellant’s counsel failed to participate in the preparation of the prehearing memorandum or file any separate addendum for the March 21, 1990, conference. The conference was continued to the following day to give appellant’s counsel the opportunity to prepare his additions and discuss them with Brook-shire’s counsel. Brookshire’s counsel did not receive appellant’s wit ness or exhibit lists until April 9, 1990, and did not receive copies of appellant’s proposed exhibits until April 11,1990. Appellant’s counsel hand-delivered his documents to the HRC offices on Monday, April 9, 1990, at 5:05 p.m. Based on appellant’s failure to disclose the proper documents and witnesses, the hearing examiner struck the items from the final prehearing order. We hold that the District Court did not err in upholding the HRC’s ruling striking part of appellant’s defense.
VI.
Did the District Court err in holding that the Workers’ Compensation Act does not provide a remedy for sexual harassment?
Appellant argues that Brookshire’s exclusive remedy for damages for emotional pain and suffering is under the Workers’ Compensation Act, and not under the Montana Human Rights Act. The Workers’ Compensation Act provides the exclusive remedy for physical injuries on the job. Section 39-71-119, MCA, defines injuries covered by the Act. The statute provides that personal injuries covered by the Act include “internal or external physical harm to the body ... caused by an accident.” Section 39-71-119(l)(a) and (2), MCA. Brookshire’s complaint did not allege internal or external physical injuries to her body. Sexual harassment is an intentional act not arising from an accident. We hold that the Workers’ Compensation Act is not an exclusive remedy for Brookshire’s claim.
VIL
Did the District Court err in affirming the HRC’s award of $20,000 in emotional distress damages?
Section 49-2-506(l)(b), MCA, delineates the forms of relief which the HRC may order if it finds that a person has engaged in unlawful discriminatory practices. The order issued by the HRC may:
[R]equire any reasonable measure to correct the discriminatory practice and to rectify any harm, pecuniary or otherwise, to the person discriminated against.... [Emphasis added.]
Section 49-2-506(b)(l), MCA.
Appellant contends that the HRC’s award of $20,000 for emotional distress was clearly erroneous. We do not agree. The District Court found that Phillips’s conduct toward Brookshire included, among other things, brushing his body against her buttocks, putting his hand up her skirt, grabbing her breasts, and requesting Brookshire to have sex with him. The statute provides that the HRC may order any reasonable measure to correct or rectify any harm. This includes emotional distress damages. The HRC’s award of $20,000 in emotional distress damages was not clearly erroneous. We hold that the District Court did not err in upholding the HRC’s award of $20,000 in emotional distress damages.
VIII.
Did the District Court err in affirming the HRC’s decision not to allow the HRC’s investigative report into evidence?
Finally, appellant contends that there was evidence contained in the HRC’s investigative file which would establish that Helen Vainio was not made a party to the action. As we stated previously, Helen Vainio was properly noticed and is a party to this action.
We affirm the decision of the District Court.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HARRISON, McDONOUGH and WEBER concur.
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MR. JUSTICE SMITH
delivered the opinion of the court. In his original complaint, the plaintiff attempted to state three separate causes of. action, the first of which alleged that on or about the nineteenth day of June, 1908, he entered into an agreement with the defendants, whereby they leased and let to him a certain piece of ground under and within the Lexington quartz lode mining claim, upon the following terms: He was to clean out an old drift, retimber the same, extend it twenty-five feet or more, if necessary, and cut an upraise to a point where ore would be encountered. After striking ore, he was to have all he could take out for the succeeding thirty days. It was further agreed “that at the termination of thirty days after plaintiff had cut the ore, if defendants desired to discontinue the lease they could do so by paying him day’s wages for the work already performed by him.” He alleged that he began work on the nineteenth day of June, 1908, cleaned out and retimbered the drift, and, after running an upraise for about fifteen feet, eut the lead on August 7, 1908, and encountered ore; up to the thirteenth day of August, 1908, he knocked down forty tons of ore, whereupon the defendants, without cause, ousted him from the premises, refused to allow‘d him to go on with the work, and “kept and shipped all the ore, and refused to settle with him for the same. ’ ’ He demanded general damages in the sum of $1,000 for breach of the agreement of the lease. The second cause of action was based upon the allegation “that, by reason of the acts of the defendants in ousting and ejecting plaintiff, they have reaped the benefit of plaintiff’s work in cleaning out the drift and retimbering the same, extending the drift and cutting the upraise, and the work and labor in prosecuting said work is reasonably worth the sum of $448.” By the third cause of action, he sought to recover the sum of $468, “by reason of the wrongful retention by defendants of said forty tons of ore and their refusal to pay plaintiff therefor under the terms and agreement of said lease.” The answer was in effect a general denial.
At the trial, before the court sitting with a jury, the plaintiff testified that Mr. Frank, who was in charge of the mine for the defendants, told him orally that if he would do the work, as above indicated, he could have the ore, after striking the same, for thirty days without royalty. He said: “Mr. Frank told me, ‘Now, if you strike that ore, we will give you, after doing this work, thirty days clear of royalty for doing this work.’ I was never allowed to take that ore out there. I never got any of the benefits of that ore. Any point I struck ore, I had thirty days to take it out. ’ ’ After testifying, in effect, that Mr. Frank ordered him out of the mine, and that he had performed all the dead work mentioned in the contract, he continued: “The work and labor we performed in cleaning out the drift, retimbering the same, extending the drift and cutting the upraise, was reasonably worth $448. I went to Mr. Frank once and asked him, ‘What are you going to do about it?’ and he said, ‘Nothing.’ I said that I had forty or forty-five tons of ore there, and, ‘What are you going to do about it?’ and he said, ‘What is your costs for doing the work?’ and I told him $448. ‘Well,’ he said, ‘I’ll pay you wages for that work done, and I want to keep that ore,’ and I said: ‘No, you don’t keep that ore.’ The arrangement we had there was that he was to pay me day’s wages, provided my lease was canceled after thirty days; and I told him the wages was $448.” In cross-examination of the plaintiff, the defendants produced a cheek for $120.91, the net value of the ore retained by them; but Ivey declared that the check had not been tendered to him.
When plaintiff rested his case, the defendants moved for a nonsuit. Thereupon plaintiff asked and was granted leave to file an amended complaint, over the following objection of the defendants, viz.: “We object to that, for the reason that they have made out their case and introduced their testimony upon each cause of action, and at this time it is improper to attempt to amend the complaint by consolidating the causes of action. We object to the filing of the amended complaint, on the ground that it changes the issues raised in the second and third causes of action set out in the original complaint; also on the ground that it changes the nature of said second and third causes of action. ’ ’ The amended complaint set forth the whole transaction in one cause of action. Plaintiff was again called, and testified that Frank told him that .if he (Frank) stopped the work before he (Ivey) could ship any ore he would pay for all labor performed. The court then overruled the motion for a nonsuit. The record then goes on to recite: “The foregoing contains all the testimony and proceedings necessary or material to the consideration of the questions raised by the exceptions therein saved. Thereupon the defendants introduced testimony, and after the settlement of the instructions, the case was argued to the jury by respective counsel, and the jury returned a verdict in favor of the plaintiff and against the defendants for the sum of $555.91.” Defendants appeal from a judgment on the verdict and from an order refusing to grant a new trial.
1. It is contended that the so-called lease, not being in writing, was void under the statute of frauds. This position is taken on the authority of Clark v. Wall, 32 Mont. 219, 79 Pac. 1052, and the point seems to be conceded by counsel for the respondent. But it is not necessary to determine whether or not the facts in this case bring it within the rule laid down in Clark v. Wall. After experiencing some difficulty in establishing a cause of action, other than that relating to the forty tons of ore, the plaintiff practically abandoned the cause of action for breach of the so-called lease agreement in itself by testifying that Mr. Frank reserved the right to terminate the agreement by paying day’s wages for the dead work. The court is presumed to have correctly charged the jury that plaintiff could not recover for failure of the defendants to allow him to continue the work of getting out ore. This leaves for our consideration but two items of damages, to-wit, one for failure to pay the amount claimed for doing the dead work, and another for either converting the ore already knocked down, or failing to pay for it, as upon an implied contract. The verdict shows on its face that the jury allowed $120.91 for the ore, the amount proven by the defendants. This leaves $435 for work and labor performed before the ore was encountered. Plaintiff testified that this work was reasonably worth $448. The jury, for some reason, deducted $13 from the amount.
2. It is contended that the amended complaint contains three causes of action which are not separately stated; but this point was not advanced in the court below.
3. But it is said that the two last causes of action are improperly joined, for the reason that the second claim, or cause of action, is founded in tort, and the third is founded in contract. It was the privilege of the plaintiff, however, to waive the tort and sue upon an implied contract to pay for the ore which confessedly belonged to him. This he evidently attempted to do, and, as the cause has been tried on its merits, we shall not too closely scrutinize his pleading. It was the duty of the court below at every stage of the action to disregard any error or defect in the pleadings or proceedings which did not affect the substantial rights of the parties, and no judgment should be reversed or affected by reason of such error or defect. (Rev. Codes, see. 6593.) The record is in a very unsatisfactory condition; but we think, in view of the fact that the jury gave credit to the plaintiff’s testimony, that substantial justice has been done.
The judgment and order are affirmed.
Affirmed.
Mr. Chief Justice Brantly and Mr. Justice Holloway concur.
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29
] |
MR. JUSTICE SMITH
delivered the opinion of the court.
Defendant appeals from a judgment of conviction of grand larceny, and from an order denying his motion for a new trial.
1. The charging part of the information reads as follows: ‘ ‘ That on or about the 28th day of February, 1908, the defendant Sam A. Hall, then and there having in his possession, custody and control, as bailee and agent of Maggie Stephens, certain personal property, to-wit, money, in amount and of the value of five hundred and sixty-four and 50/100 dollars ($564.50) lawful money of the United States, did willfully, unlawfully, knowingly, fraudulently, intentionally and feloniously appropriate said money to his own use, with intent in him the said Sam A. Hall, then and there to deprive and defraud the true owner, the said Maggie Stephens, of her property and of the use and benefit thereof.” It is contended that the county attorney has failed to set forth by direct averment that Maggie Stephens was the owner of the money. We think the information is sufficient. A person of common understanding would undoubtedly know, from reading it, that it was intended to so charge. That is the criterion. (Rev. Codes, see. 9147.) It was not necessary to describe the money. (Rev. Codes, see. 9164.)
2. It appears from the state’s evidence that Hall Brothers, a corporation, was engaged in the insurance, real estate and other business in Butte; the defendant was its president and also attorney in fact for one Frank E. Southmayd, who resided in Wisconsin. On August 29, 1906, Christopher Stephens, brother of Maggie Stephens, visited Hall Brothers’ place of business and procured a note for $564.50, dated June 28, 1906, due ten months after date, payable to the order of Frank E. Southmayd, signed by Joseph P. and Annie Wynne. The defendant and one Wig-ginton were present at the time. Stephens paid $564.50 for the note, and it was thus indorsed: “Without recourse pay to the order of Maggie Stephens. (Signed) Frank E. Southmayd by S. A. Hall, attorney and agent in fact. ’ ’ Not anything was said at the time by the defendant as to how the note should be paid or collections made on it. Stephens continued to go to Hall Brothers’ place of business every month and collect one per cent interest on the sum evidenced by the Wynne note and also on twelve other notes, of various persons, which he procured or purchased at different times at the same place and under substantially similar circumstances. Some of these notes were purchased from the defendant personally. At times he was present at the transaction and sometimes not. Occasionally he paid the interest himself and made the indorsement; at other times it was paid by Wigginton. Nothing was ever said as to whether the Wynnes had paid interest on their note or as to where the interest came from. In August, 1910, Stephens went to Hall at his office, and, as narrated by the former, this conversation, in substance, was had: “I told him that I had three or four notes I bought off him in 1906 and I was going to call them in; and to that he told me he had called in quite a number of notes. I asked him what he did with the money and he told me he paid it out here and there. He said his big creditors were rushing him, and he said, ‘You won’t get anything out of it and I won’t,’ and he says, ‘I will take all your notes you have got and you take my personal note. ’ He says: ‘I will give you a note and pay you $1,000 in one year and another note in eighteen months and another in two years, and so on until I get you paid. ’ He told me he had lots of assets that would amount to more than the liabilities and he would settle up as soon as he could. So I never got a cent from him since that time. He stated he had collected the principal on all those notes I had.” The notes all ran to Frank E. Southmayd and were indorsed as was the Wynne note. Stephens never noti fied tbe makers of tbe notes to pay tbe interest directly to him. Once or twice Hall complained that some of tbe parties were not paying interest regularly, but be always paid it himself whether be had received it or not. Stephens also testified: “There were three notes I told him to collect for me. The first note I had him collect for me was in 1907 or 1908. That note was taken up. He collected the principal on that note and notified me and I brought down? the note and he gave me the principal. I had a conversation with him relative to collecting the principal on the notes introduced in evidence marked 1 to 13 for identification; I went to Hall last May or June, 1910, and I told him I had three notes outstanding since 1906; and I requested bim to call them in and I mentioned the notes, and he told me he would see the parties and have them pay the principal on these notes. Those were the Wynne note, the Mattock note and the Hornbeck note. So I went to him later, and he told me he was doing all the business himself at that time and was so busy he could not get around to see the parties; I went there three or four times; and one time he told me that he saw the parties and as soon as they could raise the money they would come in and pay them. That was about a month before he told me he had collected the principal and put it here and there. This note of $564.50, signed by Joseph P. Wynne and Anna Wynne, which is the one set out in the information and which I claim Sam Hall embezzled — if that money was paid by the Wynnes in February, 1908, to Sam Hall, I had not told Sam Hall to collect it, but I authorized his agent; I authorized his agent Wigginton to collect it, but I did not tell Sam Hall personally. If that money was paid to them it was authorized by me; it was authorized by me in 1907; I told Mr. Wigginton, and Wigginton was working for Sam Hall. In August Hall told me each and every one of those notes had been paid. ' That is what he told me, that every one of those notes had been paid. He told me he had collected the principal on all the notes I held.”
Nellie Jory,. bookkeeper for Hall Brothers, testified: “The method of keeping account as to those outstanding notes of Maggie Stephens was that the makers of the notes continued to pay the interest at Hall Brothers; we collected the interest and we paid it to him. The $564.50 Wynne note was paid on the 28th day of February, 1908. Assuming that was paid on the note indorsed to Miss Stephens, and we had the money belonging to Miss Stephens, we would not enter it as a credit in the Maggie Stephens account, not until we paid it over to Stephens. I don’t know why it was not turned over. After Hall Brothers had received this money from Mrs. Wynne and in payment of the Stephens note, I do not know why it was not credited to Maggie Stephens or Chris. Stephens. As a matter of fact, Hall Brothers had received $564.50, money which was paid by the debtor on a note which Stephens held. Mr. Hall knew that I was receiving money on those notes and not giving the holder of the note credit in his account. I • carried everything reading to Frank E. Southmayd under the name of ‘S. A. Hall, general.’ The ‘S. A. Hall, general’ account is a bills receivable account to Hall Brothers. So far as I know there was no account whatever with Frank E. Southmayd. The personal account of Sam Hall was carried in the name of A. F. Hall, his sister. The Stephens account never showed the amount of money that had been paid in for him.”
There is an abundance of evidence in the record to warrant the conclusion that Hall Brothers, the corporation, was simply a cloak or cover for the operations of the defendant Sam A. Hall. The latter testified: “Whenever I needed any cash I drew on the account of Hall Brothers and charged myself with it; when I needed money I got it there because when I got money in return I paid it back there. As each one of these notes was made it was made to Frank E. Southmayd. The loans were taken in his name for the purpose of convenience and to save a heavy tax and I was attorney in fact for him. Whenever one of these parties, for instance, Mr. Wynne, or other parties would come in and pay the principal on a note, that would be deposited at the Daly Bank in Hall Brothers’ account. I always had access to that bankbook. I was not handling the account with the bank but I was interested in it. The firm was drawing money on the strength of it and declaring dividends to various parties out of Hall Brothers’ assets, and I was getting credit for mine. We never notified any of these people that the principal of their notes had been collected. Hall Brothers agreed to pay the interest on these notes. That was the usual custom when money was paid in there; we paid the interest. Mr. Stephens looked to us for the interest on that money. The money that Stephens had in there it was understood that he was getting one per cent per month. I have no knowledge as to how much shortage there is in our accounts, due to this failure to turn over moneys which were collected on those notes. I do not think it is over $40,000. ’ ’
Wigginton testified: “Every nickel that was paid in there Hall knew about. I think there never was an instance to my knowledge where the party that held the note was notified that the principal was paid. I suggested to Hall that money was paid in by a certain party and this money should be paid over. He was highly insulted and said, ‘I will guarantee every note that is sold in that office; it is none of your business.’ I know that when Wynne came in and paid his note, we made an entry in the Wynne account showing that he had paid the note, but we made no entry in the Stephens account showing that $564.50 or any other sum was received for Stephens’ benefit upon the Wynne note. I called Hall’s attention to the principal on these notes being paid, and told him they should be advised of the payment of the principal. I did not see anything crooked in Hall’s buying an automobile or piano and other transactions, but the money was coming out of Hall Brothers; I knew that the money should have been in Hall Brothers and should have been paid to the people to’ pay the notes, the holder of the notes; it was to them the money should have been paid. I called his attention to it two or three times — to various notes.”
3. It is contended that the court erred in admitting the Wynne note in evidence for the reason that it was not shown the defendant had indorsed it or delivered it to Stephens. This contention is disposed of by reference to the testimony of Stephens that the defendant admitted having received and converted tbe principal of the note to his own use. The note was properly received in evidence as explanatory of, and leading np to, other facts and circumstances in the case, to enable the jury to understand the relations existing between Hall and his customers or clients, and their manner of transacting business. It was sufficient to show by any competent testimony how the note in question came into the possession of Stephens, through the medium of Hall Brothers, the subterfuge ‘employed by the defendant for cloaking his nefarious operations. It was of no consequence who indorsed it or transferred it. As a matter of fact, however, the indorsement was probably made by Wigginton, who testified that he had full authority from Hall for all his actions.
Again it is argued that there is no evidence to prove that any money was ever collected on the note. We have quoted sufficient testimony, we think, to show that this point is not well taken. Let us make it plain from the outset that in our judgment there is ample evidence that the corporation Hall Brothers, in all the transactions set forth in the record, was simply a disguise for Sam A. Hall; and that his own confession to Stephens was sufficient proof that he actually and personally received and converted the principal of the Wynne note.
4. It is contended that the court erred in allowing the state to prove other offenses of the same nature as that involved in the specific charge. All of these transactions were consummated through the medium of Hall Brothers, and ranged in time from prior to February 28, 1908, to January 28, 1909. They were numerous, and flagrant of felonious intent and criminal conduct. The transaction of the Wynne note was clearly proven to have been one of a class of similar dealings on the part of the defendant through the agency of Hall Brothers. All of them had similar features. A course of conduct was proven by which the defendant converted to his own personal use the moneys of those who dealt with the Hall Brothers corporation. All of these several felonies appear to have been part of a general scheme or plot to defraud the unsuspecting and. credulous people of Butte and elsewhere, who could be induced to leave their money with Hall Brothers by promises of large returns thereon in the way of interest; and others who, through false and fraudulent representations were persuaded to pay their outstanding obligations without receiving back the evidences thereof, which had in fact been transferred to others without their knowledge. Some of these fraudulent schemes were somewhat different, in details, from others, but all possessed common features indicating a common design. The length of time over which the inquiry should extend was within the sound legal discretion of the trial court. (Spurr v. United States, 87 Fed. 701, 31 C. C. A. 202.) We find no error in the admission of the testimony and no abuse of discretion. (See 1 Wigmore on Evidence, secs. 304, 315, 316; 12 Cyc. 411.) The author of the article in Cyc. says: “This rule is often applied where the crime charged is one of a series of swindles or other crimes involving a fraudulent intent, for the purpose of showing this intent.”
The district court of appeals of California in the Ruef case (People v. Ruef, 14 Cal. App. 576, 114 Pac. 48, 54) said: “The rule is that where several crimes are connected as part of one scheme or plan, all of the same character, and tending to the same common end, they may be given in evidence to show the process or motive and design leading up to the particular crime for which the prisoner is being tried, and thus directly tending to show logically that the crime in question was a part of such common scheme. If the several crimes are part of a chain of cause and consequence so linked as to be necessarily connected with the system or general plan, they are admissible.” The case of People v. Hill (Cal.), 34 Pac. 854, is not in point. That case involved two separate and distinct transactions, neither of which could have shed any light upon the other.
In the case of People v. Bartnett (Cal.), 113 Pac. 879, cited by appellant, the defendant was accused of embezzling certain bonds. The court compelled the prosecuting attorney to elect which particular offense he would rely upon, and afterward instructed the jury that if they believed the defendant had aided or abetted in the sale or disposition of any of thé bonds, it was their duty to convict him. This instruction was properly held to be erroneous. The trial court also advised the jury to consider the sales of other bonds, for the sole purpose of determining the intent of the defendant, but the appellate court declared that this instruction was simply in conflict with the former and did not cure the error therein.
5. The error, if any, in permitting the witness Atkins to testify that Stephens demanded payment of his note and asked to see his receipts, was immaterial and nonprejudieial in view of defendant’s admission to Stephens that he had collected all of the notes, and his virtual confession while a witness, that the proceeds thereof had been received and converted.
6. The witness Annie Harrington testified, over objection, that she loaned the defendant personally $2,980; that he gave her a paper that was worthless, that was “no good.” She appears not to have been very alert mentally. Two real estate mortgages, one for $184 and another for $1,500, were received in evidence. Both ran to Frank E. Southmayd, and were assigned by Hall, as attorney in fact, to Daniel D. Harrington, a brother of the witness. She testified that the principal of neither mortgage had been paid over by Hall to her brother. It was shown by the records in the office of the county recorder that defendant had satisfied the $1,500 mortgage of record, certifying that it had been fully paid. While the scheme to defraud disclosed by the foregoing evidence is somewhat different, in some of its details, from that practiced upon Stephens and others, we are of opinion that it falls within the general plan that was being carried forward by the defendant, and the evidence was competent.
7. There was no prejudicial error in the action of the court in admitting in evidence the mortgage for $184 above mentioned, and the assignment thereof to Harrington. No showing was made that Hall had received the sum secured by the mortgage. The evidence was simply immaterial.
8. We think the $1,500 mortgage and the assignment thereof were properly admitted in evidence. The whole affair discloses tbe fact that after assigning the mortgage to Harrington he collected it himself and kept the money. Annie Harrington testified positively that Hall had never paid over any of the proceeds to her brother, who appears to have been her agent in the transactions. Counsel are mistaken in supposing that she testified she knew nothing of the fact of nonpayment to Harrington. What she did admit was that she knew nothing personally as to whether Hall had collected the principal of the note. That was shown by the record, as aforesaid. Our attention has not been called to any testimony by the defendant, while on the stand, wherein he denied having received the proceeds of this note and mortgage, or asserted that he had paid them over to either of the Harringtons. We think the release of the mortgage by the defendant as attorney in fact for Southmayd, who appears to have been simply a convenience or “dummy” employed by him to carry out his schemes, coupled with other facts and circumstances in the case, was sufficient to warrant the conclusion that Hall actually received the amount of the mortgage debt from the mortgagor.
9. There is no merit ip the contention that the court erred in admitting in evidence certain receipts produced by the witness Atkins, purporting to show that a note executed by him to Southmayd and afterward transferred to Christopher Stephens had been paid. As we have already stated, Hall’s confession to Stephens that he had collected and converted the proceeds of all the notes held by the latter, sufficiently established that fact. Moreover, we are of opinion that in the light of the evidence as to the manner of operations employed by the defendant, through the medium of Hall Brothers corporation, Wigginton and his sister, the receipts were competent evidence of the fact of payment.
10. The witness Frances J. Atkins, wife of C. D. Atkins, testified that having paid a note to Hall she demanded the “original,” but he gave her a “renewal”; that he promised to send the “original” by mail but never did so. She afterward asked Wigginton if he knew where “the original” note was, and he replied be knew nothing about it. Objection was made to her statement that she made inquiry of Wigginton, but in view of the answer that he knew nothing about the matter, there was no prejudice. Other portions of the testimony of this witness, which are now claimed to be incompetent, were received without objection. We are clearly of opinion, moreover, that what Wigginton said and did in connection with the operations of Hall Brothers and the defendant, in assisting the latter to defraud his customers, was competent evidence.
11. When the defendant took the stand as a witness in his own behalf he made an effort to create the impression that Wigginton was responsible for the manner in which the affairs of Hall Brothers were conducted. He testified that Wigginton held stock in the corporation and was its secretary and treasurer. On cross-examination the state attempted to show that this latter statement was untrue and Wigginton subsequently denied the truth thereof. The defendant declared it was not at a stockholders’ meeting that Wigginton was elected as a director. He was asked: “Do you know of any authority for electing a board of directors at a meeting other than a stockholders’ meeting?” He answered, over objection, that he believed the by-laws of the corporation made such a provision. We think this was proper cross-examination.
12. Defendant testified, without objection, on cross-examination, that he got “some money once [from Hall Brothers] to buy a house with.” He was then asked: “How much money did you get for that purpose?” The question was objected to as incompetent and not proper cross-examination. He answered that he paid $4,250 for the house; that he took it from Hall Brothers and charged his account with it. We find no error in the ruling of the court. The question propounded was proper cross-examination, after defendant had testified that Wigginton was an officer of the corporation and had exclusive charge of its business. It was competent to show that defendant was using the moneys of the corporation as his own.
13. Defendant testified that be did not know a certain note, executed by one Carter and secured by mortgage, bad been paid until after tbe failure of Hall Brothers. He then identified his signature to a satisfaction of the mortgage dated the 30th day of December, 1908. The mortgage from Carter and wife to Southmayd, together with the release and satisfaction thereof, executed by Hall as attorney in fact for Southmayd, were then received in evidence over his objection. No error.
14. Defendant, having testified that he did not notify any of the holders of notes that the same had been collected; that “the firm” was paying some interest; that he might have signed “those checks” every now and then; that they paid Stephens a check for the interest he had coming, although the notes were all indorsed “without recourse” — was properly compelled to answer whether, in his judgment, any obligation rested upon him to pay interest or to guarantee the payment of either interest or principal. He answered that he was advised by counsel that there was a liability on the part of Hall Brothers.
15. Wigginton’s testimony that Hall Brothers were short $39,000 or $40,000 was competent to corroborate Stephens’ statement that Hall admitted having collected all the notes and having paid the proceeds out “here and there.” There could be no prejudice in receiving the evidence in any event, as the defendant testified to substantially the same thing without objection.
16. Specifications of error Nos. 32 and 33 relate to testimony to which no objection was interposed at the trial.
17. The state’s witness Karsted testified that he had had dealings with Hall. He was then requested to state what those dealings were. Over objection he answered: “I loaned out some money, about $3,000, to Mr. Hall and he never paid back a cent. He admitted that he collected money for me or on my account. I asked him point blank whether he had collected money for me and he said he had. He collected from a number of loans that I had — a number of parties in the city to whom I had given out loans — that is, which he had given out loans.” The witness then named six persons to whom he had loaned money, and then continued: “The notes of those various parties whose names I have just stated were held by me; I was the owner of those notes. Hall had authority to collect the interest and principal. He admitted to me that he had collected them; I asked him what he had done with the money and he would not admit what he had done with it; he didn’t turn it over to me. I never authorized him to make any other disposition of the money than to turn it over to me. Prior to that time I was not aware that these notes had been paid to Mr. Hall or that he had the money.” It is contended by counsel for the defendant that this testimony shows a perfectly innocent transaction, involving no criminality. To our minds, however, the jury were justified in believing that Karsted was the victim of a series of embezzlements similar to the one charged in the complaint.
18. Karsted also testified on cross-examination, in answer to the inquiry: “Mr. Hall admitted that the payments came to him?” “He did, and he admitted that $6,000 of my mother’s notes had been paid in and he could not show the money — six thousand of my mother’s.” The court refused to strike the answer, and it is now urged that in his direct examination he had said nothing about his mother’s money. The answer was not strictly responsive to the question, but we find no prejudicial error.
19. The witness, on redirect examination, was asked: “What notes did you refer to as your mother’s notes?” He answered: “I have a list of them here; I made the memorandum myself and know it is correct. ’ ’ He was then, properly, we think, allowed to read off a list of the makers and amounts of twenty promissory notes, aggregating $5,069.12. The objection becomes altogether immaterial when we reflect that Hall admitted a shortage of some $40,000, and the witness Karsted testified that he admitted to him that he had collected the principal on all of the notes mentioned.
20. Specification of error No. 39 goes to the refusal of the court to direct a verdict of acquittal. What is hereafter to be said, taken in connection with what we have already determined, will dispose of this assignment.
21. It is contended that the court erred in neglecting and refusing to instruct the jury as to an essential element of the crime of larceny, to-wit, the felonious appropriation of the property. Error is assigned on the refusal to give three instructions which are claimed to correctly state the law relating to the necessary ingredients of the crime. The offered instructions were numbered 2a, 4a and 5a. 2a did not directly raise the point, and 4a attempts to define a crime called ‘ ‘ embezzlement. ’ ’ There is no such crime known to the laws of this state. 2a also is not a correct statement of the law relating to the crime of larceny as bailee; but, even so, we are of opinion that the substance thereof was sufficiently covered by other instructions.
The best that can be said of 5a is that it suggests the necessity of instructing the jury that a felonious intent is necessary to constitute a crime. The first part of the instruction is so framed as to be confusing and almost meaningless. Certain words appear to be omitted therefrom. The expressions “simple larceny’’ and “embezzlement” are found therein, but the crime of which the defendant was accused is not mentioned, save in the last sentence, and it is there coupled with the declaration that the “talcing or conversion of personal property which renders a person guilty of simple larceny or of embezzlement is a feloni-ously taking or conversion.” The defendant was not charged with a felonious “taking.” We think the court was justified in refusing this instruction, for the reason that, if given, it would have had a tendency to confuse the jury, rather than to enlighten them.
Counsel argue: “The court’s attention, by these instructions, was called to the proposition that the word ‘feloniously’ or some equivalent word or language is absolutely essential to a correct instruction where the crime of grand larceny is charged.” They cite State v. Peterson, 36 Mont. 109, 92 Pac. 302, State v. McLeod, 35 Mont. 372, 89 Pac. 831, State v. Sloan, 35 Mont. 367, 89 Pac. 829, State v. Allen, 34 Mont. 403, 87 Pac. 177, and State v. Rechnitz, 20 Mont. 488, 52 Pac. 264, in support of tbeir contention. The question arises, therefore, whether under our system of settling instructions, a defendant in a criminal action may, without tendering one which is correct in point of law or which should have been given, or by offering one which is incorrect, predicate error upon the refusal of the court to give a correct instruction or any instruction on the subject, by simply suggesting or calling attention generally to the fact that the instructions proposed to be given do not cover the point.
For the purposes of this action we shall assume that it is the duty of the trial court to charge the jury of its own motion in a criminal case, and that the charge should substantially cover the main issues, so as to enable the jury to intelligently decide them. This does not mean, however, that the court must, without request, cover every point in the case, or explain every issue, or deliver a charge so comprehensive in scope as to be beyond fault or criticism. If such were the law very few criminal convictions could stand. In the instant case, the court, of its own motion, gave many instructions to the jury. The information charges that the defendant feloniously appropriated the money of Maggie Stephens to his own use. The jury were instructed (1) that his plea of not guilty made it incumbent upon the state to prove all of the material allegations contained in the information beyond a reasonable doubt, and that the evidence must be sufficient to establish every element of the crime charged; (2) that if they entertained any reasonable doubt upon any single fact or element necessary to constitute the crime, it was their duty to acquit; (3) that in every crime there must exist a union or joint operation of act and intent. The court also defined the crime of larceny as bailee in the words of the statute. As is well known to the profession, this definition is defective in that it omits any reference to a criminal intent. Grand larceny was also defined. Altogether nineteen instructions were given. So it appears that the court made a reasonable effort to advise the jury of the issues in the case and the constitutional rights of the defendant. They were also given the usual and ordinary rules for their guidance in weighing evidence and determining the credibility of witnesses. The instruction defining larceny as bailee was given without objection. It was defective. The legislature has endeavored to minimize reversals in criminal actions growing out of the charge, or failure to charge, by the court, by enacting section 9271, Revised Codes. That section provides, among other things, as follows: “When the evidence is concluded, if either party desires special instructions to be given to the jury, such instructions shall be reduced to writing * * * and together with a written request asking the same * * * delivered to the court. At all times prior to the charging the jury the instructions to be given shall be * * * settled by the court, at which settlement counsel for the parties shall be allowed reasonable opportunity to examine the instructions requested and proposed to be given by the court and to present and argue to the court objections and exceptions to the adoption or rejection of any instruction offered by counsel or proposed to be given to the jury by the court. On such settlement of the instructions the respective counsel, or the parties, shall specify and state the particular ground on which the instruction is objected or excepted to, and it shall not be sufficient in stating the ground of such objection or exception to state generally that the instruction does not state the law, or is against law, but such ground of objection or exception shall specify particularly wherein the instruction is insufficient, or does not state the law, or what particular clause therein is objected to. * * * No motion for a new trial on the ground of errors in the instructions given shall be granted by the district court unless the error so assigned, was specifically pointed out and excepted to at the settlement of the instructions, as herein provided; and no cause shall be reversed by the supreme court for any error in instructions which was not specifically pointed out and excepted to at the settlement of the instructions * * * and such error and exception incorporated in and settled in the bill of exceptions. # # * In charging the jury, the court shall give to them all matters of law which it thinks necessary for its information and guidance.”
The spirit as well as the letter of the foregoing provision is that general requests and objections are to be disregarded both by the trial court and by this court. The purpose of the legislature was that the attention of the trial court must be specifically directed to any alleged defect in a proposed instruction, and requests for particular instructions must be reduced to writing and delivered to the court. Ample time is given for examination of the court’s proposed charge, to the end that specific objections may be made thereto. The particular ground of objection must be stated and general objections are not sufficient. The objection must specify particularly wherein the instruction is insufficient or does not state the law. It will readily be seen, therefore, that a suggestion contained in a defective offered instruction is not sufficient to constitute a specific objection to another instruction proposed to be given by the court. Not having offered a good instruction and having failed to point out the particular defect in that of the court, the defendant cannot be heard to say that the trial court erred to his prejudice. The statute forbids this court to grant a reversal in the circumstances.
22. Defendant’s instruction No. 3a was refused. It reads as follows: “You are instructed that considerable evidence was admitted with reference to transactions other than the larceny of $564.50, and in this connection the court instructs you that even if there may be evidence that the defendant Sam Hall converted other money at other times to his own use, this is not sufficient evidence to find the defendant guilty, and you are instructed that unless you are satisfied beyond a reasonable doubt, that the defendant Sam Hall committed the crime of grand larceny and appropriated, as is set out in the information, the sum of $564.50, or some part thereof, belonging to Maggie Stephens, then you must find him not guilty. ” It is now argued that this instruction was intended to advise the jury that evidence of other crimes was only to be considered as bearing iipon the question of intent. Many eases are called to our attention holding that the court should inform the jury, on request, that such evidence must be so limited in effect. But the instruction offered did not so limit the effect of the evidence. It told the jury that evidence of other crimes was not sufficient to convict the defendant of the particular crime charged. This of course was true. But the evidence was nevertheless competent, as we have heretofore shown. To have given this instruction as offered would almost have amounted to a direction to disregard the evidence. If counsel desired the court to charge the jury that, evidence of other similar offenses was only admitted to guide them in determining the intent of the defendant, they should have made a specific request for such an instruction. The record shows that the court told the jury, when the evidence was offered, that it was only admitted as bearing on the question of intent.
23. Again, it is contended that the verdict is not supported by the evidence, in that there was no showing that the defendant, or Hall Brothers, had authority to collect the Wynne note. The gist of the argumént is that if the defendant converted any money, it belonged to the Wynnes and not to Maggie Stephens. There is no merit in this contention. Stephens was the agent for his. sister. He had power to act for her. As early as 1907 he gave authority to Wigginton for Hall Brothers to collect the Wynne note. He so testified. Hall Brothers, while ostensibly the title of a corporation, was in reality the name under which the defendant was carrying on his operations. Wigginton was. its agent and his agent. Acting on such authority, Hall Brothers collected the Wynne note and the defendant appropriated the proceeds thereof to his own use. He confessed as much to Stephens. He knew every detail of the business. He was informed that the makers of notes were paying the amounts thereof into the office of the corporation. He knew that these amounts were being deposited in the Daly bank to the credit of the corporation, and he treated the moneys so deposited as his own personal property. Wherever the technical title to these moneys may have rested, as between the makers and indorsees of the notes, the fact remains and may be gathered from a multitude of circumstances disclosed by the record, that Hall encouraged the makers to pay the interest and principal of their notes to him, assuming the right to collect the same. He collected and paid over to Stephens the interest on the Wynne note from the time of its purchase by the latter, assuming to act as the agent of Maggie Stephens. It seems to have been understood between him and his victims that he should collect the amounts due and hold the same as bailee for the owners of the notes. The proceeds of one note was paid to him as agent for Stephens and he subsequently turned the amount over to the latter. "When Stephens desired to call in notes for payment he went to Hall. The whole course of •conduct of the defendant, his agent Wigginton, Stephens, and the Wynnes, shows that Hall not only assumed, but that he actually had, authority to collect the Wynne note. His confession to Stephens and the attempt to induce the latter to take his notes in payment of the amounts of which he had defrauded him and his sister, clearly shows that the defendant himself never questioned his authority to collect the note.
24. Finally it is urged that there is not any testimony in the record to show that Maggie Stephens did not consent to the appropriation by the defendant of the proceeds of the Wynne note. Maggie Stephens did not appear in the case as a witness or otherwise. Her brother was her agent with full power to act in her behalf. He purchased the notes and collected the interest. He testified that the defendant was never given authority to convert the proceeds of any of the notes to his own use. Hall virtually confessed as much in the conversation with Stephens to which we have just referred. He was palpably guilty of the •crime charged, and although there were many technical errors committed at the trial, we are clearly of opinion that he was properly and justly convicted.
The judgment and order are affirmed.
Affirmed.
Mr. Justice Holloway concurs.
Mr. Chief Justice Brantly:
I cannot agree with my associates in the disposition made of this case. I think the defendant is entitled -to a new trial. In my opinion the evidence does not show that the money alleged to have been appropriated by the defendant belonged to Maggie Stephens. To sustain the verdict it was indispensable that this fact be established.
The court submitted the ease to the jury without giving them any definition of larceny, other than that embodied in the statute. This court has repeatedly held, as appears from the case of State v. Allen and the others cited in the majority opinion, that this is not sufficient. It is true that counsel for the defendant did not submit a properly drawn request for an instruction covering the point, yet I think the requests submitted indicated clearly what the desire of counsel was, and that the court should of its own motion have submitted a proper instruction. Even under the liberal rule prescribed by the statute (Rev. Codes, sec. 9271) a trial court cannot neglect the duty to give such instructions as will enable the jury to find properly with reference to each element of the crime charged. Under the instructions as given, the jury were justified in finding the defendant guilty upon the theory that his appropriation of the money was wrongful though not felonious.
Rehearing denied June 4, 1912.
|
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] |
PER CURIAM.
Relator’s application for a writ of review is denied.
|
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MR. JUSTICE STARK
delivered the opinion of the court.
The complaint in this action states four causes of action, each of which is based upon a lease executed by the plaintiff to the defendant milling company, covering personal property consisting of mining machinery, at a stipulated monthly rental. Except as to the properties leased and the amount of rental reserved, the leases are identical, and, so far as necessary to be noted, are in the usual form of such instruments. To each of these leases there was appended a contract, signed by the defendant Whitworth, the material portions of which, except as to the amount therein named, read as follows:
“(a) In consideration of the leasing of the machinery and personal property in the foregoing lease described, and of the rents and covenants in said lease, I hereby become surety for the fulfillment of all the terms and conditions in said lease to be made and performed; (b) and, if any default shall be made therein, I hereby promise and agree to pay unto the Butte Machinery Company, the lessor, or its assigns, such sum or sums of money, not exceeding, * * * as will be sufficient to make up such deficiency and fully satisfy the conditions of said lease or agreement or any extension thereof, without requiring any notice of nonpayment or proofs of damage being made.”
For convenience of reference, we have designated the two clauses of this contract by the letters (a) and (b), respectively.
In each of the four causes of action it is alleged that a certain amount of rent was due on the lease therein set forth and judgment therefor is demanded against both of the defendants.
To this complaint, and each cause of action thereof, the defendant milling company filed a general demurrer, and the defendant Whitworth likewise filed a general demurrer, • and also demurred specially on the ground, amongst others, that there is a misjoinder of parties defendant, in that it appears that he could only be held secondarily liable, and that suit could not be maintained against him until the plaintiff had first exhausted its rights against the defendant milling company. These demurrers were overruled, whereupon separate answers were filed by the defendants.
The cause was brought on for trial before a jury. At the close of all the testimony, both the plaintiff and the defendants moved for directed verdicts. The court sustained the plaintiff’s motion, directed verdicts against both the defendants upon each cause of action, and judgment was entered accordingly. The defendants moved for a new trial, which was denied, and they have 'brought the case to this court on appeal from the judgment.
Appellants’ assignments of error present but two matters for our consideration:
It is contended that the court erred in overruling the special demurrer of the defendant Whitworth. In order to pass upon this contention, it is necessary to determine whether the contract signed by Whitworth imposed upon him the duties of a surety or of a guarantor.
A contract of guaranty is one whereby the promisor is bound independently of the person for whose benefit it is made. In the words of the statute (section 8171, Revised Codes of 1921): “A guaranty is a promise to answer for the debt, default or miscarriage of another person.”
“A surety is one who, at the request of another, and for the purpose of securing to him a benefit becomes responsible for the performance by the latter of some act in favor of a third person, or hypothecates property as security therefor.” (Sec. 8195, Id.)
The vital difference between the contract of a surety and that of a guarantor is that a surety is charged as an original promisor, while the engagement of a guarantor is a collateral undertaking. (Saint v. Wheeler etc. Mfg. Co., 95 Ala. 362, 36 Am. St. Rep. 210, 10 South. 539.)
A creditor may bring an action jointly against a surety and the debtor, but he cannot join both the guarantoi’ and the debtor in one suit, because there is neither privity of contract, mutuality nor joint liability between the principal debtor and his guarantor. (Adams v. Wallace, 119 Cal. 67, 51 Pac. 14; Bull v. Coe, 77 Cal. 54, 11 Am. St. Rep. 235, 18 Pac. 808; Emerson-Brantingham I. Co. v. Raugstad, 65 Mont. 297, 211 Pac. 305.)
If the clause (a) stood alone, it would be a straight con- tract of suretyship, and Whitworth would be liable for the amount of the plaintiff’s claim in the first instance, and resort could be had against him, whether or not a satisfaction of the claim could be made from the milling company. On the other hand, if the clause (b) stood by itself, it would constitute a clear contract of guaranty, since it would only bind Whit-worth to make up the deficiency which might remain due to the plaintiff after an ineffectual attempt to satisfy the same from the milling company, but he could not be sued jointly with the milling company thereon.
The general intent of the contract is clear, viz.: Whitworth assured the plaintiff that it would be paid whatever was due it under the terms of the lease to which it was attached. It would hardly be supposed that it was intended by the parties to bind him both as a surety and as a guarantor. If it was intended to bind him as a surety under clause (a), the clause (b) would be superfluous and meaningless so far as fixing Whitworth’s liability is concerned, for his liability under clause (a) would be broader and more comprehensive than under clause (b), and would cover any possible liability which might be fixed upon him under the latter clause, and the remedies against him under the two clauses would be inconsistent with each other. Clause (a) fixes a general primary liability under any circumstances, whereas clause (b) only establishes a secondary liability under particular conditions. The liabilities created by the two clauses are inconsistent with each other. Under such a state of facts we may have resort to the canon of construction declared in section 10520, Bevised Codes of 1921, which is that, in the construction of an instrument, “the intention of the parties, is to be pursued if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.”
This leads us to the conclusion that the contract in question was intended by the parties to be one of guaranty and not one of suretyship. Therefore, under the authorities above cited a joint action could not 'be maintained against the milling company and Whitworth; consequently there is a misjoinder of parties defendant in this complaint, and the court erred in overruling the special demurrer of the defendant Whitworth based upon that ground.
This determination requires a reversal of the judgment as to the defendant Whitworth, and it remains to be ascertained whether the evidence introduced at the trial was sufficient to sustain the judgment entered against the milling company.
In the complaint, the plaintiff alleged a balance of $882.52 due on all the causes of action, after allowing total credits in the sum of $237.50. This would make the total rentals claimed to have been earned amount to $1,120.02. On the part of the defendants it was shown that there had been paid to the plaintiff the sum of $1,015, and it was claimed that this amount should all have been credited on the accounts set out in the complaint. The plaintiff, however, introduced evidence showing that the milling company had a contemporaneous account with it for merchandise upon which it had credited some of these payments. The testimony shows that these payments had been made by several different checks, all of which had been remitted to the plaintiff without any specific direction as to their application. ¡
The only definite information as to this merchandise account contained in the record shows a total debit thereon against the milling company of $456.78. Adding this amount to the $1,120.02, rental account, makes a total of $1,576.80 as the total amount which accrued to the plaintiff on both accounts. Deducting therefrom the $1,015 paid, leaves a balance of only $561.80. The court gave plaintiff a judgment for $882.50. The plaintiff gave no satisfactory testimony to account for the difference between these two amounts.
It is our conclusion that the testimony is not sufficient to sustain the judgment entered against the milling company, and that the court should have granted its motion for a new trial.
For the reasons above indicated, the judgment is reversed and the cause remanded to the district court, with directions to sustain the special demurrer of the defendant Whitworth, and to grant the defendant milling company a new trial.
Reversed and remanded.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Matthews concur.
|
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] |
MR. JUSTICE MATTHEWS
delivered the opinion of the court.
The defendant company has appealed from a judgment awarding plaintiff the sum of $3,100, with interest from November 24, 1923, and costs, on a fire loss covered by a policy of insurance written by defendant company.
It appears from the record that on November 22, 1922, the defendant, a “mutual” company, operating only in Rich-land county, in consideration of a membership fee in the company and an additional premium thereon, issued to plaintiff, who thereby became a member of the company, a fire policy on his ranch-house with its contents, and upon his barn, on a certain quarter-section described, for the term of five years, the risk being $2,800 on the house, $425 on its contents, and $400 on the barn; that on November 22, 1923, while such policy was in full force and effect, the house with all its contents was destroyed by fire, but the barn was not injured.
The policy, which is made a part of the complaint filed herein, made no mention of proof of loss, but provides that the insurance is subject to the provisions of the company’s by-laws, which, in so far as they affect the questions here raised, are:
‘ ‘ Section 55. In case of loss' or damage by fire or lightning, the insured shall give immediate notice to the secretary, and within five (5) days after such loss or damage deliver to the secretary a particular statement in writing of such loss or damage, signed by him and certified by his oath and affirmation, and also, if required, by proper vouchers, and stating the whole cash value of the property lost or damaged; how the fire originated as far ás he knows or believes, and that the loss occurred by misfortune and without fraud or evil practice on his part. (The company will furnish blanks for the same.) The president shall immediately appoint a committee of one (1) on all losses not exceeding two hundred dollars, ($200.00) and on all losses over two hundred dollars ($200.00) a committee of not less than three (3) nor more than five (5) members of the company of which the secretary shall constitute one member, to ascertain the amount of such loss.”
“Section 59. Losses shall not be payable until satisfactory proofs of the losses, prescribed in the by-laws, have been received by the company.”
'“Section 70. No change, alteration, indorsement or transfer of any policy shall be valid unless signed by and indorsed thereon by the secretary; in either case a duplicate record must be made on the policy register, and in case of transfer the party in interest shall give his obligation in place of the original obligation.
“Section 71. Policies are not assignable for the purpose of collateral security, but may be made payable to mortgagee as his interest may appear by attaching mortgagee clause to policy. ’ ’
Although plaintiff’s lands and improvements were mortgaged, no “mortgagee clause” was attached to the policy.
On December 18, 1923, plaintiff executed in duplicate, and delivered to the defendant and to his mortgagee, the following assignment:
“To Chris. Christiansen, President, and Harry T. Hanson, Secretary, Mutual Fire & Lightning Insurance Company of Richland County, Montana:
“In consideration of a mortgage given to C. L. Dempster of Lake City, Minn., during the year 1917, with the understanding that, the buildings on S. E. %, sec. 12, Twp. 25, Rge. 58, be insured during the life -of the mortgage for the benefit of the mortgagee, I hereby assign all my rights in insurance covering the buildings as stated in policy No. 417, dated November 2, 1922, to said C. L. Dempster, his assigns, and you are hereby authorized to make a draft in payment of loss covered by said policy payable to C. L. Dempster or to C. L. Dempster and myself jointly.
{‘ Charles La Bonte.
“Please attach to your record.”
The assignment, mailed to Dempster, the mortgagee, wa¿ for reasons not appearing in the record returned to plaintiff and was by him produced on the trial. All testimony as to the contents of the letter accompanying its return was excluded on defendant’s objection thereto.
On January 15, 1924, defendant notified plaintiff as follows: “Your claim of November 25, 1923, for $3,186.00 has been disallowed.” Thereupon plaintiff commenced action, and in his complaint alleged, by separate paragraphs; (1) The corporate capacity of defendant; (2) the ownership in himself of all property described in the policy; (3) that the policy was in full force and effect at the time of the fire; (4) the total loss of all property covered; and (5) that ho duly furnished the company with proof of loss and performed all conditions imposed upon him by the policy. He prayed for judgment in the full sum of the policy, with interest from the date of the fire.
To the complaint defendant interposed a general demurrer, which was by the court overruled. Thereafter, by answer, defendant admitted the allegations of paragraphs 1, 2 and 3 of the complaint; denied the allegations of paragraphs 4 and 5 thereof; and affirmatively alleged that but a portion of the property insured was destroyed by the fire, and that by plaintiff’s own willful and fraudulent act. Although defendant had in its possession the duplicate assignment to Dempster, the answer contained no allegation to the effect that plaintiff was not the real party in interest.
Plaintiff in reply denied the affirmative allegations of^the answer, and at the opening of the trial amended paragraph 3 of his complaint by adding thereto the words: “And that the plaintiff is now the owner and holder of the said policy of insurance.” By agreement in open court the admission in the answer of the allegations of paragraph 3 was extended to the amendment.
Plaintiff’s proof showed that the house and contents, of a total value of approximately $3,100, were destroyed, but that the barn was not injured; that on the day following the fire plaintiff notified the secretary of the company of his loss, and that the day following such notice, the president, the secretary, and on.e other member of the; company appeared at the scene of the fire and interrogated the plaintiff as to items destroyed and their value, which latter was roughly given, and that all statements were taken down by the secretary. The list thus furnished covered all items with the exception of a small amount of wearing apparel belonging to plaintiff’s wife, which he agreed to list later, but did not. Plaintiff was not advised by the officers of the company, then or at any other time, that anything further was required of him, other than that he should later furnish a list of the unimportant items which he was not then able to give them.
At the close of the plaintiff’s case, defendant moved for judgment of nonsuit upon the sole ground that plaintiff was not the real party in interest. The motion was overruled. Defendant thereupon produced evidence upon which the jury might have found that the plaintiff had willfully set fire to his property.
The secretary testified that the three men who called upon plaintiff after the fire constituted the committee appointed, pursuant to the by-laws, by the president for the purpose of appraising the loss and were- there for that purpose. No witness testified that proof of loss was not furnished the company.
On rebuttal the plaintiff explained certain suspicious circumstances appearing from testimony on the part of the defendant, denied all knowledge of the origin of the fire, and testified that he did all in his power to save the property.
At the close of all the evidence, defendant moved the court to instruct the jury to return a verdict in favor of defendant on the ground that plaintiff, through his failure to furnish formal proof of loss, was barred from a recovery in the action. This motion was overruled* On the conflicting evidence the jury returned its verdict on February 18, 1925, in favor of plaintiff and for the sum of $3,100, with interest thereon at eight per cent from November 23, 1923. Judgment was entered thereon and notice thereof given defendant on February 20, 1925. On March 2, 1925, defendant served and filed notice of intention to move for a new trial, which notice was by the court, on motion of plaintiff, stricken from the files on the ground that it was not filed within time.
Defendant’s specifications of error are that the court erred (1) in overruling its motion for nonsuit; (2) in overruling its motion for a directed verdict; (3) in rendering and entering its judgment; and (4) in granting plaintiff’s motion to strike the notice of intention to move for a new trial.
1. The plaintiff asserts that, as the appeal before us is from the judgment alone, this court cannot consider the sufficiency of the evidence to support the judgment, citing Withers v. Kemper, 25 Mont. 432, 65 Pac. 422, or at most can only examine the record to determine whether there is any evidence to support the judgment, citing Dawes v. City of Great Falls, 31 Mont. 9, 77 Pac. 309.
In the first case cited, Mr. Justice Milburn, speaking for the court, called attention to the fact that the only attack made upon the evidence was by motion to strike, and that’ no motion for judgment was made, and thereafter said: “A bill of exceptions can raise only errors of the court in its rulings upon points of law * * * Before the court could err in ruling upon the weight of the evidence to support a decision in favor of the plaintiff, it would be necessary for the question to have been raised before the court.” The question of the sufficiency of the evidence not having been raised in the manner indicated, or otherwise, the court properly held that the question could not be determined on the appeal from the judgment.
In the second case cited, a motion for a new trial was made and overruled, but, though at that time the order overruling the motion was appealable, no appeal was taken from the order, and it was therefore held that the questions presented to the trial court on the motion for a new trial were not before the supreme court on the appeal from the judgment.
But a motion for a judgment of nonsuit, or a motion for a directed verdict, is in effect a demurrer to the evidence and presents to the trial court a question of law to be determined (Neininger v. Cowan, 101 Fed. 787, 42 C. C. A. 20; Cravens v. Dewey, 13 Cal. 40), and where either of such motions is made in the trial court and overruled, the question of the sufficiency of the evidence to support the verdict and judgment is before this court on an appeal from the judgment (McKay v. Montana Union Ry. Co., 13 Mont. 15, 31 Pac. 999; William Mercantile Co. v. Fussy, 13 Mont. 401, 34 Pac. 189; Emerson v. Eldorado Ditch Co., 18 Mont. 247, 44 Pac. 969; Kleinschmidt v. McAndrews, 117 U. S. 282, 29 L. Ed. 905, 6 Sup. Ct. Rep. 761; Frecking v. Rolland, 53 N. Y. 422; Vail v. Reynolds, 118 N. Y. 297, 4 Ann. Cas. 304, 23 N. E. 301).
In support of assignment No. 1, counsel for defendant assert that by reason of his assignment of his claim, plaintiff parted with his right of action and was not the real party in interest, and as to assignment No. 2, contend that by failure to furnish formal proof of loss, plaintiff was precluded from a recovery, and admit that the third assignment depends entirely upon a determination of assignment 1 or 2 in favor of defendant.
2. Tbe merits of defendant’s first assertion are not before us. By a positive provision of our Codes regulating our practice, the defendant was required to challenge the plaintiff’s right to maintain the action by demurrer, if any defect appeared on the face of the complaint. (Sec. 9131, Rev. Codes 1921.) As “every action must be prosecuted in the name of the real party in interest” (sec. 9067, Id.), if it appears from the face of the complaint that the plaintiff is not the real party in interest, the objection may be reached by a general demurrer (Lefebure v. Baker, 69 Mont. 193, 220 Pac. 1111); but here no such defect appears on the face of the complaint, and therefore defendant’s general demurrer was of no avail. “When any of the matters enumerated in section 9131 do not appear upon the face of the complaint, the objection may be taken by answer” (sec. 9135), and, if not so taken, the objection is deemed waived (sec. 9136). These provisions of the code are in accord with the general rule that “a defense that the plaintiff is not the real party in interest, and hence has no right to sue, must be specially pleaded in bar” (31 Cyc. 219) ; and the defendant having, with full knowledge of all the facts, failed to take its objection by answer, has waived the same and cannot here assert it (Church v. Zywert, 58 Mont. 102, 190 Pac. 291; Schauer v. Morgan, 67 Mont. 455, 216 Pac. 347; Genzberger v. Adams, 62 Mont. 430, 205 Pac. 658).
3. Defendant suggests that, if the judgment herein is permitted to stand, it will be liable to a double payment of the loss, as payment to the insured will not discharge it from liability to Dempster, the assignee. We think this apprehension groundless. While the clause against assignment of the policy without the consent of the insurer might not prevent an assignment of the claim after the insured has suffered a loss (Wood on Insurance, sec. 99; May on Insurance, 389; West Branch Co. v. Helfenstein, 40 Pa. 289, 80 Am. Dec. 573; New York Life Ins. Co. v. Flack, 3 Md. 341, 56 Am. Dec. 749), in order to constitute an assignment, as in the ease of every assignment, there must be an acceptance of the offer made. In this case, the assignee, Dempster, returned the assignment to plain tiff, which act would indicate a rejection rather than an acceptance, and, as plaintiff had in his possession both the policy and the assignment and introduced them in evidence, Dempster would have nothing on which to base an action against this defendant if he sought to do so.
Again, Dempster was the holder of a mortgage on the real estate and not on the personal property; the assignment is of plaintiff’s claim for loss of the building's which were separately listed in the policy; a substantial portion of his claim was thus retained by him, which would constitute an attempted splitting of his cause of action. As the company did not consent to such action, the attempted assignment, even if accepted by Dempster, was a nullity so far as this defendant is concerned. “Since the effect of the assignment of a part of a debt is to change materially the situation of the debtor by making him subject to the demands of two persons instead of one, it is generally held that his consent to such an assignment is essential to the creation of any obligation on his part to the assignee.” (2 R. C. L., p. 624.) In the absence of consent, an assignment of a part of the claim cannot, even under a statute authorizing suit in the name of the real party in interest, be enforced by direct suit by the assignee against the debtor without his consent, although effective between the assignor and the assignee. (2 R. C. L. 640.)
4. The second question raised is that plaintiff failed to furnish the required proof of loss, that is, written proof, subscribed and sworn to by the insured and delivered to the insurer within five days after the fire. Such a requirement in a policy is a condition precedent, and failure to comply therewith will bar a recovery under the policy, unless the condition is waived by the company. (Careve v. Phoenix Ins. Co., 67 Mont. 236, 215 Pac. 235; Tuttle v. Pacific Mut. Life Ins. Co., 58 Mont. 121, 16 A. L. R. 601, 190 Pac. 993.) But that the insurer may, either voluntarily or involuntarily, waive this condition, has been settled beyond question in this state, in construing section 8145, Revised Codes of 1921, which declares that “delay in the presentation to an insurer of notice or proof of loss is waived, if caused by any act of his, or if he omits to make objection promptly and specifically upon that ground.” This section, with companion sections, are said in Pasherstnik v. Continental Ins. Co., 67 Mont. 19, 214 Pac. 603, to be “as much a part of the policy of insurance as though written therein, and are controlling wherein their provisions conflict with those actually contained in the policy.” (Morrison v. Concordia Fire Ins. Co., 72 Mont. 97, 231 Pac. 905; Ames v. Minneapolis Fire etc. Ins. Co., 69 Mont. 177, 220 Pac. 747; Snell v. North British Ins. Co., 61 Mont. 547, 203 Pac. 521; Da Rin v. Casualty Co., 41 Mont. 175, 137 Am. St. Rep. 709, 27 L. R. A. (n. s.) 1164, 108 Pac. 649.)
"While the plaintiff’s testimony concerning what was done by the company within the five days after the fire may not have been sufficient to show waiver of this condition, the defendant furnished the missing details by showing that the three men who visited the premises at that time were a duly appointed and acting committee of the company, appointed by the president, under section 55 of the by-laws to ascertain, and were there to ascertain, the loss. This evidence may be considered, in connection with that of the plaintiff, in determining whether error was committed by the court in overruling the motion for a directed verdict; for where such motion is made, it should not be granted if the defendant’s evidence supplies the deficiencies in the plaintiff’s case. (McKay v. Montana Union Ry. Co., above; Slack v. Brown, 61 Mont. 99, 201 Pac. 565.)
It therefore appears from the record that plaintiff notified defendant of his loss within the prescribed time, and that the day following such notice, a committee, which under section 55 of the by-laws of the company could only be appointed after receipt of the proof of loss, was duly appointed by the president in the manner and for the purpose set out in that section and did all that it would have done acting under a formal proof of loss duly filed, and in their dealing with the plaintiff no member of the committee intimated that anything further would be required of plaintiff other than the furnishing of an additional list of certain small articles, which were not considered on the trial. No witness testified that the formal proof of loss was not furnished, and the notice of disallowance of the “claim” indicated, not that plaintiff’s right to a settlement was denied because of his failure to furnish written proof of loss, but that a “claim” was filed and disallowed for other reasons. Those reasons would seem to appear clearly from the nature of the defense made. Under these circumstances, we cannot but hold that the evidence established a waiver of formal proof of loss.
5. The defendant, however, contends that -in order to prove a waiver, plaintiff must have first pleaded waiver, and this he did not do, citing 26 C. J. 395; Snell v. North British Ins. Co., above; Krause v. Insurance Co. of North America, 73 Mont. 169, 235 Pac. 408; Continental Ins. Co. v. Chance, 48 Okl. 324, 150 Pac. 114. As stated by Mr. Justice Holloway in Lackmam v. Simpson, 46 Mont. 518, 129 Pac. 325: “This is the general rule; but the rule is equally well settled in this state that where evidence, which might have been excluded as not tending to reflect upon any issue made by the pleadings, has been admitted without objection, it will be given the same consideration as though fully warranted by the pleading of the party offering the evidence, or, in other words, the pleading will be treated as if. it had been amended to admit the introduction of the evidence.” (Archer v. Chicago, M. & St. P. Ry. Co., 41 Mont. 56, 137 Am. St. Rep. 692, 108 Pac. 571; O’Brien v. Corra-Rock Island Min. Co., 40 Mont. 212, 105 Pac. 724; Capital Lumber Co. v. Barth, 33 Mont. 94, 81 Pac. 994; First Nat. Bank v. Robke, 72 Mont. 527, 235 Pac. 327.)
The company here did not defend upon the ground that the formal proof of loss was not furnished, but upon the theory that plaintiff had willfully burned his property; all of the evidence as to what was done after the fire was admitted without objection, and the evidence of the plaintiff was supplemented and its deficiencies supplied by the defendant. If no formal proof of loss was furnished, the company had full knowledge of that fact and could have successfully objected, under the allegations of plaintiff’s complaint, to the introduction of all of the evidence constituting a waiver and insisted upon proof of the allegation that proof of loss was furnished the company before any proof of loss could be introduced. As defendant permitted this evidence to go in without objection, the court was justified, on the motion for a directed verdict, in treating the complaint as though amended to admit the introduction of that evidence, and did not err in overruling the motion.
6. There is no merit in defendant’s fourth assignment. The order of the court striking the notice of intention to move for a new trial cannot be reviewed on an appeal from the judgment, and even if it could be, no error was committed, as section 9399, Bevised Codes of 1921, requires a party, desiring to move for a new trial in a case tried by a jury, to serve upon the adverse party and file his notice of motion for a new trial within ten days after the return of the verdict. Here the verdict was returned on February 18, and the notice stricken was not served or filed until twelve days thereafter.
No substantial error appearing in the record, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Galen and Stark concur.
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
During all the time involved in this controversy, our depositary law required every county treasurer to deposit public funds in his possession or under his control in banks in the county designated by the board of county commissioners. It provided that the deposits should draw interest and should be secured by such surety bonds, personal bonds, or public securities, warrants, etc., as the board of county commissioners might prescribe, approve and deem sufficient for the purpose intended. (See. 4767, Rev. Codes 1921, as amended by Chap. 89, Laws of 1923.)
Early in 1923, the American Bank & Trust Company of Missoula, which had been designated a depositary, had on deposit some of the. public funds, and it had an effective depositary bond upon which the Maryland Casualty Company was surety. On March 24, 1923, the bank procured ah additional bond (the bond in controversy), upon which the individual defendants Gibson, Peterson, Dragstedt and La Casse were sureties, and this bond was tendered to the board. When it came into the possession of the county treasurer about April 5, it bore the indorsement: “Examined, approved, and ordered filed, April 5, 1923. R. W. Angevine, Chairman Board of C ounty C ommissioners. ’ ’
A meeting of the board was held on July 21 and the minutes of that meeting recite: “The board examined the personal bonds of the banks acting as depositaries of Missoula county and ordered same returned as the deposits were fully covered by surety bonds.” At the same time the bond in controversy was indorsed: “Canceled and returned. R. W. Angevine, Chairman of the Board,” and was delivered to the treasurer, with directions to return it to the bank, which was done. The bond with this indorsement upon it was exhibited by the bank to each of the sureties who was informed that he was released, or to that effect, but some time thereafter the bond was returned to the treasurer by tbe bank without tbe knowledge or consent of any of tbe sureties.
Tbe bond of tbe Maryland Casualty Company expired on November 15, and immediately before tbat date tbe bank was informed tbat tbe treasurer would withdraw bis entire deposit, unless satisfactory security was forthcoming. Thereupon tbe bank delivered to tbe treasurer county warrants of tbe value of $21,181.68, and tbe deposit was permitted to remain in tbe bank.
On November 28 tbe county commissioners held a meeting, and tbe following proceedings were bad, as disclosed by tbe minutes:
“Tbe board examined tbe bond of tbe American Bank & Trust Company, one of tbe depositories of Missoula county, and accepted said bond and approved tbe same, as to tbe sufficiency of tbe sureties thereon, and tbe minute entry of July 21, 1923, is corrected to conform hereto.
“It was moved by Chairman Angevine, and seconded by Commissioner Watson, tbat tbe said bond be accepted and approved.
“Motion carried.”
It is conceded that these entries refer to tbe bond in controversy, and that tbe action taken by tbe board was without tbe knowledge or consent of tbe sureties.
On December 12 tbe chairman of tbe board addressed to defendant Dragstedt tbe following letter:
“Dear Sir: This is to give you notice tbat tbe county of Missoula, acting through its board of county commissioners, on tbe 28th day of November, 1923, formally approved and accepted tbat certain bond of date March 24, 1923, on which you appear as surety and which was given by the American Bank & Trust Company to tbe treasurer of Missoula county, and tbat by reason of said action in approving tbe same you are therefore held liable and fully responsible for the amount thereon for which you have signed.
“Yours very truly,
“Bi. W. Angevine,
“Chairman Board of County Commissioners.”
On January 22, 1924, the following notice was served upon each of the sureties:
“Mr. G. F. Peterson, Mr. A. J. Gibson, Mr. J. T. La Casse, Mr. Chas. R. Dragstedt:
“Gentlemen: It has been called to the attention of the board of county commissioners of Missoula county that the bond furnished by the American Bank 8s Trust Company, a corporation of Missoula, Montana, covering the deposit of county money made in said bank, which bond was dated March 24, 1923, and expires on the 31st day of March, 1925, upon which you have signed as a surety in the sum of $25,000 each, that official notice was not properly served upon you of the action taken by the board of county commissioners upon .said bond.
“Now, therefore, you are hereby given a notice that said bond, together with sureties thereon, in the amounts above named, was finally approved on the 28th day of November, 1923, and that each and every one of you are held by said Missoula county as such sureties in the amount for which you have individually signed.
“By order of the board of county commissioners of Missoula county.
“[Seal] W. J. Babington,
“Clerk of the Board of County Commissioners.”
Three days later (January 25, 1924), the bank failed in business, was closed by the proper authorities and thereafter a receiver was appointed to wind up its affairs.
This action was instituted to recover on the bond the amount of the public funds in the bank on the day it closed. In the complaint plaintiffs allege that the bond in controversy was approved by tbe board on April 5 and November 28, 1923. In the answer defendants deny that it was ever approved at any time. The trial court concluded that it was not approved prior to November 28 and that it never became a binding obligation. A judgment was rendered and entered in favor of the defendants, without prejudice, however, to the right of the plaintiffs to proceed against the bank and receiver in an appropriate action. From that judgment plaintiffs appealed.
The authority to approve a depositary bond is lodged ex- clusively in the board of county commissioners — the entity (Commissioners v. McCormick, 4 Mont. 115, 5 Pac. 287; Williams v. Board, 28 Mont. 360, 72 Pac. 755; O’Brien v. School District, 68 Mont. 432, 219 Pac. 1113), and the approval by the chairman alone would be ineffective for any purpose (Commissioners v. McCormick, above).
The statute which prescribes the general duties of the board provides: “The board of county commissioners must cause to be kept: A ‘minute book’ in which must be recorded all orders and decisions made by them, and the daily proceedings had at all regular and special meetings.” (Sec. 4461, Rev. Codes 1921.) In addition thereto, the depositary law (Chap. 89, Laws, of 1923, above) provides: “It shall be the duty of the board of county commissioners # * * upon the acceptance and approval of any of the above mentioned bonds or securities, to make a complete minute entry of such acceptance and approval upon the record of their proceedings.”
The record discloses that the board was in session on April 5 but the minutes of that meeting do not make mention of this bond or its approval; indeed, the only reference to its approval is found in the minutes of the meeting of November 28 and subsequently.
At the trial, and over the objections of defendants, parol evidence was admitted pro■ forma, to the effect that the bond was approved by the board on April 5; the court reserving its final decision as to the admissibility of the evidence until the close of the trial. The record fails to show any specific ruling, but from the conclusion reached by the court it is made manifest that the oral testimony touching the approval was rejected either upon the theory (a) that it was not admissible, or (b) upon the theory that the evidence in its entirety preponderates in favor of the conclusion that the bond was not approved prior to November 28.
(a) It is the contention of defendants that parol evidence was not admissible to show that the bond was approved on April 5, and the decision of this court in State v. State Board, 56 Mont. 413, 460, 185 Pac. 708, 186 Pac. 697, to that effect is cited. It is insisted that, if the rule is properly applicable to the state board of examiners, it should be applied with full force and vigor to the board of county commissioners in approving a depositary bond, in view of the specific requirement of Chapter 89, Laws of 1923. However, the language of this court referred to above was employed in a case in which there was a minute entry concerning the subject of the controversy, and it is unquestionably the rule that, where a record is made, parol evidence is not admissible to vary or contradict it. (Montana Ore Pur. Co. v. Maher, 32 Mont. 480, 81 Pac. 13.)
Whether, in view of the command of Chapter- 89, Laws of 1923, it is competent to introduce oral testimony to show an approval, where the minutes of the board meeting are altogether silent upon the subject, is a matter we need not stop to consider further than to observe that the authorities appear to be in hopeless conflict with respect to the matter. For the purpose of this appeal only we adopt the contention of plaintiffs, and assume that the evidence was admissible.
But it does not suffice for plaintiffs to say that the trial court may have rejected the oral evidence upon the theory that it was not admissible, they must assume the burden of showing that the record will not sustain the conclusion of the court upon any admissible theory. (Dover Lumber Co. v. Whitcomb, 54 Mont. 141, 168 Pac. 947.)
(b) Assuming that the court gave due consideration to the oral testimony, the question then arises: Will the record sustain the conclusion that the bond in controversy was not approved prior to November 28, 19231
When the court came to formulate its conclusions, it was confronted with this situation: Each of the three commissioners had testified that the bond was approved by the board at its meeting on April 5. The trial of this cause commenced on April 24, 1925, so that more than two years had elapsed, and thirty or more meetings of the board had been held, between April 1, 1923, and the date of the trial. The court’s conclusion does not imply that any of the commissioners willfully testified falsely. In weighing the testimony the court could properly consider the fallibility of human memory and the improbability that the commissioners could remember, with any degree of accuracy, every transaction had in the numerous board meetings, or any particular transaction had in a meeting held more than two years prior to the time when the testimony was given. At best, the witnesses could speak only from their recollection, and, as opposed to their recollection of what transpired, were these circumstances:
If the bond were approved on April 5, the law imposed upon the board the duty to make a complete record of the approval in the minutes, and the law raises the presumption that whatever duty was present was performed. (Sec. 10606, Rev. Codes.) .Hence, when it was disclosed that the minutes of April 5 were silent upon the subject, the court might well treat the omission as strongly indicative of the fact that no action upon the bond had been taken at that time.
The treasurer testified that deposits were made between April 5 and July 21 in reliance upon this bond, but the record discloses that the amount of the deposit on April 5 was decreased constantly thereafter by withdrawals, until on July 21 it amounted to less than $16,000, and was amply secured by the Maryland Casualty Company bond.
On July 21 the board ordered all personal bonds of depositaries returned, and the bond in controversy was marked ‘£ Canceled and returned,” and was, in fact, returned to the bank. The minutes of that date indicate a board policy, disclosed more fully in the evidence, to require surety company bonds or public securities, and to reject personal bonds. But with respect to this particular bond in controversy, the commissioners testified that the security was not satisfactory; that is to say, that the property statements required of the sureties were not satisfactory; that this was one reason for returning this bond; and that it was the intention of the board not to rely upon it as security for the public funds deposited in the bank. The evidence discloses further that all deposits made after July 21 and up to November 14 were made in reliance solely upon the Maryland Casualty Company bond; that the deposits made between November 15 and November 21 were in reliance solely upon the security furnished by the county warrants; and that at no time between those dates did the total deposit amount to as much as the value of the warrants.
On November 28 the board solemnly declared by its record that it had approved this bond on that day, and the statement was reiterated on December 12 by the chairman of the board in his letter to defendant Dragstedt, and again reiterated by the board on January 22, 1924, in the notice served upon the sureties. It is especially worthy of note that there is not a reference in any of these documents to the meeting of April 5; no pretense that the bond in controversy had ever been approved prior to November 28.
This is an action at law, and it is the rule in this jurisdie tion that the judgment of the trial court will not be reversed for insufficiency of the evidence, if there is any substantial evidence to support it. (Torgerson v. Stocke, 72 Mont. 7, 230 Pac. 1096.)
In view of this record evidence, it cannot be urged seriously that the trial court was not justified in concluding that the bond was never approved prior to November 28, 1923.
But plaintiffs insist that, even though the bond was not approved, it was nevertheless binding upon the sureties, or, if not binding upon all of them, it was at least binding upon defendants Peterson and La Casse.
Upon the first proposition counsel for plaintiffs cite section 484, Revised Codes of 1921, as follows: “Whenever an official bond does not contain the substantial matter or conditions required by law, or there are any defects in the approval or filing thereof, it is not void so as to discharge such officer or sureties; but they are equitably bound to the state or party interested; and the state or such party may, by action in any court of competent jurisdiction, suggest the defect in the bond, approval, or filing, and recover the proper and equitable demand or damages from such officer and the persons who intended to become and were included as sureties in such bond.”
This statute has been in effect since 1895 (sec. 1066, Pol. Code 1895), and by its terms applies only to official bonds. A depositary of public funds is not an officer, and a depositary bond is not an official bond within the meaning of that statute.
In Compton v. Marengo County Bank, 203 Ala. 129, 82 South. 159, it is said: “It is manifest, we think, that a depository, qualified as the Act prescribes, is not a public officer; is not merely a county treasurer by another name. Under that Act a depository is but a contractee. The depository pays the county interest on the daily balances, and engages to keep and pay out the funds lawfully committed to its care. The depository can receive no compensation other than the advantage derived from having the deposit. In fact, the theory of the Act in this respect is that the depository pays the county for the privilege of having the deposit. No term is provided for an office or officer. * * * Indeed, in the light of our governmental history, it is not perceivable how a corporation could be constituted a public officer. The bond exacted by the Act contemplates only the ‘safety of said deposits.’ It is not an official bond in the sense such assurances are exacted and given to secure generally the performance of all the official duties a public officer is required to perform or discharge.” Other authorities sustaining this view will be found cited in 18 C. J. 579.
But counsel for plaintiffs insist that the provisions of see- tion 484 above are made applicable to a depositary bond by the terms of section 503, Bevised Codes of 1921.
Section 503 appeared originally as section 1084, Article IX, Chapter VII, Political Code of 1895, and read: “The provisions of this article apply to> the bonds and undertakings of receivers, executors, administrators and guardians.” Article IX was entitled “Bonds of Officers.” In 1899 an attempt was made to amend section 1084 by adding the following: “and to all bonds and undertakings required by law to be given and approved by any court, judge, board, person or body, and, except as to requirements of such approval, the provisions shall apply to all bonds given or required by law to be given in attachment proceedings, criminal actions or pToeeedings, bail bonds, appeal bonds, and all bonds given or required to be given in any legal proceedings or action in any court of this state” (Laws of 1899, p. 79); but the amendment was declared to be invalid by this court in Russell v. Chicago, R. & Q. Ry. Co., 37 Mont. 10, 94 Pac. 488, 501. While the decision in that case dealt only with an appeal bond, the same reason for holding the amendment of 1899' invalid as to an appeal bond would apply equally to a depositary bond.
In 1907 the legislature authorized the appointment of a commissioner to codify the then existing laws of this state, but expressly withheld from the commissioner the authority to include any Act or part of Act declared invalid by the supreme court. (Chap. 85, Laws of 1907.) In the prepara tion of the Codes of 1907 the commissioner inadvertently included the amendment of 1899 above, which had been declared invalid, and the section with the invalid amendment appeared as section 412, Revised Codes of 1907. In 1909 the legislature declared: “The division and arrangement into Codes, parts, titles, chapters, articles and sections of the Revised Codes of Montana of the year 1907, as reported by the code commissioner, appointed under the authority of Chapter 85 of the Laws of the Tenth Legislative Assembly of the state of Montana, are hereby approved, confirmed, legalized and made effectual and valid,” etc. (Chap. 1, Laws of 1909.)
Bearing in mind that the legislature of 1907 had declared that any provision held to be invalid should not be included in the Codes; that the amendment of 1899, above, had been declared' to be invalid before the compilation was completed, and that the invalid provision was included through inadvertence, it cannot be assumed that by the very general language employed in adopting the Codes of 1907 the legislature intended" to approve a provision which the commissioner had been forbidden to include in the Codes1.
There is not anything in the language employed in Wheeler & Hotter Merc. Co. v. Moon, 49 Mont. 307, 141 Pac. 665, inconsistent with the views here expressed. An entirely different situation was presented in that case. It dealt with the codification of 1907 only so far as it comprised statutes which were in full force and- effect at the time the Codes of 1907 were reported to, and acted upon by, the legislature of 1909.
In 1919 the legislature authorized the appointment of a commissioner to codify the laws in force at the conclusion of the seventeenth session of the legislative assembly, and required the commissioner to report all “inconsistencies, ambiguities, omissions, contradictions and imperfections” in the Codes of 1907, etc. (Chap. 195-, Laws of 1919; Chap. 109, Laws of 1921.) In reporting the Codes of 1921 the commissioner included section 412, Revised Codes of 1907, as section 503, Revised Codes of 1921, but with the notation that so much of it as was comprised in the amendment of 1899 had been declared to be invalid.
By Chapter 54, Laws of 1925, it is declared:
“Section 1. That the Revised Codes of Montana of 1921 as compiled, numbered and arranged by the Code commissioner appointed by authority of Chapter 195 of the Laws of the Sixteenth Legislative Assembly of 1919, and as certified to by said Code commissioner are hereby, as to both form and substance, approved, legalized and adopted as the laws of Montana,” etc.
“Section 2. All changes made by said Code commissioner in the language or arrangement of any law of the state embodied in said Codes and all additions of new sections made by said commissioner to said Code, are hereby legalized, approved and given validity.”
It follows that so much of section 503, Revised Codes of 1921, as includes the amendment sought to be made in 1899 was never in effect prior to the approval of Chapter 54, Laws of 1925.
But there is ample reason for holding that the bond in con- troversy must have been approved in order to fix liability upon the sureties. The depositary law declares that a depositary bond must be approved by the board of county commissioners, and prescribes the manner in which the approval shall be evidenced. It then provides that, until such a bond is approved, no deposit shall be made in the depositary offering the bond. This is a special statute governing a particular subject, and, even if there were general statutes inconsistent with it, the special Act would control. (Stadler v. City of Helena, 46 Mont. 128, 127 Pac. 454; State v. Certain Intoxicating Liquors, 71 Mont. 79, 227 Pac. 472.)
Under the very terms of the depositary law a depositary bond is not effective until it is approved, and this is the construction placed upon similar provisions elsewhere. (Commonwealth v. Caldwell, 224 Pa. 103, 73 Atl. 219; St. Louis County v. American L. & T. Co., 67 Minn. 112, 69 N. W. 704; Franklin Bank v. Cooper, 36 Me. 179; 18 C. J. 586.)
Since the bond in controversy had not been approved, the return of it on July 21 amounted to a rejection, and, after the sureties had been informed thereof, it was not within the power of the board on November 28 to approve it and bind the sureties. A bond is a contract, and requires the assent of both parties to the same thing at the same time. (Polich v. Severson, 68 Mont. 225, 216 Pac. 785.)
In the reply plaintiffs undertook to plead an estoppel as against the defendants Peterson and La Casse. It is alleged that they were directors of the bank, and as such knew that the county “treasurer was depositing money in said bank in reliance upon said bond, and said defendants made no objections thereto and made no effort to terminate their obligation thereon.”
When defendant La Casse was upon the witness-stand, he was asked on cross-examination whether he was a director of the bank in the fall of 1923. An objection to the question was sustained, and counsel for plaintiffs then made the following offer of proof: “Let the record show that we offer to prove, by this witness, as a part of his cross-examination, that he was, during the year 1923, a director of the American Bank & Trust Company, and acted as such and participated in the meetings of that board, held from time to time during the year 1923, and particularly, that he participated in meetings held on the 30th of November, 1923, and on such occasions' the affairs and conditions of the bank were discussed by the board of directors.” The same proceeding was had with reference to the defendant Peterson and substantially the same offer of proof was made as to him.
We are of the opinion that the pleading is not sufficient to constitute an estoppel; but, in any event, the offered evidence falls far short of the allegation. It does not go further than to show that these two defendants were directors of the bank and attended meetings of the bank directors during 1923. Later, during the trial, the evidence narrated in the offers was admitted as a part of the testimony of the witness Harrah, assistant cashier of the bank. It is elementary that error cannot be predicated upon the exclusion of evidence at one stage of a trial, if the same evidence is admitted thereafter. (Ackley v. Phoenix Ins. Co., 25 Mont. 272, 64 Pac. 665; Taylor v. Malta Merc. Co., 47 Mont. 342, 132 Pac. 549.)
Rehearing denied February 23, 1926.
The judgment is affirmed.
‘Affirmed.
Mr. Chief Justice 'Callaway and Associate Justices G-alen, Stark and Matthews concur.
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] |
Opinion:
PER CURIAM.
This is an attempted appeal by the state from a judgment of the district court of Lewis and dark county sustaining an objection of the defendants to the introduction of evidence in support of the allegations of the information, and dismissing the action.
If the state has an appeal it is under the provisions of sub- division 1 of section 12108, Revised Codes of 1921, which provides, in part, that an appeal may be taken by the state from a judgment for the defendant on a demurrer to an information. The attorney general argues that the objection of the defendants to the introduction of evidence was in effect a demurrer to the information, and in support of this contention he relies upon State v. Vinn, 50 Mont. 27, 144 Pac. 773. On the other hand, the defendants assert that this court is without jurisdiction to entertain the appeal. The jurisdiction of the court having been challenged, it is our duty to see whether we have in fact the right to proceed.
Section 11901, Revised Codes of 1921, provides: “Upon considering the demurrer, the court must give judgment, either allowing or. disallowing it, and an order to that effect must be entered upon the minutes.” The order sustaining the demurrer constitutes the judgment. (State v. Libby Yards Co., 58 Mont. 444, 193 Pac. 394.) The statute here contemplates two acts: (1) giving judgment, and (2) entering the same upon the minutes; and an appeal will not lie until the judgment is entered. That this is so appears from the express language of section 12110, which declares: “An appeal may be taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party.”
The record on appeal in a criminal case, says the statute, shall consist of the judgment-roll as defined in section 12074 of the Code, a copy of the notice of appeal, and all bills of exception settled and filed in the case. (Sec. 12045; Rev. Codes 1921.) It is manifest that section 12045 must be construed with section 12074 and by reference to that section it is seen that the following papers constitute the judgment-roll: “1. The indictment, or information, and a copy of the minutes of the plea or demurrer. 2. A copy of the minutes of the trial.. * * * 4. A copy of the judgment.”
The transcript will be searched in vain for a copy of the judgment in this action. As no judgment appears in the record we are without jurisdiction to proceed, and therefore are not permitted to consider whether the action of the court in sustaining an objection to the reception of . evidence was in legal effect a judgment for the defendants as upon a demurrer to the information. We have not overlooked State v. Carmichael, 62 Mont. 159, 204 Pac. 362. That case was decided upon the provision of section 9347, Revised Codes of 1907, which section has been superseded by section 12045, supra.
The appeal is dismissed.
Dismissed.
|
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Opinion:
PEE CUBIAM.
Plaintiff commenced this action in the district eonrt of Silver Bow county to recover of certain persons, who were doing a stock brokerage business in the city of Butte as Logan & Bryan, the sum of $1,893.96. Logan & Bryan deposited that sum in court, whereupon they were discharged from lia bility and Martin J. Cullerton, as trustee of the estate of William J. McNulty, bankrupt, was substituted for them as a party defendant. Cullerton, trustee, answered, trial followed and judgment went against him. He then perfected an appeal to this court.
This case being in that condition, Cullerton, as trustee, corn menced a proceeding in the district court of the United ■States for the district of Miontana in which he asked that court to enjoin this plaintiff from enforcing the judgment of the district court of Silver Bow county. After proceedings had, the district court of the United States entered a decree in favor of Cullerton, trustee, plaintiff, against Hermann (this plaintiff) defendant, by the provisions whereof this plaintiff is permanently enjoined from in anywise enforcing the judgment obtained 'by him as aforesaid. From that decree the defendant in that action, plaintiff here, has Appealed to the circuit court, of appeals for the ninth circuit. After that Cullerton, trustee, appellant, filed in this court his transcript on appeal. The plaintiff has moved to dismiss the appeal.
Cullerton, as trustee, came voluntarily into the action begun by plaintiff against Logan & Bryan, undoubtedly assented to their action in depositing the money with the district court of Silver Bow county and took part in the litigation respecting it. He never questioned the jurisdiction of that court until it decided against him; then he appealed to this court to be relieved of the judgment, and then commenced an action in another forum to nullify that same judgment. His actions say, in effect, that, if he is successful in the circuit court of appeals, this court may do as it pleases; it will not matter to him. But if he loses there, will this court graciously relieve him nevertheless? This court will not suffer itself to be made a party to the scramble which the appellant has created.
The motion to dismiss the appeal is sustained.
Dismissed.
|
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] |
MR. JUSTICE HOLLOWAY
delivered the opinion of the court.
On September 2, 1924, W. A. Bruekert and Ella Bruckert filed in the district court of Carbon county their joint application for the adoption of James Reed Thompson, a minor. The application recites that W. A. and Ella Bruckert are husband and wife, residents of Carbon county, each over the age of twenty-one years; that James Reed Thompson is of the age of six years and five months, of the same race as the petitioners, and for more than a year has been in the custody of the petitioners with the approval of his father, who consents to the adoption; that Maggie Thompson, the mother of the child, resides at Portland, Oregon, and “has abandoned the said minor child for more than one year.”
The petitioners, the minor child, and Thomas J. Thompson appeared in court. Thomas J. Thompson, who designates himself father of the child, gave his consent, in writing to the adoption, and the petitioners executed and filed the agreement required by section 5861, Revised Codes of 1921. Thereupon the court made and caused to be entered an order of adoption, which, among other things, provides that the minor child shall assume the name James Reed Thompson Bruckert.
The present proceeding was instituted by Maggie Thompson to secure a writ of review, and by that means an annulment of the order .of adoption. The writ was issued, and in response thereto the clerk of the district court has certified to us the complete record of the adoption proceeding. This record does not include the consent of the mother of the child, and since such consent, if given, must have been in writing and would have constituted a part of the record, its absence is conclusive evidence that it was not obtained — indeed, it is conceded that the mother did not give her consent. The record also fails to disclose that any notice of the pendency of the adoption proceeding was ever given; on the contrary, it appears affirmatively that notice could not have been given, for the application, consent and agreement referred to were filed and the order of adoption was made on the same day.
It is the contention of the mother that, since she did not consent to the adoption and did not have any notice of the pendency of the proceeding, the court acted without jurisdiction in making the order.
So much of section 5859, Revised Codes, as is material here, reads as follows: “A legitimate child cannot be adopted without the consent of its parents, if living; nor an illegitimate child without the consent of its mother, if living; except that consent is not necessary from a father or mother deprived of civil rights, or adjudged guilty of adultery or of cruelty, and for either cause divorced, or adjudged to be an habitual drunkard, or who has been judicially deprived of the custody of the child on account of cruelty or neglect, or who has, in this or any other state, willfully abandoned a child, or caused the same to be maintained in any public orphans’ asylum for one year without contributing to the support of said child; neither is the consent of anyone necessary in the case of an abandoned child,” etc.
Section 5861 provides that every person whose consent is necessary, if within or a resident of this state, must appear in court and give consent in writing, or, if such person is not within or a resident of this state, then the consent in writing, duly proved or acknowledged, must be filed in court at the time the application for adoption is made.
From these provisions it follows that the consent of the . mother was indispensable, unless she comes within one of the exceptions mentioned in section 5859. The only attempt made to bring her within any of those exceptions, and thereby obviate the necessity of securing her consent, is found in the allegation of the application that she had abandoned the child. If this allegation be true, her consent was not necessary; but before a valid order of adoption could be made without her consent, the court must have determined that she had abandoned the child, and to adjudicate that she had abandoned her own offspring, without notice to her or an opportunity to appear and defend against the charge, is a doctrine that will not be countenanced.
In Schlitz v. Roenitz, 86 Wis. 31, 39 Am. St. Rep. 873, 21 L. R. A. 483, 56 N. W. 194, the court said: “The contention that the county court could, without notice to the plaintiff or opportunity to him to defend against the charge of abandonment, grant 'an order depriving the plaintiff of his most sacred natural rights in respect to his child, so jealously guarded and protected by the laws, offends against all our ideas respecting the administration of justice, and is opposed to the principles which lie at the foundation of all judicial systems not essentially despotic in their character and methods of procedure.”
It is an elementary and fundamental principle of law that notice to a party whose rights are to be affected by a judicial proceeding is an essential element of due process. (12 C. J. 1228.) In Windsor v. McVeigh, 93 U. S. 274, 277, 23 L. Ed. 914, the court, speaking to this question, said: “Whenever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal. * * * Until notice is given, the court has no jurisdiction in any case to proceed to judgment, whatever its authority may be, by the law of its organization, over the subject matter.”
It follows that notice to the mother was indispensable, and, unless she had notice, the order of adoption is void. (State ex rel. Sheedy v. District Court, 66 Mont. 427, 213 Pac. 802.) The decided cases sustaining this rule are too numerous to be cited here. They will be found collected in a note to 24 A. L. R. 416, 422.
In the order of adoption the court recited: “That the said petitioners and all persons whose presence is necessary have been present at this hearing,” etc. From this recital defendants insist that the presumption must be indulged that the mother was "present in court when the hearing was in progress, and hence had actual notice of the •pendency of the proceeding. 'Whether the recital above would be sufficient to withstand a direct attack upon the order if the court had been' exercising its general jurisdiction is a question we need not stop to consider.
The legal adoption by one person of the offspring of another was unknown to the common law. In this state, and in the states of the Union generally, it is the creature of statute, and, though the proceeding here is had in our district courts, the jurisdiction is conferred by the statute, is exercised in a special manner and not according to the course of the common law. Under these circumstances the rule is uniform that the presumption in favor of the acts of a court of general jurisdiction does not obtain (Galpin v. Page, 18 Wall. 350, 367, 21 L. Ed. 959); on the contrary, every fact essential to the exercise of the special jurisdiction conferred must appear from the record.
“It is an established rule that when a court of general jurisdiction has special and statutory powers conferred upon it, which are wholly derived from statute, and not exercised according to the course of the common law, or are not part of its general jurisdiction, it is to be regarded as quoad hoc an inferior or limited court, and its judgments to be treated accordingly, that is, its jurisdiction must appear on the record and cannot be presumed.” (1 Black on Judgments, sec. 279; Morse v. Presby, 25 N. H. 299; Furgeson v. Jones, 17 Or. 204, 11 Am. St. Rep. 808, 3 L. R. A. 620, 20 Pac. 842; Ex parte Clark, 87 Cal. 638, 25 Pac. 967; Vaughan v. Hubbard, 38 Idaho, 451, 221 Pac. 1107; Ex parte Parnell (Okl. Cr. App.), 200 Pac. 456; 1 Freeman on Judgments, 5th ed., sec. 389; 15 C. J. 831; 15 R. C. L. 883.)
Onr attention is directed to In re McKeag’s Éstate, 141 Cal. 403, 99 Am. St. Rep. 80, 74 Pac. 1039, wherein a recital in an order of adoption somewhat similar to the recital in the order before us was held to be sufficient to show the presence in court of the parent, the father of the child; but in that proceeding the father actually gave his consent in writing to the adoption, and the order recited “that the petitioner and said minor child and all other persons whose consent is necessary have appeared herein.” Furthermore, the attack there was made in a collateral proceeding, and whether under like circumstances we would reach the same conclusion is not material now. It is sufficient to say that the decision does not reflect upon the question before us.
While our adoption statute does not provide for notice in express terms, by necessary implication it requires that notice be given to the parents even though they may be nonresidents of this state. (1 Cal. Jur. 429.)
It is insisted by defendants that the jurisdiction of the district court could have been tested by habeas corpus proceeding, and therefore the writ of review ought not to have been issued. It is true that in this state a writ of review issues only in case there is not an appeal, or, in the judgment of the court, any other plain, speedy and adequate remedy. (Sec. 9837, Rev. Codes.) The order of adoption is not appealable (sec. 9731), hence the inquiry: Is the remedy by habeas corpus plain, speedy and adequate?
The order of adoption, if permitted to stand, fixes the legal status of the child; it changes the relationship of the child to its natural parents (sec. 5864), establishes a new relationship as between it and the foster-parents, affects the course of descent, and, as in this instance, gives the child a new name (sec. 5863). It must be conceded that a judgment in habeas corpus could not go further than to determine the legality of the custody of the child. It could not obliterate the record made in the adoption proceeding, which is the very end sought to be accomplished by the writ of review. For this, reason we hold that the remedy by habeas corpus is not adequate, and that the writ of review was issued properly.
In passing, we direct attention to the fact that in this state only persons who are, or who may become, citizens of the United States may adopt a minor child (see. 5856, Rev. Codes), and that it does not appear from the record before us that either W. A. or Ella Bruekert possesses this necessary qualification.
It is our conclusion that by reason of the failure to secure the consent of the mother, or, in lieu thereof, to give notice to her of the pendency of the adoption proceeding, the order of adoption as to her is void, and accordingly it is annulled.
Order annulled.
Mr. Chief Justice Callawat and Associate Justices Galen, Stark and Matthews concur.
|
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] |
PER CURIAM.
The attorneys for petitioner, after the cause .had been argued, filed in this court a statement that the district court of Richland county, in which complainant was convicted of the crime of manslaughter, had granted him a new trial; the question submitted for decision having thus become moot, it is ordered that the application for writ of habeas corpus be dismissed.
Mr. Wellington D. Rankin and Mr. L. V. Ketter, for Complainant.
Mr. L. A. Foot, Attorney General, for the State.
|
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MR. JUSTICE GALEN
delievered the opinion of the court.
This action was instituted by the plaintiff as a citizen, resident and qualified elector of Custer county to secure an injunction restraining the defendants from the threatened issuance and sale of bonds against the county of Custer to the amount of #50,000, intended to be used for the construction of a steel bridge across the Powder River, which river is now well known in western rhyme and song. After issue joined, the case was submitted to the court upon an agreed statement of facts. The court found in favor of the defendants and judgment was entered accordingly. The appeal is from the judgment.
The regularity of the election held authorizing the issuance of the bonds and the constitutionality of the statute providing for the submission of the question to the people are by the plaintiff attacked. However, since the allegations of the complaint and the statements contained in the agreed facts do not show a right of action vested in the plaintiff on any theory, this court is not in position to consider the questions argued and presented on the appeal. In his complaint he alleges that he “is now, and has been for several years last past, a citizen and resident and duly qualified and registered elector of Custer county,” and in the agreed statement of facts his right of action is again predicated on a similar recital. It does not appear that he is either a taxpayer, or that he was wrongfully, or otherwise, denied a right to vote at the election. Consequently he is in no position to complain. It does not devolve upon this court to determine the constitutionality of the law or decide the merits of the questions involved, where the complainant does not show that he has been, or is likely to be, injured. The constitutionality of a statute can never be called in question by a person whose interests have not been, or are not about to be, prejudicially affected by its operation. (State ex rel. Holliday v. O’Leary, 43 Mont. 157, 115 Pac. 204; Potter v. Furnish, 46 Mont. 391, 128 Pac. 542; Barth v. Pooh, 51 Mont. 418, 155 Pac. 282; Pohl v. Chicago, M. & St. P. Ry. Co., 52 Mont. 572, 160 Pac. 515.)
To maintain an action the plaintiff must show that he has a right to be enforced or a wrong to be prevented or redressed. (Sec. 8997, Rev. Codes 1921.) One possessing a right may enforce it by appropriate action, even though his motives are questionable (Simonsen v. Barth, 64 Mont. 95, 208 Pac. 938), but he is without standing where it is not shown that his rights have been, or are about to be, invaded. An action must be prosecuted in the name of the real party in interest, with certain exceptions, not applicable here (sec. 9067, Rev. Codes 1921), and failure to show rights invaded or threatened with invasion leaves the plaintiff with no status in court (Kelly v. Gullickson, ante, p. 67, 241 Pac. 624). To invoke the jurisdiction of a court of justice it is essential that there be involved a genuine, existing controversy calling for the adjudication of present rights involved. The courts are not constituted nor operated for the vindication of parties with respect to their conception of the correct application of the law, and it does not devolve upon them to decide questions not arising in the due course of litigation simply for the gratification of the parties or others. (1 Cal. Jur. 335.)
Rehearing denied February 23, 1926.
Since the plaintiff has no standing in court, we would not be justified in giving serious consideration to the questions argued on this appeal. Had a general demurrer been interposed to the complaint in the first instance, it should have been sustained.
For the reasons stated, the judgment is affirmed.
Affirmed.
Mr. Chief Justice Callaway and Associate Justices Holloway, Stark and Matthews concur.
|
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PER CURIAM.
Pursuant to stipulation of counsel, the appeal in this cause is dismissed.
|
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MR. CHIEF JUSTICE CALLAWAY
delivered the opinion of the court.
This is an appeal from a judgment rendered in two actions which were consolidated for the purpose of trial. We shall, for convenience, refer to these as the first and second actions.
In the first action plaintiff sought recovery of the sum of $1,017 with interest, claiming that sum as a balance due for work, labor and services in building a water reservoir upon plaintiff’s land for defendant. (The land was leased from plaintiff by defendant.) In its answer defendant admitted the employment of plaintiff and claimed the balance due to be $383 only. The defendant interposed a counterclaim based upon an alleged breach of a covenant to convey the land on part of plaintiff.
In the second action the complaint consisted of two causes of action. Under the first the plaintiff sought to recover $3,380.67, alleged to be due him by virtue of a contract in writing whereby defendant, in consideration of an oil and gas lease executed by plaintiff to defendant upon plaintiff’s land, engaged to pay off various liens, mortgages and taxes thereon. The second cause of action set forth in this complaint need not be considered as a jury found against plaintiff thereon.
Defendant, answering the second action, set up three defenses. The first .defense admitted the execution of the contract in so far as it related to the payment of a mortgage in the sum of $2,300; admitted an agreement to pay all taxes which were liens upon the land. The second defense need not be noticed as it related to the second cause of action.
The third defense, together with a counterclaim, was directed to the entire complaint. Defendant alleged the employment of plaintiff to build'a reservoir and placed valuation upon the employment; alleged payment of various sums of money in consideration of the conveyance to it of oil and gas interests in plaintiff’s land; alleged that such interests are without value by reason of the fact that plaintiff had given a prior lease upon the land which had not been canceled. Upon the counterclaim defendant sought to recover $2,298.86 and interest.
During the trial it was stipulated that plaintiff’s causes of action should be deemed merged and consolidated into one complaint, setting forth three causes of action, and that the answers and counterclaim of the defendant in both actions should be deemed merged and consolidated into one answer, and counterclaim; and in the event that inconsistency between the answer and counterclaim interposed in the first action and that interposed in the second should appear, the latter should be controlling; also that the replies should be merged and consolidated into one.
The jury found for the plaintiff upon the cause of action stated in the first action, upon the first cause of action stated in the second action, and upon the counterclaim; found in favor of the defendant upon the second cause of action set forth in the second action. Judgment was entered accordingly. The defendant moved for a new trial which was denied. Thereafter the defendant appealed.
Counsel for defendant say that as the verdict of the jury in the first action was based upon conflicting evidence they will not undertake to overthrow it. They confine themselves to a discussion of the issues raised by the pleadings and evidence in the second action, but as the two were consolidated the ultimate result reached in the first is dependent upon the defense and counterclaim interposed in the second.
The specifications of error, when analyzed, say counsel for defendant, present two main issues as follows: (1) What is the proper construction of the agreement set forth in plaintiff’s complaint and defendant’s answer in the second action? (2) Was there a breach by plaintiff of his covenant of good right to convey?
The plaintiff on his part makes cross-assignments of error, which he asks us to consider under the provisions of section 9751, Revised Codes of 1921, which requires this court to consider, upon a record of this character, the errors assigned by respondent as well as those by appellant and to reverse or affirm the cause according to the substantial rights of the parties, as shown by the record. This we shall do, taking into consideration also section 8805, Revised Codes of 1921, which provides in part: “The supreme court may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had.”
1. The facts are that on November 11, 1922, the plaintiff and Ms wife executed to defendant an oil and gas lease on 320 acres of land for a term of five years from date, “and as long thereafter as oil, gas, hydrocarbons, or minerals is produced therefrom in commercial quantities, unless terminated earlier as hereinafter provided.” The lease reserved to the lessors the usual royalties. Other provisions will be referred to later. Simultaneously with the execution of this lease the defendant made and delivered to the plaintiff the agreement which is in controversy. By its terms it was acknowledged that the true consideration for the lease was that defendant agreed “to pay off and discharge, at its own expense, delinquent taxes upon said lands for the years 1920 and 1921, and also pay off and discharge that certain mortgage for $2,300 together with the unpaid interest thereon, which mortgage is now a lien upon said lands.”
The fact is that on February 18, 1918, in order to secure a loan of $2,300, plaintiff had executed his promissory note in that amount payable in five years, with five six per cent interest coupons thereto attached, one of which came due on the first day of March of each year. To secure the payment of the same, plaintiff and his wife executed a mortgage upon the land. At the same time, and as a part of the same transaction, plaintiff executed five additional promissory notes, the amount of which was calculated upon the principal sum of two per cent thereof and these notes were in the sum of $46 each, except the first one, which was for $47.66. These notes were secured by what was called a second or commission mortgage on this same land.
Plaintiff contends that the true intention was, and it was within the contemplation of the parties in making the agreement, that the defendant should pay the second mortgage, as well as the first, and in his complaint he pleaded accordingly. He alleged that the agreement was drawn by defendant’s counsel who represented to him that the agreement, as drawn, expressed the intention of the parties. While admitting the execution of the agreement and its drafting by defendant’s counsel, defendant denied that there ever was any understanding that the second mortgage should be paid by it. The plaintiff did not ask for a reformation of the instrument but stood upon its terms. His counsel said to the court that he was not attempting to vary its terms: “I am attempting to show the circumstances under which it was executed, as an aid in its construction and interpretation. * * * ” In order to substantiate his contention the plaintiff gave testimony tending to show that when the agreement was being discussed, he told Mr. Stevenson and Mr. Murphy, who represented the defend ant, that the amount of the loan upon the land was $2,300, and it bore interest at nine per cent. The mortgage was not produced. The plaintiff knew there were two mortgages, a first and a second, but he did not mention the second mortgage.
It is insisted that as plaintiff advised the defendant’s representatives that the interest was nine per cent, they, especially Mr. Murphy, should have known there was a second mortgage. Mr. Murphy admitted upon cross-examination that when he drew the agreement he was aware of the general practice followed in the locality, under which the mortgagee took two mortgages, one for the principal with interest thereon at six per cent and a second mortgage for two, three or four per cent on the amount loaned, representing a commission on the loan. Mr. Murphy testified that when he was negotiating for the lease he did not know there was a second or commission, mortgage. “Nothing whatever was said by either Mr. or Mrs. McDaniel about there being a second, or commission, mortgage.” This testimony was corroborated by Mr. Stevenson; and it is not asserted by Mr. or Mrs. McDaniel that either ever mentioned the second mortgage. To sum up without further reference to the evidence: Plaintiff contends that as he told Mr. Murphy the mortgage drew interest at nine per cent, whereas it drew but six per cent and as Mr. Murphy knew the custom he should have known the other three per cent was included in a second mortgage. This is too far-fetched. The agreement provided that the defendant should “pay off and discharge that certain mortgage for $2,300, together with the unpaid interest thereon, which mortgage is now a lien upon said lands.” This is plain and unequivocal. It does not require any interpretation. It speaks a definite language. A contract may not be changed or revised under the guise of interpretation. Where a contract is plain and clear in its terms, neither interpretation nor construction is permissible. (Ming v. Pratt, 22 Mont. 262, 56 Pac. 279; Spaulding v. Maillet, 57 Mont. 318, 188 Pac. 377.) When the lan guage employed by tbe parties “is free from ambiguity or uncertainty, it is beyond the power of the court to enlarge or restrict its application or meaning.” (Union Bank & Trust Co. v. Himmelbauer, 56 Mont. 82, 181 Pac. 332.) And when the terms of a contract are plain and unambiguous, resort may not be had to extrinsic circumstances under the- pretense of ascertaining its meaning. (Purdin v. Westwood R. & L. Co., 67 Mont. 553, 216 Pac. 326; Berne v. Stevens, 67 Mont. 254, 215 Pac. 803.)
If through fraud or mistake the writing did not truly express the intention of the parties, it might, upon the application of the one aggrieved have been revised to express that intention (sec. 8726, Rev. Codes 1921), but no such application was made. Upon this phase of the case the judgment cannot stand.
2. We now come to the question whether there was a breach by plaintiff of his covenant of good right to convey. On the 15th of June, 1920, plaintiff and his wife executed to one A. W. Day an oil and gas lease which hereafter will be. referred to as the Day lease. By the terms of the instrument the lessors in consideration of the sum of $1, and of the covenants to be kept, paid and performed by the lessee, granted, leased and let to the lessee certain land, “to have and to hold the same” for the term of two years from the date of the lease, and “as much longer as oil and gas, or-either of them, shall be produced from said land by the said lesseé.” The lessee agreed to yield and pay to the lessor the one-eighth part or share of all the oil which he might obtain and save from the land. Then followed these provisions: “If no well shall be commenced on the land above described within two years from the date hereof, this lease shall become null and void, unless the lessee shall pay to the lessor for further delay a rental of twenty-five cents per acre in advance for each additional year until a well is commenced on said lands. All royalties, delay rentals and other payments which may fall due under this lease shall be paid direct to lessor or be deposited to his credit in Security State Bank of Devon, Montana, which is hereby constituted agent of the lessor with power to receive and receipt for the same. Upon failure of the lessee to make any of the payments above provided for delay in commencing a well on the date upon which the same becomes due, the lessor shall have the right to declare a forfeiture of this lease if such payment be not made within ten days after written notice to pay the same.
“Upon the payment of one dollar at any time by the lessee to the lessor the lessee shall have the right to surrender this lease for cancellation by redelivering the same to the lessor or to the said bank * í:= * his agent therefor, and upon such surrender being made, all payments and liabilities thereafter to accrue by the terms of this lease shall be avoided and extinguished and this lease becomes null and void.”
It is admitted that after accepting the lease from the plaintiff, Day never did anything with respect to it either in the way of development or in paying rentals. The plaintiff did not give to Day any notice of forfeiture, taking the position that, as Day did not drill a well nor pay any rentals, the lease terminated automatically on the fifteenth day of June, 1922.
In the lease to defendant plaintiffs granted, demised and leased to the defendant, “for the sole and only purpose of mining and operating for oil, gas, hydrocarbons, and other minerals,” the land therein described, being the same land embraced in the Day lease. The defendant contends that by the use of the word “grant” in the lease the plaintiff warranted that he had not conveyed the same estate or any part thereof, or any right, title or interest therein to any other person than the defendant and the court so instructed the jury, adding that if the plaintiff had so conveyed said estate, or any part thereof, or any right, title or interest therein to any person other than the defendant prior to the 11th of November, 1922, then the defendant had the right to recover from the plaintiff, damages for the breach of such covenant, even though the covenant were not expressly contained in the lease. We shall proceed upon the assumption that this theory is correct.
The determinative point is, then, whether the lease terminated on June 15, 1922, by reason of the failure of Day to comply with its terms or whether it was necessary for the plaintiff affirmatively to declare a forfeiture.
For informative purposes it will be well to note the fact that the Day lease was executed upon a printed form, a form which was employed to a considerable extent in the Kevin field. It is apparent, too, that it was used generally without reference to the length of the term or to the exploratory period agreed"upon. This serves to explain some of the misunderstandings which confront us. In order to arrive at an understanding of the true intent and meaning of the Day lease it is essential to consider two well-known types of oil and gas leases and the fundamental difference between the two. Indeed, a correct understanding of the question involved here cannot be arrived at without doing so.
These are denominated “or” and “unless” leases in the nomenclature of the oil fields and in legal literature anent the same.. Under the provisions of the “or” type the lessee is obliged to either “drill or pay”; under the “unless” type he is not obligated to do either. In other words, under the first type, if the lessee does not drive a well within the exploratory period fixed he must pay such rental as is prescribed in the lease, and if the rentals be not paid suit to recover them will lie at the instance of the lessor. (Galey v. Kellerman, 123 Pa. 491, 16 Atl. 474; Wills v. Manufacturers’ Natural Gas Co., 130 Pa. 222, 5 L. R. A. 603, 18 Atl. 721; Woodland Oil Co. v. Crawford, 55 Ohio St. 161, 34 L. R. A. 62, 44 N. E. 1093; Northwestern Oil & Gas Co. v. Branine, 71 Okl. 107, 3 A. L. R. 344, 175 Pac. 533.) Failure to drill or pay would not of itself terminate the lease. (Northwestern Oil & Gas Co. v. Branine, supra; Cohn v. Clark, 48 Okl. 500, L. R. A. 1916B, 686, 150 Pac. 467.)
The forfeiture clause was held to be for the benefit of the lessor, who upon default of the lessee could either insist upon a forfeiture or waive it and sue for the rentals due, or as they became due within the fixed term of the lease. (Galey v. Kellerman, supra; McMillan v. Philadelphia Co., 159 Pa. 142, 28 Atl. 220; Woodland Oil Co. v. Crawford, supra.) Until the le.ssor elected to declare a forfeiture, liability for rent continued. (Mathews v. People’s Natural Gas Co., 179 Pa. 165, 36 Atl. 216; Roberts v. Bettman, 45 W. Va. 143, 30 S. E. 95.)
The “or” lease does not terminate short of the period provided in the habendum clause, unless by mutual consent of lessor and lessee, surrender by lessee when that remedy is provided by the terms of the lease, or by forfeiture declared by the lessor. If the lessor desires to insist upon a forfeiture in order to rid his land of the lease it is necessary for him to exercise his option and declare the lease forfeited. This requires affirmative action by the lessor. (Leatherman v. Oliver, 151 Pa. 646, 25 Atl. 309; Bartley v. Phillips, 179 Pa. 175, 36 Atl. 217; Edmonds v. Mounsey, 15 Ind App. 399, 44 N. E. 196; Henne v. South Penn. Oil Co., 52 W. Va. 192, 43 S. E. 147.)
In order to get away from the burdensome provisions of the lease adverted to, oil operators sought to free themselves .from its stringent requirements by inserting in leases what has become known as the surrender clause under which they were privileged to surrender the lease and avoid further liability. But until surrender they 'were still held to their obligation to drill or pay, and lessees frequently found themselves liable for the payment of rentals.
Therefore the second type, or “unless” lease, was devised. The provision that if no well be commenced on the land within a certain period, the lease should become null and void unless the lessee should pay to the lessor for further delay a certain amount per year in' advance for each additional year until a well be commenced, or completed (with occasional verbal changes here and there) became standard. Under this clause the lessee was granted an option to drill or to pay rental, or to do neither as he chose. And under it the lease terminated ipso fado upon the failure to- drill or pay, without0 further liability on the part of the lessee for rentals thereafter accruing. (18 Mich. Law Review, 658; Glasgow v. Chartiers Gas Co., 152 Pa. 48, 25 Atl. 232; Snodgrass v. South Penn. Oil Co., 47 W. Va. 509, 35 S. E. 820; Northwestern Oil & Gas Co. v. Branine, supra; Butcher v. Greene, 50 Ind. App. 692, 98 N. E. 876; Van Etten v. Kelly, 66 Ohio St. 605, 64 N. E. 560; O’Neill v. Risinger, 77 Kan. 63, 93 Pac. 340; Eastern Oil Co. v. Smith, 80 Okl. 207, 195 Pac. 773; Blodgett v. Lanyon Zinc Co., 120 Fed. 893, 58 C. C. A. 79; Hopkins v. Ziegler, 259 Fed. 43, 170 C. C. A. 43.)
In this category the Day lease belongs. By its terms the lessee had an option to commence a well within two years, or to continue the lease in force by paying the stipulated rental. He had the right to terminate the lease at will. First, he might bring it to an end within the term fixed in the habendum clause — two years — by exercising the privilege granted by the surrender clause. Second, he might fail to commence a well within the time limited, or he might fail to- pay any rental in advance.
In the Day lease the lessors were bound to accord the lessee certain privileges, but the lessee did not bind himself to do anything. It is true that if he chose to drill a well and realized production of oil or gas, he then became obligated to pay the lessors royalty, but that is beside the question.
When a contract is optional in respect to one party it is to be construed strictly in favor of the party that is bound and against the one who is not bound. (Eastern Oil Co. v. Smith, supra; Ireland v. Chatman, 87 Olk. 223, 209 Pac. 408.) Not only that, but it is a recognized doctrine in this court that oil and gas leases are to be construed liberally in favor of the lessor and strictly against the lessee. (Thomas v. Standard Dev. Co., 70 Mont. 156, 224 Pac. 870.) In leases of this character time is of the essence of the contract. (Thomas v. Standard Dev. Co., supra; Snider v. Yarbrough, 43 Mont. 203, 115 Pac. 411; Clark v. American D. & M. Co., 28 Mont. 468, 72 Pac. 978.)
Usually oil and gas leases of this type provide a term during which the lease shall extend until terminated, and an exploratory period during which the lessee may drill a well in default of .which the lease shall terminate unless he pays rental. Tjhe Day lease is an anomaly. In an extended search we have not found another like it. Here the exploratory period is coincident with the term of the lease — two years.
"Whether a forfeiture clause may ever serve a useful purpose in a lease of this type we are not. called upon now to consider. In the instant ease it is of no more use than the fifth wheel to a wagon, the uselessness of which we have heard remarked since childhood. A forfeiture clause, we have observed, is for the benefit of the lessor, not the lessee. Can it be possible that when the term of the lease, stated as two years in the habendum clause, has expired, when the lessee has neither drilled nor paid — has done nothing more than to take the lease from the hands of the lessor and put it of record — it still exists? Long after the Day lease expired by limitation the lessors gave to defendant the lease of November 11, 1922. The defendant entered upon the land and made valuable improvements. Incidentally, defendant’s possession of the land has never been disturbed. Day did nothing. Could Day now make up his delinquency by paying to plaintiff the rentals he might have paid within the "time limited in the Day lease and assert that lease to be now in full force? Assuredly no; a court of equity would not listen to such a thing. Should such a tender be made the plaintiff could lawfully reject it; could not lawfully accept it. A court would not permit the defendant’s rights to be trifled with in that manner. Defendant urged plaintiff to give Day or his assignee the ten days’ notice mentioned in the lease but this the plaintiff refused to do. His judgment was good. The notice was unnecessary. On the fifteenth day of June, 1922, the Day lease came to its end. It expired by limitation. It ceased automatically. (Eastern Oil Co. v. Smith, supra; Northwestern Oil & Gas Co. v. Branine, supra; Ireland v. Chatman, supra; O’Neill v. Risinger, supra.)
If the defendant’s contention were correct the forfeiture clause in the Day lease would in effect inure to the benefit of the lessee; for notwithstanding that he had not exercised the rights which he had the option to exercise, the. lease, although at an end by every canon of construction which seems applicable to the present controversy, would still be held to be in full force, in the absence of notice of forfeiture. If this forfeiture clause is absolutely irreconcilable with the general intent of the lease, the general intent must control. Particular clauses of a contract are subordinate to its general intent by the express provisions of the statute. (Sec. 7541, Rev. Codes 1921.) Furthermore, the forfeiture clause follows the habendum clause, the “unless” clause, and other essential parts of the lease. And section 6853, Revised Codes of 1921, provides that if several parts of a grant are absolutely irreconcilable, the former part prevails. A further discussion would seem unnecessary.
The Day lease expired by limitation on June 15, 1922, and the plaintiff had a good right to convey, when, on November 11, 1922, he executed the lease to the defendant. The defendant’s counterclaim, therefore, has no foundation and if the court erred in instructing the jury with reference thereto, or if the jury disregarded the instructions of the court upon that feature of the case, neither of these errors operated to the defendant’s prejudice. The. court erred in including in the judgment in favor of the plaintiff the amount represented by the notes secured by the second mortgage.
The cause is remanded to the district court of Toole county with directions to deduct from the judgment as of the date when it was entered the sum of $272.75, being the amount of the notes and interest secured by the second mortgage, and when so modified the judgment shall stand affirmed.
Modified and affirmed.
Associate Justices Holloway, Galen, Stark and Matthews concur.
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] |
JUSTICE TRIEWEILER
delivered the Opinion of the Court.
Defendant Milton Lee Keys appeals from the judgment and verdict of the Eighth Judicial District Court, Cascade County, convicting him of the crime of sexual intercourse without consent, pursuant to § 45-5-503, MCA. On February 4, 1992, the court sentenced Keys to 15 years in the Montana State Prison, with three years suspended.
We reverse.
The following issues are presented on appeal:
1. Did the District Court abuse its discretion when it admitted evidence of a prior, uncharged incident of sexual misconduct by Keys in the trial for sexual intercourse without consent?
2. Did the District Court’s refusal to allow reference to prior misconduct evidence during opening statements deprive Keys of his right to a fair and impartial trial because Keys had no opportunity to minimize the impact of the evidence before the jury heard testimony about Keys’ misconduct?
3. Was the evidence presented by the State during the trial inherently incredible and insufficient to support the guilty verdict?
On August 3, 1990, Keys was charged by information with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. At trial, there was no dispute that Keys had knowingly engaged in sexual intercourse with the victim, N.B. The sole issue in dispute was whether or not N.B. had consented.
On the evening of July 31,1990, N.B., who was 18 years old at the time, met Keys at TJ’s Lounge in Great Falls. N.B. asked the bartender, who was an acquaintance of hers, for a ride home. When Keys overheard this, he offered to give her a ride and she accepted.
The two of them left the bar in Keys’ vehicle and headed toward N.B.’s home. Keys stopped the car after turning off of Tenth Avenue South, and began kissing N.B. N.B. stated that she thought Keys would resume driving but he instead continued to make sexual advances over her objections. Thereafter, Keys climbed across the seat and, according to N.B.’s testimony, forced her to have sexual intercourse. N.B. testified that she struggled throughout the incident but the car was very confining and she was unable to do anything to stop Keys. Finally, when the assault ended, N.B. was able to get out of the car and immediately went to a nearby house where she notified the police that she had been raped.
While en route to meet with N.B., the police officer who was dispatched to investigate the alleged crime saw a vehicle parked near the crime scene which resembled the description she had been given of the suspect’s vehicle. The officer observed the driver, later identified as Keys, searching for something on the ground and in the car. When the officer asked Keys what he was doing, he claimed he was looking for his wallet which he had lost when he dropped off a male friend at this spot. Although the officer had not yet made mention that she was investigating a possible rape, Keys later admitted he lied when approached by the police officer because he was afraid he might be charged with rape and did not know the age of consent in Montana. After confirming that Keys fit the description of the alleged assailant, the officer placed Keys under arrest and took him to the house where N.B. identified him.
The next day Keys was taken to the hospital for the purpose of gathering samples of his hair, saliva, and blood. While at the hospital Keys told another police officer that he and N.B. had been with another male and female when they left TJ’s and had not been alone in the car. In a later videotaped interview, Keys again told the investigating officers that two females and a male were with him at the time of the alleged incident. At trial, Keys acknowledged that he had lied on both these occasions because, in his words, “I was hoping I would let her [N.B.] think that I had somebody to back up a story for me ... and she would tell them that nothing really happened. It didn’t work out that way.”
Keys did not deny having intercourse with N.B., but claimed that she had willingly participated. The case was tried before a jury which found Keys guilty of the crime of sexual intercourse without consent, and the court imposed a 15-year sentence, with three years suspended. Keys appeals.
The dispositive issue in this appeal is whether the District Court properly admitted evidence about a prior incident of sexual misconduct by Keys.
Prior to trial, the State served Keys with notice of the State’s intent to offer evidence of “other crimes, wrongs, or acts,” to prove Keys’ motive and intent. Keys filed a brief in opposition to the introduction of this evidence, but on January 27, 1992, the court ruled that this evidence would be admissible. The evidence consisted of testimony by another woman, P.B., who had met Keys a month earlier at the Flamingo Lounge in Great Falls. P.B. testified that she talked with Keys and danced with him several times. As she was leaving the Flamingo, Keys told P.B. that he would like to speak with her outside. She testified that Keys walked out of the bar ahead of her, and when they got outside, Keys turned around with the zipper of his pants down and his penis exposed. He then twice told P.B., “I want to fuck your socks off.” P.B. reacted angrily, and when she threatened to call the police, Keys apologized and left her alone. During the trial, when Keys was on the stand and testified about this incident, he admitted that it occurred the way P.B. had described. He characterized his actions as “being basically rude,” and said that he was stupid for having done this.
Keys argues that the court erred in allowing admission of this evidence because it had no relevance to the issue of whether N.B. consented, and did not meet the requirements of Rule 404(b), M.R.Evid. The State counters by arguing that the evidence was relevant because it was highly probative of Keys’ motive and intent to commit sexual acts against nonconsenting female victims.
The standard for review of evidentiary rulings is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052; State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537. The district court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of this discretion, the court’s determination will not be overturned. Crist, 833 P.2d at 1054.
In Montana, the admissibility of evidence of other crimes, wrongs, or acts (“prior acts evidence”) is controlled by Rule 404(b), M.R.Evid., which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
We have stated that the general rule of Rule 404(b) must be strictly enforced except where a departure is clearly justified, and exceptions to the rule must be carefully limited. Crist, 833 P.2d at 1054; State v. Just (1979), 184 Mont. 262, 271-72, 602 P.2d 957, 962. In order to insure that prior acts evidence is not used as character evidence, this Court has outlined four substantive criteria for the admission of such evidence. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. This rule, which is a modification of the rule originally developed in Just, 602 P.2d at 961, requires that:
1. There is a similarity between the crime charged and the previous crime, act, or wrong;
2. The other crime, act, or wrong must not be remote in time;
3. The evidence of other acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; and
4. A determination that the probative value of the evidence is not substantially outweighed by the danger of prejudice to the defendant.
In Matt, we also clarified that in addition to satisfying these criteria for admissibility, a party offering such evidence must comply with the procedural requirements originally set forth in Just. In this instance, we first point out that the parties do not dispute that the appropriate procedural precautions were taken. The defendant received proper notice; the trial court admonished the jury at the introduction of the evidence; and the trial court instructed the jury in its final charge on the purpose of the evidence.
The only question in this case is whether a single instance of sexual misconduct, which the State characterized as indecent expo sure and assault, was admissible to prove that the sexual intercourse with N.B. occurred without her consent. The State contends that the evidence goes to prove Keys’ motive and intent, and that the requirements of the modified Just rule, as announced in Matt, have been satisfied. Although we concede that the incident with P.B., which occurred only a month before the alleged crime, satisfies the requirement that the prior act not be remote in time, we conclude that this is the only one of the modified Just criteria which is met and that the offered evidence fails to meet the requirements for admissibility in every other respect. The mere fact that the incident with P.B. occurred near in time to the alleged crime is not sufficient to overcome the factors which weigh against admissibility.
The State argues that the indecent exposure incident is sufficiently similar to the charge of sexual intercourse without consent because both acts were illegal and sexual in nature, and were directed toward nonconsenting female victims. Citing State v. Gilpin (1988), 232 Mont. 56, 64, 756 P.2d 445, 449, for the proposition that “[i]t is not necessary that the prior acts and the charged offense be identical,” the State presents examples of prior acts evidence which has been held admissible even though there have been substantial differences between the charged crime and the prior conduct.
Admittedly, in several cases we have held that prior acts evidence meets the similarity standard even though the acts have been quite dissimilar from the actual crime being charged. See, e.g., Sadowski, 805 P.2d 537 (apparent suicide attempt and pointing a gun at a deputy held sufficiently similar to deliberate homicide); State v. McKnight (1991), 250 Mont. 457, 820 P.2d 1279 (sexual assault held similar to sexual intercourse without consent); State v. Gambrel (1990), 246 Mont. 84, 803 P.2d 1071 (prior uncharged sex crimes admissible in deliberate homicide trial); State v. Wurtz (1981), 195 Mont. 226, 636 P.2d 246 (overruled on other grounds) (intimidation threats made from auto similar to sexual assault against a different victim in a parking lot).
While there is no rigid rule for determining when conduct is sufficiently similar, the determination of similarity depends on whether that conduct has some relevance to prove an issue in dispute. We reiterate that in this case the only issue before the jury was whether N.B. consented. We do not find that the indecent exposure incident, followed by an apology from Keys and the fact that he left P.B. alone, is similar or relevant to determining what occurred between N.B. and Keys. The two incidents are so completely different in surrounding circumstances, acts committed, and victims, that we cannot reasonably conclude that one is probative of the other.
In Crist, we held that evidence of the defendant showing a young girl pornographic magazines and attempting to get her to dress in a nightgown were not sufficiently similar to a charge of sexual abuse. We concluded:
These acts are, however, evidence of character. These innuendos would tend to distract the trier of fact from the main question of what actually happened on the occasions charged.
Crist, 833 P.2d at 1055.
In this case, we also find that the innuendos that could be drawn from this evidence would tend to go to Keys’ character and his propensity to act in a certain way and could, therefore, distract the trier of fact from the issue in question. We do not find enough similarity between the acts to conclude that the indecent exposure episode is probative of the issue of N.B.’s consent.
The State next contends that the evidence was offered to prove Keys’ motive and intent which are both permissible purposes under our holding in Matt and Rule 404(b), M.R.Evid., for prior acts evidence. But merely reciting an allowable purpose is not sufficient if the evidence does not further that purpose or that purpose is not an issue in dispute. In this case, the State ultimately argues that the indecent exposure incident is probative of determining whether Keys was concerned with the consent of victims of his sexually aggressive behavior. However, this is in essence an argument that Keys committed the crime for which he was being tried because he is a person of poor character. This is precisely what prior acts evidence may not be used for.
[T]he prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.
John W. Strong, McCormick on Evidence 798 (4th ed. 1992).
Furthermore, it is not Keys’ intent or motive which is the determinative factor in this case. Rather, it is the victim’s intent, and whether she consented to the act of intercourse, which is dispositive of whether a crime was committed. Keys clearly intended to have sexual intercourse with N.B., and even if he intended to do this forcibly and without her consent, this criminal intent would be irrelevant if N.B. consented.
We conclude that the purposes for which the State contends the evidence is being presented are not relevant to the question being tried in this case. The only relevant purpose for the evidence goes to Keys’ character, and this use of prior acts evidence is explicitly prohibited by Rule 404(b), M.R.Evid.
Because the evidence is inadmissible under the first and third criteria, it is not necessary to discuss the remaining requirement under the modified Just rule. For the reasons stated, we hold that the District Court abused its discretion when it allowed RB. to testify about the incident with Keys and remand this case for a new trial.
Inasmuch as we are reversing on the first issue and not allowing the admission of the prior acts evidence, the question of whether Keys’ was deprived of a fair and impartial trial because the evidence could not be discussed during opening statements need not be discussed.
Keys contends that judgment should be entered in his favor because the State’s evidence is insufficient to convict him. He maintains that the evidence presented by the State during the trial is so inherently incredible that it is unworthy of belief. We disagree.
Keys’ argument is premised on his assertion that, given the size of the two parties involved and the size of the car, consensual intercourse was possible, but N.B. could not have been forced to do anything she was unwilling to do. Keys also points to a number of instances during the trial where N.B. gave nondefinitive statements or could not recall certain details.
The State’s evidence consisted of N.B.’s testimony, supported by physical evidence and the testimony of other witnesses who were with her shortly after the alleged rape, which corroborated her testimony. The jury heard and weighed N.B.’s testimony that the sexual intercourse occurred without her consent, and then heard and weighed Keys’ conflicting testimony that it occurred willingly. It is well settled in Montana that uncorroborated testimony of the victim, standing alone, is sufficient for conviction of sexual intercourse without consent. State v. Whitcher (1991), 248 Mont. 183, 810 P.2d 751; State v. French (1988), 233 Mont. 364, 760 P.2d 86.
The jury was also aware that Keys had lied to police officers at various stages of the investigation because he feared a rape accusation, and it was noted that one of these lies occurred before there was any mention that the police were, in fact, investigating a possible rape.
If there is conflicting evidence, it is within the province of the trier of fact to decide who to believe. State v. Medina (1990), 245 Mont. 25, 34, 798 P.2d 1032, 1038 (quoting State v. Brown (1989), 239 Mont. 453, 781 P.2d 281). In this instance, after considering not only the testimony of N.B. and Keys, but also the testimony of other witnesses and physical evidence, the jury, by its verdict, resolved the conflict in favor of the State.
The applicable standard of review for determining the sufficiency of the evidence is
[W]hether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Emphasis added.]
Medina, 798 P.2d at 1037. Although Keys tries to isolate and emphasize some of the particulars that N.B. could not clearly remember, the jury had before it ample evidence to justify resolution of the credibility issue in favor of N.B. and to find that there was lack of consent. We cannot conclude that Keys’ arguments about the size of the car or N.B.’s testimony meet the burden of showing that no rational trier of fact could have reached this decision. Nor do we find the evidence so inherently incredible that it is unworthy of belief.
However, based upon our conclusion that the District Court improperly admitted the evidence of Keys’ prior, uncharged incident of sexual misconduct, the judgment of the District Court is vacated and this case is remanded for a new trial.
JUSTICES HUNT, McDONOUGH and GRAY concur.
|
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] |
JUSTICE TRIEWEILER
delivered the Opinion of the Court.
Appellant Kenneth J. Alpert appeals from an order of the Fourth Judicial District Court, Ravalli County, entered on July 24, 1992, which modified the parties’ original divorce decree in regard to visitation rights and denied an award of attorney fees. We reverse.
The dispositive issue on appeal is whether the District Court had jurisdiction under the Uniform Child Custody Jurisdiction Act to hear and determine respondent Terri Hameline’s motion for visitation rights.
Kenneth and Terri’s ten-year marriage was dissolved by order of the Fourth Judicial District Court on January 17, 1990. At the time of the dissolution, the parties lived in Ravalli County and had two minor children — Seth, who was nine years old, and Hannah, who was seven years old. The divorce decree incorporated a separation agreement which gave sole custody of the children to Kenneth and reasonable visitation rights to Terri. In lieu of defining actual times and periods of visitation in the agreement, the parties agreed to mutually resolve these details.
In December 1990, Kenneth and the children moved from Montana to the state of Texas. Although Kenneth did not file a written notice with the court of his intent to leave Montana, he gave Terri more than 30 days oral notice prior to moving. The adequacy of that notice is not an issue on appeal. Since that time, the children have had no significant contacts with Montana. They have attended school in Texas, have seen medical and day care providers in that state, and all significant information concerning the children’s care, well-being, and personal relationships is found in Texas.
Terri filed a motion with the District Court on May 26, 1992, in which she requested the court to specify her summer visitation rights because she alleged that Kenneth was unreasonably restricting her opportunities to visit the children. Kenneth objected on the grounds that the Montana court lacked jurisdiction and that the visitation which was requested by Terri was not in the children’s best interests. He also requested an award of attorney fees.
The court issued its Findings, Conclusions, and Order on July 24, 1992. Since the children were no longer residents of Montana and had no significant contacts here since moving to Texas, the court determined that it should not accept further or continuing jurisdiction over any issues concerning the children with the exception of visitation rights. In regard to the visitation issue, the court concluded that it would be in the best interests of the children to specifically define Terri’s visitation rights. Consequently, Terri was awarded visitation for a period of 28 days during the summer of 1992 and 45 days each summer thereafter. Terri was ordered to pay all costs incurred in bringing the children to Montana, and Kenneth was ordered to cover the costs of returning the children to Texas. Neither party was awarded attorney fees. On appeal, Kenneth contends that the court was without jurisdiction to render this order and that he was entitled to an award of attorney fees under the terms of the couple’s separation agreement.
Kenneth’s jurisdictional challenge is based on Montana’s version of the Uniform Child Custody Jurisdiction Act (UCCJA), found at §§ 40-7-101 through -125, MCA. The stated purpose of the UCCJA is to avoid the jurisdictional conflicts that arise in the enforcement and modification of custody decrees, and to assure that any litigation involving minor children occurs in the state where the child has the closest connection and where significant evidence concerning the child’s care, protection, training, and personal relationships is most readily available. Section 40-7-102, MCA. Under § 40-7-103(2), MCA, visitation rights are specifically included in the definition of matters encompassed by a custody proceeding.
Kenneth contends that under the UCCJA the District Court was required to decline jurisdiction in favor of a Texas forum because the court’s visitation order amounted to a modification of the original custody decree, and therefore, was a custody proceeding. Terri, how ever, counters that the court merely clarified her visitation rights and this was not a modification of the original decree. Therefore, Terri claims that the provisions of the UCCJA did not bar the court from ruling on her motion.
We disagree with the position set forth by Terri and hold that, under the UCCJA, the court did not have subject matter jurisdiction to enter its visitation order.
The District Court correctly concluded that “it should not accept further or continuing jurisdiction over any issues concerning the children.” The relevant statute which dictates this conclusion is § 40-7-104, MCA, which sets forth the UCCJA’s jurisdictional requirements by incorporating the provisions of § 40-4-211, MCA. Before assuming jurisdiction in a custody proceeding which, by statute, includes matters dealing with visitation rights, a district court must first determine that one of the four disjunctive requirements of § 40-4-211(1), MCA, is satisfied. In re Marriage of Lance (1984), 213 Mont. 182, 690 P.2d 979. In this instance, none of these jurisdictional requirements are met.
In In re Marriage of Harper (1988), 235 Mont. 41, 46, 764 P.2d 1283, 1286, we held that “the distinction between modification and enforcement of custody” for purposes of applying the UCCJA is “superficial” and that “[preserving such a distinction would defeat the purposes set out in § 40-7-102, MCA.” We conclude that to distinguish between a “modification” and “clarification” under the facts in this case would be equally superficial. In this case, the court’s order altered the rights of the parties beyond that originally contemplated when the visitation provisions were left unspecified, and thus, modified those rights.
We are not holding that Terri’s visitation rights should be left unspecified or that her allegations of interference by Kenneth should not be addressed. It is not uncommon in situations like this, when one or both parties relocate, that custody or visitation provisions need to be clearly defined or modified. See, e.g., In re Marriage of Bolton (1984), 212 Mont. 212, 690 P.2d 401; In re Marriage of Sanderson (1981), 191 Mont. 316, 623 P.2d 1388. But it must be a court of competent jurisdiction to enter a judgment which alters the rights of the parties or imposes specific duties and obligations. In this instance, that court is not in Montana.
Kenneth also contends that, in accordance with the parties’ 1990 separation agreement, he is entitled to an award of attorney fees and costs if the court’s order is vacated. The pertinent provision of the agreement, which was approved by the court, provides as follows:
Should any action be commenced to enforce, modify, or interpret any provisions contained herein, the Court, as a cost of suit, shall award a reasonable attorney’s fee to the successful party.
Although we have determined that there was no subject matter jurisdiction to hear Terri’s motion for visitation, we note that the court does have personal jurisdiction over the parties by virtue of their appearances in this proceeding. Therefore, in light of our holding, we remand this case for a determination by the District Court of whether the above-mentioned provision of the separation agreement contemplated an award of attorney fees in the situation presented here.
The order of the District Court is vacated and this case remanded for a determination on the issue of attorney fees.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT and GRAY concur.
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JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from a Twentieth Judicial District Court, Lake County bench trial judgment in a consolidated case regarding easements. We affirm.
There are three issues before the Court:
1. Did the District Court err in concluding that Wynias’ use of the easement across Ekmans’ and Kellenberger’s property was permissive?
2. Did the District Court err in failing to conclude that Tacke’s easement across Wynias’ property was extinguished when Tacke’s predecessor sold Lots 18 and 19 to Ekmans?
3. Did the District Court err when it located Tacke’s easement across the Wynias’ property on the “trailer pad” road?
This case is a consolidation of two cases, one filed by Victor Tacke (Tacke) against Robert and Winona Wynia (Wynias), William Smith (Smith), Tacke’s predecessor in title and RE/MAX of Bigfork, a real estate company (RE/MAX) and the other action filed by the Wynias against C. John Ekman and Susan Ekman (Ekmans) and Alma Jean B. Kellenberger (Kellenberger). The Wynias, Ekmans, Tacke and Kellenberger own property in Lac Cygne Shores, a platted subdivision on Swan Lake in Lake County. Tacke owns Lot 15, Wynias own Lots 16 and 17, Ekmans own Lots 18 and 19 and Kellenberger owns Lots 20 and 21. The following is a plat for reference:
See diagram on page 413.
Smith is the former owner of Lots 15,18 and 19. He listed the Lots for sale through RE/MAX and subsequently sold Lots 18 and 19 to Ekmans in 1988 and Lot 15 to Tacke in 1989. Wynias bought Lot 16 from the original owners of the entire subdivision, Dr. Virgil Ferree and Gladys Ferree (Ferrees) in 1965. They bought Lot 17 from the Ferrees in 1973.
When the Wynias purchased Lot 16 in 1965, the only access to the lots in the subdivision was by boat. In 1967, the Ferrees built a road leading to the subdivision which they subsequently deeded to the county. They also built an access road from the “county” road near Lot 2 to an area in Lot 16. At that point, the Ferrees discovered that if they continued building the road toward Lot 21, the road would have to be very steep and individual driveways leading to the road would also have to be very steep. Consequently, the Ferrees abandoned the road within Lot 16.
There was an old skid road located near the end of the “abandoned” access road and the Wynias used this road for access to their boat launch. The trial court concluded that the Ferrees acquiesced in Wynias’ use of the road and Wynias’ use did not interfere in any way with the Ferrees’ use and enjoyment of the Ferrees’ property. The trial court further concluded that Wynias’ use of the skid road was permissive from its inception and at no time adverse or hostile to the rights of the Ferrees, Smith or Kellenberger.
At about the time that the Wynias bought Lot 17 in 1973, Dr. Wynia, Dr. Virgil Ferree and William Walterskirschen, Ferree’s attorney, met to discuss the appropriate placement of easements and access roads from the Wynias to the Ferrees and vice versa. The first easement went from Dr. Ferree to the Wynias across Lots 18 and 19, providing access to Lots 15, 16, 17, 18, 19, 20 and 21. The second easement went from the Wynias to the Ferrees across Lots 16 and 17 for access to Lots 15, 18, 19, 20 and 21. “The easements locate the roads in the SW1/2 of Lots 19, 18, 17, and 16 to approach from the Northwest.” After the signing and recording of easements, Dr. Ferree and Dr. Wynia met on the property and Dr. Ferree instructed Dr. Wynia as to where to build the easement access road. The Wynias instructed Jim Herron to construct an access road across Lots 16,17, 18 and 19 in the fall of 1973.
During summers after the access road was built, Wynias parked their 32 foot trailer on Lot 16 near the boundary of Lot 15. The trial court concluded that the Wynias could park their trailer in the road turnouts on Lot 16 without disturbing vehicle use on the road. It further concluded that Ferrees acquiesced in the trailer being parked on the roadway and it did not interfere with any use of the road by Ferree or Smith, the subsequent owner. Further facts will be presented as necessary.
Our standard of review of a district court’s findings of fact is clear. Rule 52(a), M.R.Civ.R, provides in pertinent part:
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses...
In interpreting this rule, we have adopted the following three-part test:
First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.”
Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. (Citations omitted.)
To establish an easement by prescription, the party claiming an easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. The statutory period is five years.” Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356. (Citation omitted.) See also; Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852.
1. WYNIAS v. EKMANS AND KELLENBERGER
Wynias contend they had perfected an easement by prescription across Ekmans’ and Kellenberger’s properties on the skid trail near the lake. They further state that they had established that their use was open, notorious, exclusive, continuous and uninterrupted, creating the presumption that their use was adverse. They believe there was insufficient evidence to show that their use was permissive, especially given that they established the presumption of adverse use. Ekmans and Kellenberger counter that the presumption in this case is that the use is permissive.
“To be adverse, the use of the alleged easement must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to, and acquiesced in by, the owner of the land.” Keebler, 807 P.2d at 1356-1357. (Citation omitted.) “District courts sitting as fact finders occupy the best position to determine if the use was permissive or adverse.” Granite County v. Komberec (1990), 245 Mont. 252, 258, 800 P.2d 166, 169.
Dr. Wynia described a neighborly and cordial relationship between himself and Dr. Ferree, the original owner of the subdivision. He testified to social visits by Dr. Ferree and wrote that Dr. Ferree had “been considerate with us in the past.”
Perhaps most telling of all is Dr. Wynia’s answer when Mr. Murray, attorney for the Ekmans and Kellenberger, asked “So you said, ‘Doctor Ferree, I’d like to be able to continue to use that lower skid trail road, true?”’ Dr. Wynia replied, “True.” Dr. Ferree responded that ‘We’ll talk about it. Bring an attorney out and we’ll look at drawing up the easements.” Dr. Wynia appears to be asking for continued permission to use the skid trail road. “The trier of fact is in the best position to hear the testimony and observe the witnesses and their demeanor.... Particularly where credibility of witnesses is involved, we give great weight to fact-findings of a district court.” Scott v. Eagle Watch Investments, Inc. (1991), 251 Mont. 191, 195, 828 P.2d 1346, 1349. “A use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Thus where the use of a way by a neighbor was by express or implied permission of the owner, it was held that the continuous use of the way by the neighbor was not adverse and did not ripen into a prescriptive right.” Wilson v. Chesttnut (1974), 164 Mont. 484, 491, 525 P.2d 24. 27.
This Court concludes that there was sufficient evidence for the trial court to conclude that the Wynias’ use of the skid trail road was permissive from its inception. The trial court did not misapprehend the evidence nor was the finding of permissiveness clearly erroneous.
2. TACKE v. WYNIAS
Wynias claim that Tacke’s easement was extinguished when Smith sold Lot 15 without reserving easement rights across Lots 18 and 19. This failure extinguishes any easement rights Smith may have had to cross Lots 16 and 17 according to the Wynias. However, this Court agrees with Tacke’s argument that Smith’s transfer of title did not extinguish the easement over Lots 16 through 19 to gain passage to Lot 15, but for different reasons.
When Wynias bought Lot 17 in 1973, they granted an easement to the Ferrees and their successors and assigns over and across Lots 16 and 17. “The second easement is for the purpose of providing access to Lot 15 and shall be over and across the Southwesterly Half of Lots 16 and 17, and shall make its approach from the Northwest.” The written easement was signed and recorded in August of 1973.
In November of 1985, the widowed Mrs. Ferree sold her lots in Lac Cygne Shores to William Smith. Smith sold Lots 18 and 19 to the Ekmans on July 7,1988. Smith sold Lot 15 to Victor Tacke on August 16,1989.
Wynias’ argument that the sale of Lots 18 and 19 to the Ekmans and the sale of Lot 15 to Tacke without a reservation of easement extinguished any easement rights Tacke may have had through Lots 16 and 17 is without merit. The Ekmans have stated that Tacke may travel across Lots 18 and 19 to gain access to Lots 16 and 17. Once Tacke crosses Lots 18 and 19, he arrives at Lots 17 and 16. Tacke is able to traverse Lots 17 and 16 by virtue of the 1973 recorded easement from the Wynias to the Ferrees which states that:
ROBERT E. WYNIA and WINONA CAROLE WYNIA, Husband and Wife, of Great Falls, Montana, do hereby give and grant unto VIRGIL D. FERREE, Trustee, and GLADYS I. FERREE, Trustee, of Kalispell, Montana, and to their successors and assigns, a roadway easement twenty feet (20 ft.) in width, and over and across the following described property situated in Lake County, Montana, to-wit:
Lots 16 and 17 of Lac Cygne Shores, according to the map or plat thereof on file and of record in the office of the Clerk and Recorder, Lake County, Montana.
It is understood this is a grant of two (2) separate road easements over and across Lots 16 and 17. ...The second easement is for the purpose of providing access to Lot 15 and shall be over and across the Southwesterly Half of Lots 16 and 17, and shall make its approach from the Northwest. (Emphasis added.)
The benefits of this recorded easement passed to Tacke as an assignee to the Ferrees. Dr. Ferree bought the Lac Cygne property for the sole purpose of subdividing and selling the lots. He ensured that future residents of Lots 15,18 and 19 would have access to their property through the written easement across Lots 16 and 17 recorded in 1973. By the same token, Dr. Ferree ensured that the Wynias would be guaranteed their easements across Lots 18 and 19 by the other written easement recorded in 1973 on the upper portion away from the lake. As an assignee of the Ferrees, Tacke has access across Lots 16 and 17 by virtue of the recorded easement 211576.
3. TACKE v. WYNIAS
Finally, Wynias argue that the trial court established an unreasonable location for Tacke’s easement. Tacke claims that there are good reasons to locate the easement on the “trailer pad” road.
The trial court made the following findings of fact concluding the “trailer pad” road was the appropriate easement for Tacke across Lots 16 and 17:
21. That the easements were signed by Ferrees and Wynias and were recorded later in August of 1973. After the easements were signed, Dr. Ferree and Wynias met on the property and Dr. Ferree directed where he wanted the easement access road across Lots 19 and 18 located.
22. That during the fall of 1973, an access road across Lots 19, 18,17, and 16 was constructed by Jim Herron at the instance and request of Wynias, who built the road in the most appropriate place for a road on the property.
23. That the existing access road across Lots 19, 18, 17, and 16 is the only road in the southwest half of Lots 19, 18, 17, and 16, which approaches from the northwest and which provides access to Lot 15 of Lac Cygne Shores.
24. That the existing access road variously described by the parties as Easement No. 1, Easement No. 2, the upper road and the trailer pad road is located in accordance with the Walterskirschen map (Plaintiff’s Exhibit 4) and Walterskirschen’s letter of August 9, 1973 (Plaintiff’s Exhibit 5), and is located where Dr. Ferree directed that it be located across Lots 16, 17, 18 and 19. It is located in the most appropriate place to build a road across Lots 16,17,18 and 19 and is the only road which provides access to Lot 15 of Lac Cygne Shores across the southwest half of Lots 19, 18, 17 and 16 and which approaches from the northwest.
27. That during the summer of nearly every year from 1974 to 1990 Wynias parked their 32’ Silver Streak trailer on Lot 16 near the boundary of Lot 15 on that portion of the road which the Wynias described as the trailer pad road and which Tacke described as Easement No. 2 on Plaintiff’s Exhibit 1. The Court finds that to be the same road as sketched by Bill Walterskirschen on Plaintiff’s Exhibit 4 extending from the triangle on the boundary line between Lots 19 and 20 to a point within Lot 15, and which road is over and across the southwesterly half of Lots 16 and 17 approaching Lot 15 from the northwest as provided in the recorded easement, Court’s Exhibit 2, and as actually constructed on the ground by Jim Herron.
31. That Wynias introduced a topographic map (Wynias’ Exhibit 60) and proposed an alternative route for access to Lot 15 by means of a road between the existing 30’ access road as it extends to the triangle on the boundary between Lots 19 and 20 and the existing “trailer pad” road. The Court finds said proposal to be totally unacceptable. The terrain is steep and rocky, the construction of an additional road at such location would be difficult, expensive and steep and would be extremely disruptive to Wynias’ Lots 16 and 17. For similar reasons, the Court finds that access to Lot 15 cannot be had from the 30’ access road as shown on the plat of Lac Cygne Shores (Court’s Exhibit 1 and Wynias’ Exhibit 23).
There was conflicting testimony about reasonable locations for Tacke’s easement to Lot 15. Jim Herron, who built the “trailer pad” road, stated that he built the road in the only place where it could be built “-without creating where you couldn’t get out. You’d have too steep a grade. This was about the natural part to get in there.” R. J. Burggraf, a road contractor, was asked by Tacke to consider options for building road access to Lot 15 if Tacke did not have an easement at the “trailer pad” road and to provide cost estimates. Mr. Burggraf concluded that the “best spot for a road traversing Lot 16 and 17 to get to Vic Tacke’s property” is the “trailer pad” road. The above testimony, along with other testimony and exhibits provide substantial evidence for the trial court to establish the easement at the “trailer pad” road. “Due regard is given the opportunity of the district court to judge the credibility of witnesses ... and resolve conflicts or inconsistencies in testimony.” Thomas v. Bamum (1984), 211 Mont. 137, 143-144, 684 P.2d 1106, 1110. (Citations omitted.)
This Court concludes that the trial court findings are supported by substantial evidence, the trial court did not misapprehend the effect of the evidence, and the findings are not clearly erroneous. AFFIRMED.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and TRIEWEILER concur.
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
J.R.T. appeals the order denying his petition for post-conviction relief entered in the Youth Court for the First Judicial District, Lewis and Clark County. We affirm.
We restate the sole issue as:
Did the Youth Court err in denying J.R.T.’s petition for post-conviction relief?
In August 1990, J.R.T. was involved in a physical altercation with another youth, R.E., in Helena, Montana. During the affray, R.E. suffered a broken jaw and several lacerations. As a result of the injuries to R.E., a petition was filed alleging J.R.T. was a delinquent youth for having committed the offense of aggravated assault. Following trial on November 21, 1990, the jury determined that J.R.T. committed aggravated assault. Thereafter, the Youth Court adjudicated J.R.T. a delinquent youth. J.R.T. did not appeal the jury verdict or the Youth Court’s adjudication.
In April 1992, J.R.T. filed a petition for post-conviction relief with the Youth Court alleging he should receive a new trial based upon newly-discovered evidence. Following a hearing, the Youth Court denied the petition for post-conviction relief. This appeal followed.
Did the Youth Court err in denying J.R.T.’s petition for post-conviction relief?
J.R.T. argues that new evidence — in particular, the testimony of witnesses who did not testify at trial — indicates that he was not the one who caused R.E.’s injuries but, rather, the broken jaw was caused by one or more persons in the crowd who kicked R.E. in the face during the fight. J.R.T. maintains that, if this newly-discovered evidence had been presented to the jury, they may have found that he did not commit aggravated assault in that he did not cause serious bodily injury.
In denying J.R.T.’s petition for post-conviction relief, the Youth Court concluded that a lack of diligence was the reason the evidence was not discovered prior to trial. Therefore, based upon State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052, the Youth Court concluded J.R.T. failed to satisfy all of the six required factors which control whether a new trial should be granted based upon newly-discovered evidence.
The decision to grant or deny a new trial is within the sound discretion of the trial court. State v. Goettle (1992), 253 Mont. 111, 113, 831 P.2d 595, 596. On appeal, we will not disturb that decision unless an abuse of discretion is shown. Goettle, 831 P.2d at 596.
In Greeno, we held that a petition for a new trial based upon newly-discovered evidence must fall within a particular set of formulated criteria, which were more recently pronounced in State v. Goodwin (1991), 249 Mont. 1, 813 P.2d 953. For a new trial to be granted based upon newly-discovered evidence, it must be shown that:
1. The evidence must have come to the knowledge of the applicant since the trial;
2. It was not through want of diligence that the evidence was not discovered earlier;
3. The evidence is so material that it would probably produce a different result upon another trial;
4. The evidence is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial;
5. The application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence is accounted for; and
6. The evidence must not be such as will only tend to impeach the character or credit of a witness.
Goodwin, 813 P.2d at 963.
As discussed, the Youth Court concluded that the evidence J.R.T. alleged was newly-discovered would have been discoverable prior to trial through due diligence. Furthermore, in its Memorandum of Decision, the Youth Court noted that the evidence J.R.T. was relying on at the petition hearing was in conflict with the position he took at trial. Specifically, at trial J.R.T. relied on the defense of justifiable use of force and that he did not have the particular state of mind necessary to prove the charge alleged. At the petition hearing, J.R.T. argued that the newly-discovered evidence showed that R.E.’s broken jaw was caused by one of the spectators who kicked him in the face.
Prior to trial, J.R.T. listed twenty-six potential witnesses. Two of these potential witnesses, R.M. and M.M., did not testify at trial. However, both testified at the hearing on J.R.T.’s petition for post-conviction relief. A third witness, B.S., who did testify at trial, was subpoenaed to testify at the hearing on the petition for post-conviction relief. B.S. did not show up at the hearing. Finally, M.N. was not listed as a witness by either J.R.T. or the State prior to trial, and he did not testify at trial. He did, however, testify at the hearing.
At the hearing on J.R.T.’s petition for post-conviction relief, R.M. testified he saw five or six people kick R.E. while he was on the ground. Although R.M. was preliminarily listed as a defense witness, and a praecipe was issued asking the Clerk of Court to issue a subpoena, he was not included in J.R.T.’s revised witness list and was not served with a subpoena. The preliminary witness fist indicated that R.M.’s “address [was] unknown, however, [he] may work at the Pizza Hut on Euclid.” J.R.T. argues that because R.M.’s address was unknown, and, at the time, R.M. was no longer employed at Pizza Hut, he was not negligent in failing to contact R.M.
“A basic criteria for granting, new trials on newly discovered evidence is that the newly discovered evidence could not have been discovered and produced at trial with the exercise of reasonable or due diligence.” Carbon County v. Schwend (1984), 212 Mont. 474, 478, 688 P.2d 1251, 1253 (emphasis added). We agree with the Youth Court that no evidence was presented to indicate that R.M. could not have been located to be interviewed or to testify at trial. Due diligence requires something more than merely relying on an unknown address and a former place of employment. Reasonable, positive steps must be taken to discover the evidence. The record is devoid of any indication that J.R.T. diligently undertook to find this witness.
Likewise, although M.N. was not listed as a potential witness by either J.R.T. or the State, the record indicates that M.N. was at the fight with another youth who was called by J.R.T. to testify at trial. In addition, J.R.T. had known M.N. for approximately five years prior to trial. Again, J.R.T. presented no evidence which would show that he used due diligence to discover this witness. There is nothing to indicate that M.N. could not have been located.
B.S. testified at trial that he did not see J.R.T. or anyone else kick R.E. Prior to the hearing on the petition for post-conviction relief, B.S. signed a statement for J.R.T.’s lawyer in which he stated that R.E. was kicked in the face by three or four spectators. B.S. believed R.E.’s broken jaw was caused by these kicks or by the ground. However, this statement was not an affidavit. Thus, the statement did not meet the requirement that the witness whose evidence is alleged to have been newly-discovered support that evidence with an affidavit. Goodwin, 813 P.2d at 963.
Furthermore, at trial, the oral surgeon who treated R.E. testified that the broken jaw would be consistent with either being kicked or punched very hard several times. J.R.T. testified at trial that he hit R.E. in the face five or six times and “felt that I hit him pretty good.” As a result, the jury could have concluded that the punches to the face caused the broken jaw. Given the inference J.R.T. seeks to draw from B.S.’s statement, it is not reasonable to assume a different result probably would be reached if another trial were held.
Finally, J.R.T. argues that the false statement provided to the police by M.M., and a wrong address supplied by the prosecution, served to mislead his defense counsel, depriving him of an effective defense. Following the fight, M.M. provided a statement to police in which he stated that J.R.T. provoked the confrontation and beat up R.E. At the post-conviction relief hearing, M.M. recanted this story and testified that he originally wanted to get J.R.T. in trouble because “I didn’t like him or any of his so-called jock friends.”
The Youth Court found that M.M. was not a credible witness. The credibility of a witness is within the exclusive province of the trier of fact. State v. Palmer (1991), 247 Mont. 210, 214, 805 P.2d 580, 582. In addition, although M.M. was listed by the defense as a potential witness, once again, the record does not show that J.R.T. undertook to ascertain his whereabouts prior to trial through due diligence.
J.R.T. has failed to satisfy the requirements enunciated in Goodwin. Accordingly, we hold the Youth Court did not abuse its discretion in denying J.R.T.’s petition for post-conviction relief. The decision of the Youth Court is affirmed.
JUSTICES HARRISON, HUNT and WEBER concur.
|
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JUSTICE McDONOUGH
delivered the Opinion of the Court.
This is an appeal from an order of the Eighth Judicial District, Cascade County, granting respondent’s motion for summary judgment. We affirm in part and reverse in part.
Appellant Simmons Oil Corporation (SOC) and Simmons Refining Corporation (SRC) (collectively referred to as “Simmons”) alleged claims against Wells Fargo Bank for breach of fiduciary duty, tortious breach of the implied covenant of good faith and fair dealing, and civil conspiracy with Holly Corporation, resulting in Holly’s breach of partnership fiduciary duty owed to Simmons.
The central question on appeal is whether respondent established the complete absence of any genuine issues of material fact to justify a summary judgment ruling as a matter of law. Appellant requests this Court to reverse summary judgment on the grounds that the District Court erred in granting this ruling in light of the material factual controversy that exists.
ISSUES
1. Did the District Court err in granting summary judgment as to the claims brought against respondent Wells Fargo by appellant Simmons for breach of a fiduciary duty?
2. Did the District Court err in granting summary judgment as to the claims brought against Wells Fargo for breach of the implied covenant of good faith and fair dealing?
a. Did Wells Fargo merely exercise its contractual rights or did its actions constitute a breach of the covenant of good faith and fair dealing implied in every contract?
b. Did a “special relationship” exist between Simmons and Wells Fargo to support a tort claim for bad faith?
3. Did the District Court err in granting summary judgment as to the claims against Wells Fargo alleging civil conspiracy with Holly to breach Holly’s fiduciary duty to Simmons?
On December 22,1988, Simmons filed this action in District Court to recover damages from Wells Fargo Bank for breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and conspiracy. Simmons also sued Holly Corporation and two of its wholly owned subsidiaries, Navajo Refining Corporation and Navajo Northern, Inc. (collectively “Holly”), on similar allegations. In February 1989, both Wells Fargo and Holly moved to dismiss for lack of personal jurisdiction and the court granted these motions on May 1,1989. Simmons appealed this dismissal, and in July 1990 this Court reversed and remanded for further proceedings in a published opinion, Simmons Oil Corp. v. Holly Corp. (1990), 244 Mont. 75, 796 P.2d 189.
Upon remand to the District Court, Wells Fargo and Holly filed motions for summary judgment which were argued. On October 17, 1991, the District Court filed its orders granting summary judgment for all defendants, and Simmons appealed.
Prior to the filing of opening briefs, Simmons settled its dispute with Holly, and in February 1992, appellants and Holly filed in this Court a joint stipulation for voluntary dismissal of the appeal from the order granting summary judgment to Holly. The only remaining respondent is Wells Fargo.
Simmons’ allegations against Wells Fargo focus on the occurrence and interpretation of certain events during the eight year period of the loan relationship. The following basic chronology is not disputed by the parties:
Beginning in 1980, Wells Fargo provided SOC a line of credit, which was increased to $18 million in 1981 when SOC’s wholly owned subsidiary, SRC, purchased the Black Eagle Oil Refinery in Great Falls. The credit was to be used for working capital and acquisition of inventory and SOC and SRC (“Simmons”) agreed the line of credit would be reduced to $10 million by May 1982.
Simmons began experiencing financial difficulties in early 1982, was unable to reduce the debt as agreed upon, and thereafter Wells Fargo closely monitored the refinery’s operating performance. Although Wells Fargo held off exercising its undisputed foreclosure rights, throughout 1983 and 1984 the bank urged Simmons to initiate voluntary bankruptcy proceedings. During this time, Simmons attempted to sell assets and find equity partners or additional financing.
In 1984, Simmons, Wells Fargo, and Holly entered into an agreement which authorized the formation of Montana Refining Company (MRC), a partnership, to run the refinery. MRC assumed some of Simmons’ debt and a Holly subsidiary, Navajo Northern, Inc., became the sole general partner and took control of the refinery. Simmons’ subsidiary, SRC, the sole limited partner assumed a passive role in the refinery’s operation.
The remaining Simmons debt was restructured in January 1985, and Simmons executed two new notes totalling approximately $12.6 million. Mutual general releases were executed between Wells Fargo and all of Simmons’ entities, except SRC. This included releasing Mr. and Mrs. Simmons from their personal guarantees of the preexisting corporate debt. (Mr. Simmons is president of both SRC and SOC.)
Contacts between Wells Fargo and Simmons decreased substantially by late 1985, and Jerry Simmons had no conversations with any Wells Fargo officer or employee during the subsequent two years.
The 1985 restructuring agreement allowed an assignment by Wells Fargo of its rights and duties under the agreement. On April 25,1988, after several years of unfavorable refinery operations and minimal debt service, Wells Fargo sold Simmons’ and the MRC notes to Holly. This sale resulted from Holly’s assertions that the sale of the notes was Holly’s “stated price for continuing to support the refiner/’ and that it might tender its inventory to Wells Fargo and “walk awa/’ if the sale was not forthcoming.
Simmons had been negotiating with Wells Fargo directly regarding a purchase of the notes, but negotiations had broken down earlier in the month and prior to culmination of the sale between Holly and Wells Fargo, Wells Fargo rejected a proposal from Simmons for Simmons’ purchase of the notes on exactly the same terms and conditions as offered to Holly.
Simmons then filed this suit alleging that Holly and Wells Fargo wrongfully refused to allow it to purchase the debt on the same terms given to Holly and that the sale constituted a breach of fiduciary duty and bad faith.
While the foregoing chronology is not in contention, both parties, in their briefs, provide specific details surrounding these events which vary significantly. Simmons argues, and substantiates with documentation, that Wells Fargo exercised considerable control over the refinery’s operation between 1982 and 1984; that it forced Simmons into the partnership with Holly on terms and conditions specified by the bank; that it secretly negotiated with Holly when it assigned the debt; and that it knew that Holly planned to use the debt to force Simmons out of the partnership and avoid Holly’s partnership fiduciary duty to Simmons. Simmons’ allegations of breach of duty and bad faith are premised on these purported facts.
Wells Fargo maintains that the control exercised over Simmons was an attempt to work with Simmons to regulate costs and seek additional funding sources rather than exercising foreclosure rights on the assets. Wells Fargo notes that Simmons was free to reject Wells Fargo’s advice, and did, such as advice concerning filing for bankruptcy. Furthermore, Wells Fargo asserts that the sale constituted an exercise of an express and unrestricted contractual right; that Simmons was aware of Holly’s negotiations to purchase the debt from Wells Fargo and chose not to contact the bank with an offer to purchase the debt until after a Holly/Wells Fargo letter of intent was signed; and finally, that since the assignment right was unrestricted, a covenant of good faith and fair dealing should not be implied to vary the express, unambiguous terms of the contract.
BREACH OF FIDUCIARY DUTY
In Montana, “[t]he relationship between a bank and its customer is generally described as that of debtor and creditor ... and as such does not give rise to fiduciary responsibilities.” (Citation omitted.) Diest v. Wachholz (1984), 208 Mont. 207, 216, 678 P.2d 188, 193. However, in certain circumstances, a fiduciary duty may result from the development of a special relationship akin to an “advisor/advisee.” This “special” relationship must exist before a fiduciary duty arises. Deist, 678 P.2d at 193.
Appellant contends that respondent had a fiduciary duty to Simmons because it exercised substantial control over the operations of the corporation, thus providing the special relationship necessary to create a fiduciary duty. Respondent counters that Simmons’ rejection of the bank’s advice and subsequent retention of independent legal counsel terminated any fiduciary relationship there may have been.
Also, respondent states that Wells Fargo made their decision to sell the Simmons’ debts for “solid business reasons.” Furthermore, Wells Fargo had a right to assign the notes per the 1985 Restructuring Agreement.
“This Court has recognized that no fiduciary duty arises between a bank and its borrower where the bank did not offer financial advice, its advice was not always heeded, or where the borrower was advised by others, such as legal counsel.” Lachenmaier v. First Bank Systems, Inc. (1990), 246 Mont. 26, 33, 803 P.2d 614,619. Although Wells Fargo exerted considerable control over the business until 1984, appellants retained independent legal counsel in 1984 and 1985. Legal counsel advised Simmons concerning the 1984 Master Agreement and the 1985 Restructuring Agreement.
This Court, however, concludes that the Master Agreement definitively terminated any fiduciary duty that Wells Fargo may have had to Simmons. In the master agreement, SRC transferred all rights and assets of every kind and description, (with minor exceptions) to MRC, creating the Montana Refining Company limited partnership. SRC and Navajo Northern, Inc. filed a certificate of limited partnership with the Secretary of the State of Montana for the purpose of acquiring the assets of SRC. Navajo Northern was the general partner of the MRC and SRC was the limited partner.
Although Wells Fargo was involved in day-to-day operations of the refinery before 1984 exercising control over nearly every facet of the business, that close relationship was not evident thereafter. After the master agreement forming the limited partnership of MRC, Navajo Northern took over the management and control of MRC. There is no evidence that Wells Fargo continued to exercise daily control over the refinery once it became a limited partnership.
Wells Fargo’s direct contact with Simmons also decreased after the master agreement. The following excerpt from Jerry Simmons’ tran script reveals a drastic decline in communication between the plaintiff and the defendant in 1985 through 1987.
Q. Subsequent to August of 1985, through the end of 1987, how frequently did executives of Simmons entities have contact with personnel at Wells Fargo Bank?
A. Would you give me the time frame again?
Q. August of 1985 through the end of 1987.
MR. WISCH: Well, he’s already testified about the contact in November of ‘85.
MS. HYMANSON: In November ‘85.
MR. WISCH: So you want to start in August?
Q. BY MS. HYMANSON: Other than the contacts about buying the Simmons debt in November of 1985.
A. Until the end of 1987. There was probably communication between Wells Fargo and the Simmons Oil and Refining — Simmons Oil Corporation and Simmons Refining offices that would pertain to just the normal filing of tax returns and the submittal of financial information. But I believe that the only communication that I personally had with Wells Fargo was a conversation with Hardy Watford in November of 1987.
Simmons simply have not proved a fiduciary relationship between Simmons’ entities and the Wells Fargo Bank existed after the creation of MRC. See Pulse v. North American Land Title Co. (1985), 218 Mont. 275, 283, 707 P.2d 1105, 1110; Diest v. Wachholz (1984), 208 Mont. 207, 678 P.2d 188; First Bank (N.A.) - Billings v. Clark (1989), 236 Mont. 195, 208, 771 P.2d 84, 92. We conclude that Wells Fargo did not breach a fiduciary duty to Simmons because there was no fiduciary relationship between Wells Fargo and Simmons, after the 1984 Master Agreement.
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
a. Did Wells Fargo merely exercise its contractual rights or did its actions constitute a breach of the covenant of good faith and fair dealing implied in every contract?
Both parties agree that California law applies to the promissory notes at issue although the analysis would be the same under Montana law.
Simmons concedes that the 1985 restructuring agreement gave Wells Fargo the right to assign the Simmons debt, but argues that Wells Fargo’s decision to assign it to Simmons’ partner Holly, was subject to the implied covenant of good faith and fair dealing. Simmons contends that the sale of the notes to Holly was intentionally designed to give Holly leverage over Simmons and was not within the expectations of Simmons with respect to the 1984 master agreement or the 1985 restructuring agreement.
Although Wells Fargo agrees that the implied covenant of good faith and fair dealing applies to every contract, the bank states it cannot be used to override explicit contractual terms. Carma Developers v. Marathon Dev. Cal. (1992), 2 Cal. 4th 342, 374, 6 Cal.Rptr.2d 467, 826 P.2d 710, 728. The 1985 restructuring agreement contained language which stated: ‘WFB may assign this Agreement and its rights and duties hereunder.” Wells Fargo contends this language gave them the right to assign Simmons’ notes to anyone, including Holly. “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. ... The covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. Such power must be exercised in good faith.” Carma, 826 P.2d at 726. However, “[a]s to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct. And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.” Carma, 826 P.2d at 728. These are the principles by which we analyze whether Wells Fargo breached the implied covenant of good faith and fair dealing.
The acts and conduct authorized by express provisions of the contract at issue in Carma, above, are distinguishable from the provision at issue in the present case. Carma concerned a commercial lease which specifically provided that the landlord had the right to terminate the lease of the tenant at a fixed date after written notice from the tenant that tenant was going to assign the lease or sublease the rental premises. The lease also specifically provided the landlord may enter into a new lease for the premises with the intended assignee or sublessee or enter into a new lease with that person, and the tenant would not be entitled to any profit from the landlord due to termination of the lease and the reletting of the premises. The California Supreme Court concluded that the landlord’s use of this recapture clause was not a breach of the covenant of good faith since it was “expressly” permitted in the lease and was within the reasonable expectations of parties under the lease.
In the present case, the provision at issue is a general right to assign Wells Fargo’s rights and duties under the 1985 restructuring agreement. (See Farris v. Hutchinson (1992), 254 Mont. 334, 838 P.2d 374, for a case interpreting a specific express contract similar to the contract at issue in Carma.) Simmons does not dispute Wells Fargo’s right to assign its rights and duties as expressly provided for in the lease. Simmons, however, believes that it was not within their reasonable expectations that Wells Fargo’s discretionary right to assign would be used to assign the notes to Simmons’ partner, Holly Corporation.
This general right to assign Simmons’ notes provided in the restructuring agreement must be read with another clause from the agreement. Clause 13.7 states that “[t]he parties intend and agree that each of their respective rights, duties ... shall be performed ... and exercised reasonably and in good faith.” This clause, specifically placed in the contract at issue, provides that all rights under the contract, such as the right to assign the notes, will be conducted in good faith. This clause further supports Simmons’ argument that Wells Fargo breached the covenant of good faith and fair dealing.
Simmons contends that there is still further evidence that Wells Fargo breached the covenant of good faith and fair dealing. An interoffice memorandum requesting approval to sell the Simmons’ notes to Holly casts doubt on Wells Fargo’s intent in the sale. The applicable portion of the memorandum discusses the alternative to selling the notes to Holly and it states:
The alternative to the above, based upon comments from Holly Corporation, would be the cessation of MRC’s operation. Rather than continue funding 100% of both operating losses and required capital improvements, while receiving only 50% of any future profits, Holly Corporation has stated that it would tender its inventory guarantee to WFB and walk away. Depending upon the market value of the inventory at such time, it is questionable whether WFB would recover enough to pay off the non-accrual loan.
From a legal standpoint, this restructuring would take the form of WFB selling its entire creditor position in all the Simmons entities to Holly Corporation. Selling this position eliminates any need to approach Jerry Simmons or any of the Simmons entities for approval to modify the partnership agreement with respect to distributions, etc.
Approval of this restructuring is recommended.
A second memo reads in part:
I spoke with Ivy Parsons of Holly Corporation this morning to get an update on Holly’s progress in purchasing the Simmons’s entities notes .... Ivy plans to meet personally with Jerry Simmons next week and ask Mr. Simmons to sign an agreement that would waive any right of participation as a limited partner. In return for giving up any interest in the limited partnership, Mr. Simmons have (sic) his notes canceled and returned to him. This would would (sic) eliminate the risk that Holly could have a fiduciary responsibility to Jerry Simmons, and would also avoid the tax problems associated with original issue discounts.
Simmons insists that the meetings concerning the sale of the notes between Holly and Wells Fargo Bank were “secret” and that ‘Wells Fargo’s secret negotiations with Holly, Simmons’ partner, as well as its desire to change the profit distribution from the refinery without Simmons’ consent and to facilitate Holly’s squeeze play against Simmons, all demonstrated a complete lack of honesty or commercial reasonableness.” “Each party to a contract has a justified expectation that the other will act in a reasonable manner in its performance or efficient breach. When one party uses discretion conferred by the contract to act dishonestly or to act outside of accepted commercial practices to deprive the other party of the benefit of the contract, the contract is breached.” Marshall v. State (1992) 253 Mont. 23, 830 P.2d 1250, 1251; Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775.
The foregoing information leads the Court to believe that a genuine issue of material fact exists — whether Wells Fargo breached the covenant of good faith and fair dealing. We conclude that summary judgment on this issue was inappropriate and we reverse the District Court and remand for a proper determination.
b. Did a “special relationship” exist between Simmons and Wells Fargo to support a tort claim for bad faith?
Simmons appeals the court’s decision to grant summary judgment to the defendant on the issue of tortious breach of the implied covenant, claiming that Wells Fargo and Simmons have the “special relationship” necessary to support a tort claim. The essential elements of such a relationship are:
(1) the contract must be such that the parties are in inherently unequal bargaining positions;
(2) the motivation for entering the contract must be a non-profit motivation, i.e., to secure peace of mind, security, future protection;
(3) ordinary contract damages are not adequate because;
(a) they do not require the party in the superior position to account for its actions, and
(b) they do not make the inferior party “whole”;
(4) one party is especially vulnerable because of the type of harm it may suffer and of necessity places trust in the other party to perform; and
(5) the other party is aware of this vulnerability.
Wallis v. Superior Court (Kroehler Mfg. Co.) (1984), 160 Cal.App.3d 1109, 207 Cal.Rptr. 123, 129.
“If substantial evidence is not presented in support of each and all of the above essential elements, the court shall direct there is no special relationship.” Story, 791 P.2d at 776.
In the instant case, there is at least one element which is not supported by substantial evidence and therefore, there is no “special relationship.” The second element provides that the motive for entering the contract must be non-profit. The purpose for entering into this contract is business. It is a contract between two business entities whose goals are to make money. This is nothing like the “peace of mind” which motivates insureds in insurance contracts. The appellant has not presented any substantial evidence in support of the second element necessary to establish a “special relationship,” therefore, the trial court is affirmed on this issue.
CIVIL CONSPIRACY
The final issue is whether the trial court erred in granting summary judgment as to the claims against Wells Fargo alleging civil conspiracy with Holly to breach Holly’s fiduciary duty to Simmons. It is appellant’s contention that during the bank’s secret meetings with Holly, Wells Fargo purposefully agreed to structure the transaction in a way that “eliminates any need to approach Jerry Simmons or any of the Simmons entities for approval to modify the partnership agreement with respect to distributions, etc.” Moreover, Wells Fargo and Holly specifically discussed Holly’s intent to use the notes to force Simmons to surrender their 50% interest in the refinery. Finally, Simmons contends that the sale of the notes to Holly promoted breaches of Holly’s partnership fiduciary duty to Simmons and of Holly’s obligations under the implied covenant of good faith and fair dealing.
Respondent counters that the lower court ruled that “the Holly/Navajo defendants have not committed any wrongful act”, therefore, “there can be no civil action for conspiracy.” If Holly committed no wrong, then there can be no conspiracy between Wells Fargo and Holly because no conspiracy claim can exist if there is not an underlying unlawful act. Duffy v. Butte Teachers’ Union, Number 332, AFL-CIO (1975), 168 Mont. 246, 251, 541 P.2d 1199,1202.
We find respondent’s argument persuasive. After the lower court granted summary judgment to all defendants on all issues, Simmons appealed these decisions to the Supreme Court. Shortly thereafter, Simmons and Holly entered into a settlement agreement. Then Simmons filed a motion for voluntary dismissal of the appeal from the order of the District Court granting summary judgment for defendants Holly/Navajo. In the motion, Simmons stipulated that the judgment of the District Court, granting summary judgment to Holly, (including the civil conspiracy claim), was final and non-appealable. In a Supreme Court order dated February 25,1992, Simmons’ appeal was dismissed with prejudice as to any and all further appeals of Simmons’ claims against Holly, including the final judgment concerning the summary judgment motion.
The final judgment at issue (between Holly and Simmons) states that Holly committed no wrongful act. However, the necessary elements of a conspiracy include: (1) Two or more persons, and for this purpose, a corporation is a person; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Grenz v. Medical Management Northwest (1991), 250 Mont. 58, 62, 817 P.2d 1151, 1154. “[I]f the object of an alleged ‘conspiracy’ is lawful, and the means used to attain that object Eire lawful, there can be no civil action for conspiracy. The foregoing is true even though damage may result to the plaintiffs and even though defendants may have acted with a malicious motive.” Duffy, 541 P.2d at 1202. If Holly was not involved in any unlawful acts, there can be no conspiracy involving Wells Fargo either. Accordingly, the trial court did not err on the issue of Wells Fargo’s involvement in a civil conspiracy with Holly/Navajo when it granted Wells Fargo’s summary judgment motion.
Affirmed in part and reversed in part.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.
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] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Douglas Heath (Heath) entered guilty pleas to one count of theft, for violation of § 45-6-301(l)(a), MCA (1999), a felony, and one count of possession of burglary tools, a violation of § 45-6-205, MCA, a misdemeanor, and, on April 19, 2001, was sentenced to a term of ten years in the Montana State Prison, with two years suspended upon conditions, including payment of restitution. Heath appealed from the judgment, challenging the District Court’s imposition of restitution on several grounds.
¶2 On February 5, 2002, this Court entered an order, sua sponte, indicating that “we have determined that the trial court did not consider and the parties have not addressed an issue that may be dispositive of this appeal.” Our order referenced a footnote in this Court’s opinion in State v. Horton, 2001 MT 100, 305 Mont. 242, 25 P.3d 886, issued June 12, 2001, which explained that “an apparent codification error” in the 1999 amendments to § 46-18-201, MCA, had raised a question about a sentencing court’s continued authority to impose restitution as a condition of a suspended execution of sentence. Horton, ¶ 28, n. 3. We remanded for further consideration “[bjecause the trial court and the parties did not consider this issue and because the footnote reference in Horton is dicta,” and held the case in abeyance pending further proceedings in the District Court.
¶3 The District Court entered an order May 15,2002, concluding that the 1999 statutory amendments had not eliminated a sentencing court’s authority to impose restitution as a condition of a suspended sentence, and affirming Heath’s original sentence. Following supplemental briefing, we undertook review of all issues on appeal. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion.
¶4 We address the following issues:
¶5 1. Did the District Court err by requiring payment of restitution as a condition of the suspended portion of a sentence imposed for a crime committed after October 1, 1999?
¶6 2. Did the District Court err in ordering restitution because the Presentence Investigation Report contained insufficient information?
¶7 3. Was the amount of restitution ordered by the District Court supported by substantial credible evidence?
¶8 4. Did the District Court err by failing to establish the amount, method and time of restitution payments?
BACKGROUND
¶9 On June 5, 2000, Donald and Renate Cooper, en route on their move from Colorado to Washington, checked into a hotel in Billings. In the early morning hours of June 6, the Coopers were notified by hotel personnel that their vehicle had been broken into. Two suitcases and a bag containing clothes, books, a camera, miscellaneous items, and, particularly, a large jewelry collection, had been taken. The jewelry collection had been gifted to Renate Cooper (Cooper) by her mother, a resident of Germany who had accumulated the collection over a forty-year period. The collection consisted of over 120 pieces, including rings, bracelets, necklaces, pendants, broaches and earrings which held diamonds, pearls, sapphires, rubies, emeralds, quartz and other precious gems.
¶10 Police later arrested and charged Heath in connection with the crime. Part of the jewelry collection was recovered. Pursuant to a plea agreement, Heath entered guilty pleas to felony theft and misdemeanor possession of burglary tools, and a presentence investigation report (PSI) was thereafter completed, which included Cooper’s detailed itemization of the jewelry collection. Cooper estimated the value of the entire collection, which was not separately insured, to be $120,000. The PSI included documentation of a claim which the Coopers filed against their insurer, State Farm, and State Farm’s payment to the Coopers of $3,699.90 for various losses arising from the incident. The PSI recommended that Heath be ordered to pay restitution in the amount of $ 123,699.90, reimbursing the Coopers and State Farm for the respective amounts claimed. The PSI also noted that Heath had obtained his GED, that, though presently unemployed, Heath had been employed in construction and in restaurants, and that he had no assets and $1,000 in debts.
¶11 At the sentencing hearing, testimony by Cooper and from a jewelry expert, and other evidence regarding the value of the jewelry was offered. Heath testified that “I have always been employable here in town and made pretty good money” in the construction trade, stating he had made up to $24,000 a year. Heath stated that he accepted full responsibility for his actions, and testified that, upon release, he could make restitution payments of $100 or $200 per month. He indicated he had no debts other than a $1000 fine arising from another matter.
¶12 The District Court imposed a ten-year sentence to Montana State Prison, suspending two years “for the reason that I want you to have some additional opportunity to become employed and pay restitution.” The court imposed restitution in the amount of $22,500, and ordered a portion of Heath’s prison wages to be applied to his restitution obligation. The court further ordered that restitution would be made “in monthly payments on a schedule to be supervised and regulated by the Adult Probation and Parole” office. From the judgment, Heath appeals.
STANDARD OF REVIEW
¶13 This Court reviews a criminal sentence for legality. State v. Pritchett, 2000 MT 261, ¶ 6, 302 Mont. 1, ¶ 6, 11 P.3d 539, ¶ 6. Our review is confined to whether the sentence is within the parameters provided by statute. Pritchett, ¶ 6. We review a district court’s findings of fact to determine whether the findings are clearly erroneous, including those findings regarding the amount of restitution. State v. Hilgers, 1999 MT 284, ¶ 6, 297 Mont. 23, ¶ 6, 989 P.2d 866, ¶ 6.
DISCUSSION
¶14 1. Did the District Court err by requiring payment of restitution as a condition of the suspended portion of a sentence imposed for a crime committed after October 1, 1999?
¶15 Heath contends that the District Court was without authority to impose restitution as a condition of the suspended portion of his sentence under the 1999 amendments to § 46-18-201, MCA. His argument is understood by comparing the 1997 and 1999 versions of this statute.
¶16 Section 46-18-201, MCA (1997), provided, in pertinent part, as follows:
Sentences that may be imposed. (1) Whenever a person has been found guilty of an offense upon a verdict or a plea of guilty, the court may:
(a) defer imposition of sentence .... The sentencing judge may impose upon the defendant any reasonable restrictions or conditions during the period of the deferred imposition. Reasonable restrictions or conditions may include:
(1) - (xiv) [list of 14 restrictions and conditions]
(b) suspend execution of sentence.... The sentencing judge may impose on the defendant any reasonable restrictions or conditions during the period of suspended sentence. Reasonable restrictions or conditions may include any of those listed in subsection (l)(a).
(2) In addition to any penalties imposed pursuant to subsection (1), if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.
The language in subsection (2) requiring payment of restitution “[i]n addition to the penalties imposed pursuant to subsection (1)” was a clear directive for sentencing courts to impose restitution in addition to other penalties or conditions imposed for either deferred or suspended sentences, because “subsection (1)” included the restrictions imposed for deferred sentences, listed under subsection (l)(a), as well as the restrictions imposed upon suspended sentences, listed under subsection (l)(b).
¶17 The 1999 Montana Legislature enacted House Bill 48, “An Act Generally Revising and Clarifying Certain Sentencing-Related Criminal Procedure Statutes,” as Chapter 52, Laws of Montana (1999), which revised the structure of § 46-18-201, MCA. The new provision stated, in pertinent part, as follows:
Sentences that may be imposed. (l)(a) Whenever a person has been found guilty of an offense upon a verdict or plea of guilty ... a sentencing judge may defer imposition of sentence....
(b) ... [imposition of sentence in a felony case may not be deferred in the case of an offender who has been convicted of a felony on a prior occasion, whether or not the sentence was imposed, imposition of the sentence was deferred, or execution of the sentence was suspended.
(2) Whenever a person has been found guilty of an offense upon a verdict of guilty or a plea of guilty ... a sentencing judge may suspend execution of sentence....
(4) When deferring imposition of sentence or suspending all or a portion of execution of sentence, the sentencing judge may impose upon the offender any reasonable restrictions or conditions during the period of the deferred imposition or suspension of sentence. Reasonable restrictions or conditions imposed under subsection (l)(a) or (2) may include but are not limited to:
(a) - (o) [list of 15 restrictions and conditions]
(5) In addition to any penalties imposed pursuant to subsection (1), if the sentencing judge finds that the victim of the offense has sustained a pecuniary loss, the sentencing judge shall require payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.
Thus, the 1999 amendments to § 46-18-201, MCA, rearranged the provisions governing deferred and suspended sentences. Former subsection (l)(a) became, in part, new subsection (1), and former subsection (l)(b) became, in part, new subsection (2). Further, the 14 “restrictions and conditions” formerly listed as subsections (i) - (xiv) of subsection (l)(a), which constituted the “penalties” applicable to both deferred and suspended sentences, along with a 15th restriction added by Chap. 505, Section 1, Laws of Montana (1999), were rearranged as subsections (a) - (o) under new subsection (4). The mandatory restitution provision, formerly subsection (2), became new subsection (5).
¶18 However, the statute’s internal cross-references to these subsections were not correspondingly modified by the legislation. Thus, new subsection (5) still mandated that restitution be imposed “[i]n addition to any penalties imposed pursuant to subsection (1),” despite the legislation’s removal of the list of penalties from subsection (1) and placement of the list under new subsection (4).
¶19 Heath focuses on the recodification of former subsection (l)(b), which provided for suspended sentences, as new subsection (2). He argues therefrom that the 1999 amendments “seemingly mandate restitution, in addition to the other penalties imposed, only in cases in which a deferred sentence [is] imposed,” because new subsection (5) still refers to “subsection (1),” which now provides only for deferred sentences, while suspended sentences are now provided for in subsection (2).
¶20 In considering Heath’s argument, the District Court first noted that the “quandary raised by the recodification error ... results from Subsection (5) being silent as to the suspended execution of sentences,” and reasoned that because subsection (5) was not a prohibition of the imposition of restitution, the answer to the dilemma must be found by looking to other statutory provisions. The court then cited § 46-18-201(4)(n), MCA, which provides that a sentencing judge, when deferring imposition of sentence or suspending all or a portion of the execution of a sentence, may impose upon the offender:
(n) any other reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society[.]
The court noted that this Court had interpreted the identical provision in State v. Ommundson, 1999 MT 16, ¶ 11, 293 Mont. 133, ¶ 11, 974 P.2d 620, ¶ 11, wherein we stated:
The “rehabilitation” and “protection of the victim and society” referenced in the sentencing statute must be read in the context of the charged offense. Section 46-18-202(l)(e), MCA. That is, the objectives are: (1) to rehabilitate the offender by imposing restitution or requiring treatment so that he or she does not repeat the same criminal conduct that gave rise to the sentence; and (2) to protect society from further similar conduct.
Emphasizing Ommundson’s reasoning that restitution served to fulfill the statute’s objectives to rehabilitate the offender and protect society, the District Court concluded that these purposes were likewise served by Heath’s restitution order. Further noting that Ommundson required a sentencing condition to have a correlation or connection to the underlying offense, the District Court concluded that a correlation existed between Heath’s restitution requirement and his theft conviction.
¶21 The District Court’s interpretation of § 46-18-201(4)(n), MCA, is consistent with our repeated interpretation of substantially similar predecessor sentencing provisions. In addition to Ommundson, we held in State v. Blanchard (1995), 270 Mont. 11, 889 P.2d 1180, that, despite the defendant’s argument that restitution was expressly limited by statute to “offenders,” the district court could nonetheless require restitution for crimes the defendant had not been charged with, and was granted immunity for, pursuant to sentencing authority granted by § 46-18-201(l)(a)(xii), MCA (1991), which authorized the court to impose “any other reasonable conditions considered necessary for rehabilitation or for the protection of society.” See Blanchard, 270 Mont. at 17, 889 P.2d at 1184. Likewise, in State v. Shaver (1988), 233 Mont. 438, 449, 760 P.2d 1230, 1237, we approved the district court’s imposition of a child support condition “for rehabilitative and restitution purposes” pursuant to the sentencing authority of § 46-18- 201, MCA (1983 and 1985), which authorized “any other reasonable conditions considered necessary for rehabilitation.” Again, in Dahlman v. District Court (1985), 215 Mont. 470, 473, 698 P.2d 423, 425, we affirmed a sentence requiring the defendant to make restitution to the comity for medical expenses pursuant to § 46-18-201(l)(a)(ix), MCA (1981), which authorized imposition of “any other reasonable conditions considered necessary for rehabilitation or for the protection of society.” Restitution in these cases was affirmed despite the absence of express statutory authorization.
¶22 Lastly, in Horton, we rejected the State’s argument that a child support condition was authorized by § 46-18-202(l)(e), MCA (1997), which provided for conditions “reasonably related to the objectives of rehabilitation and the protection of the victim and society,” because, citing Ommundson, we concluded that this restitution requirement was unrelated to Horton’s DUI conviction. Horton, ¶ 28. However, unlike the sentence in Horton, Heath’s restitution order is directly related to his theft and the victim’s loss he caused thereby.
¶23 The above referenced holdings yield a consistent rule: a sentencing court is authorized to order restitution pursuant to sentencing statutes which allow reasonable restrictions or conditions considered necessary for rehabilitation or for the protection of the victim or society, when restitution is related to the crime for which a defendant is convicted. Given the District Court’s ruling consistent therewith, we would ordinarily affirm the judgment on that basis. However, it remains necessary to determine whether the 1999 revisions to the sentencing statutes in any way disturbed these holdings.
¶24 We are mindful of the rules of statutory construction that guide our review of the 1999 revisions. “Statutory construction is a ‘holistic endeavor’ and must account for the statute’s text, language, structure, and object.” S.L.H. v. State Compensation Mutual Insurance Fund, 2000 MT 362, ¶ 16, 303 Mont. 364, ¶ 16, 15 P.3d 948, ¶ 16 (citing United States Nat’l Bank v. Indep. Ins. Agents of Am., Inc. (1993), 508 U.S. 439, 455, 113 S.Ct. 2173, 2182, 124 L.Ed.2d 402, 418). “Our purpose in construing a statute is to ascertain the legislative intent and give effect to the legislative will. Section 1-2-102, MCA.” S.L.H., ¶ 16.
¶25 Further, our inquiry must begin with the words of the statutes themselves. “The legislative intent is to be ascertained, in the first instance, from the plain meaning of the words used.” Western Energy Co. v. Dept. of Revenue, 1999 MT 289, ¶ 11, 297 Mont. 55, ¶ 11, 990 P.2d 767, ¶ 11.
¶26 Subsection (5) of § 46-18-201, MCA (1999), provides that restitution must be ordered “[i]n addition to any penalties imposed pursuant to subsection (1).” A problem is immediately apparent from this plain reading: subsection (1) no longer imposes any penalties. All penalties formerly listed under subsection (1) in the 1997 statute-which were applicable to both deferred and suspended sentences-wer e placed by the 1999 amendments under new subsection (4). New subsection (1) now merely provides the time periods for which an imposition of a sentence may be deferred. On its face, then, subsection (5) presents an ambiguity about the Legislature’s intentions.
¶27 Subsection (5) is not the only Code provision addressing restitution. As the District Court noted, and as we recognized in State v. Brown (1994), 263 Mont. 223, 226, 867 P.2d 1098, 1100 (superseded on other grounds by § 46-18-241(1), MCA (1995)), there are “other statutes” which govern the imposition of restitution beyond the express authorization in § 46-18-201, MCA. Section 46-18-201(5), MCA (1999), acknowledges the same: “[T]he sentencingjudge shall require payment of full restitution to the victim as provided in 46-18-241 through 46-18-249.” (Emphasis added.) Indeed, the Code contains an extensive statutory framework governing restitution, and these provisions must also be considered. “We have many times stated that statutes must be read and considered in their entirety and the legislative intent may not be gained from the wording of any particular section or sentence, but only from a consideration of the whole.” Home Bldg. & Loan Ass’n of Helena v. Fulton (1962), 141 Mont. 113, 115, 375 P.2d 312, 313; see also State ex. rel. Holt v. District Court, 2000 MT 142, ¶ 7, 300 Mont. 35, ¶ 7, 3 P.3d 608, ¶ 7.
¶28 Section 46-18-241, MCA (1999), provides:
Condition of restitution. (1) As provided in 46-18-201, a sentencing court shall require an offender to make full restitution to any victim of the offense who has sustained pecuniary loss as a result of the offense, including a person suffering an economic loss as a result of the crime.
(Emphasis added.) This provision requires sentencing courts to require offenders to pay full restitution to “any victim,” and thus, would conflict with Heath’s assertion that restitution can be imposed only with deferred sentences. However, the directive here is prefaced by the phrase “[a]s provided in 46-18-201.” While it could be inferred that this provision is simply reiterating a requirement previously set forth in § 46-18-201, MCA, the ambiguity we have already noted in § 46-18-201(5), MCA, makes the intention of this statute uncertain as well.
¶29 Section 46-18-244(2), MCA, also mandates that restitution be imposed, and does so without reference to § 46-18-201, MCA:
In determining the amount, method, and time of each payment, the court shall consider the financial resources and future ability of the offender to pay. The court shall provide for payment to a victim of the full amount of the pecuniary loss caused by the offense.
(Emphasis added.) This provision requires that a victim be paid the full amount of financial loss caused by the offense, and does not link the requirement to the type of sentence imposed. However, this language is placed within a statute which primarily sets the payment parameters for a restitution obligation imposed pursuant to other authority. Thus, we cannot conclude that the imposition of restitution for all sentences is mandated by this provision alone.
¶30 Section 46-18-237, MCA, authorizes garnishment of income received by an offender who is in the custody of the Department of Corrections for payment of the offender’s restitution obligation. Because offenders who have received a deferred imposition of sentence are not placed in the custody of the Department of Corrections, Heath’s interpretation-that restitution can be imposed on deferred sentences only-would render this provision completely meaningless. Ironically, this garnishment requirement was imposed upon the custodial portion of Heath’s sentence.
¶31 Section 46-18-251, MCA, requires than an offender’s payments must be divided and allocated, first to restitution, and then to the payment of charges, supervisory fees, costs and fines which are imposed upon all felonies, including suspended sentences. See § 46-18-251(2), MCA, and the provisions referenced therein. Under Heath’s interpretation, these provisions, insofar as they govern the payment of restitution by offenders with suspended sentences, would also be rendered meaningless. “Statutes must be so construed that no word therein is to be considered meaningless, if such a construction can be reasonably found that will give it effect.” In re Wilson’s Estate (1936), 102 Mont. 178, 193, 56 P.2d 733, 736. “We are required to avoid any statutory interpretation that renders any sections of the statute superfluous and does not give effect to all of the words used.” State v. Berger (1993), 259 Mont. 364, 367, 856 P.2d 552, 554.
¶32 Section 46-18-201(1)(b), MCA, prohibits a second-time felony offender from receiving a deferred sentence. Thus, under Heath’s interpretation, a sentencing court would be authorized to order restitution for victims of first time felony offenders receiving a deferred sentence, but would be prohibited from ordering restitution for victims of repeat felony offenders. This is simply a consequence without reason. Indeed, it reaches the heights of illogicality. It has long been a rule of statutory construction that a literal application of a statute which would lead to absurd results should be avoided whenever any reasonable explanation can be given consistent with the legislative purpose of the statute. See Chain v. Dept. of Motor Vehicles, 2001 MT 224, ¶ 15, 306 Mont. 491, ¶ 15, 36 P.3d 358, ¶ 15; Darby Spar. Ltd. v. Dept. of Revenue (1985), 217 Mont. 376, 379, 705 P.2d 111, 113; State v. Millis (1927), 81 Mont. 86, 96, 261 P. 885, 889.
¶33 In sum, the ambiguity in the plain wording of subsection (5) of § 46-18-201, MCA; the resulting uncertain directives for payment of restitution for all victims in § 46-18-241(1), MCA, and § 46-18-244(2), MCA; the potential rendering of § 46-18-237, MCA, and § 46-18-251(2), MCA, as meaningless; and the potentially absurd consequences of the application of § 46-18-201(1), MCA, beckon us loudly to look beyond the words of the statutes and to inquire as to the Legislature’s purpose in enacting the 1999 amendments. It is abundantly clear that proper interpretation of the statutes here requires more than “simply to ascertain and declare what is in terms or in substance contained therein.” Section 1-2-101, MCA. “[WJhen the plain meaning of a statute is subject to more than one reasonable interpretation ... we will examine the legislative history to aid our interpretation.” State v. Legg, 2004 MT 26, ¶ 27, 319 Mont. 362, ¶ 27, 84 P.3d 648, ¶ 27.
¶34 House Bill 48 was introduced into the 1999 legislative session by Rep. Dan McGee. The testimony presented by McGee and other witnesses to the legislative committees is most enlightening to the issue raised here:
Before the House Judiciary Committee
January 7,1999
(By Rep. McGee): During the interim, there was established a correctional standards and oversight committee made up of eight Legislators.... After meeting several times, it was clear that both Title 45 and 46 are very difficult for the people of Montana to actually track and work through; particularly Title 46, and particularly, Title 46, Chapter 18.
Our committee contracted with a local attorney by the name of Lou Foust to actually do the research and redraft of Title 46, Chapter 18.
If you take the bill, and don’t try to read anything, but just thumb through it for a moment, you are going to see two things: you’re going to see a whole lot of language that’s stricken, and you’re going to see a whole lot of language that’s underlined. It’s basically the same. All that’s happened is that the organization of Title 46 [Chapte?'] 18 has been reworked, and so that the language is taken from one place and put over to another place ... and that’s basically what the bill does.
(By Lou Foust): As Rep. McGee explained it, [Title] 46 [Chapter] 18 has been confusing and rife with cross-references and internal references. My job was to clarify this and streamline the statute so that its workable, so you don’t have to go to four separate sections to understand where the bill is going and what the statute means. Basically, my job, in a nutshell, was to make sensible changes, not to mess with or deal with the substantive areas of the statute. . . . [D]espite the fact that I work as a public defender and generally I work as a defense attorney, it was my goal, my objective, to see that there was no policy.... And to avoid that it was checked by members of the Attorney General’s office to make certain that we didn’t set policy. Ultimately ...no substantive changes are mentioned in this statute.
(By John Connor, Attorney General’s office): [W]e [Attorney General’s office] are in agreement that there are no substantive changes in this bill that ought to be considered by the Legislature. (By Rep. McGee, in closing): This is a good bill, it’s a clean bill, and it is a housekeeping matter.
Before the Senate Judiciary Committee
March 3, 1999
(By John Connor): There is not anything substantive in here or that might be considered substantive. We’ve [Attorney General’s office] gone through every aspect of this bill. Although its difficult to track, when you see deleted portions of the current statute, they are somewhere else or they are summarized somewhere else so that they read more accurately.
Mont. H. Jud. Comm., Hearing on H.B. 48, 56th Leg., Reg. Sess. 1 (Jan. 7, 1999); Mont. S. Jud. Comm., Hearing on H.B. 48, 56th Leg., Reg. Sess. 1 (Mar. 3, 1999) (emphasis added). Further, House Bill 48, as enacted, contained several “whereas clauses” setting forth the purpose of the bill, including the following:
WHEREAS, the [Correctional Standards and Oversight] Committee contracted for a review of Title 46, chapter 18, MCA, sentencing statutes; and
WHEREAS, the Committee found that the statutes providing for sentencing and judgment regarding criminal procedures are confusing and rife with cross-references, internal references, and inconsistent terminology that make the statutes difficult to read and understand; and
WHEREAS, the Committee recommended that a bill be drafted to amend Title 46, Chapter 18, MCA, to make nonsubstantive changes to clarify and streamline the statutes to eliminate contradictions, confusion, inconsistent terminology, and excessive internal references.
Chapter 52, Laws of Montana (1999) (emphasis added). Thus, the Legislature’s purpose was simply to “clarify” and “streamline” the sentencing statutes, and, as repeatedly articulated throughout the legislative process, to make no substantive changes to the law whatsoever. Needless to say, elimination of a sentencing court’s authority to impose restitution as a condition of suspended sentences would constitute a substantive and significant change in the law. However, it cannot be disputed that the Legislature neither considered nor intended any such change. While we are to “presume that the legislature, in adopting an amendment to a statute, intended to make some change in existing law,” Foster v. Kovich (1983), 207 Mont. 139, 144, 673 P.2d 1239, 1243, this rule of construction is only what it is-a presumption. Here, that presumption has been irrefutably rebutted by clear evidence from legislative history.
¶35 A final interpretational guide is important: “The reviewing Court must adopt a construction of the statute which renders the statute constitutional in preference to one which renders it invalid.” State v. Helfrich (1996), 277 Mont. 452, 454, 922 P.2d 1159, 1160. Article II, Section 28, of the Montana Constitution provides:
Criminal justice policy-rights of the convicted. Laws for the punishment of crime shall be founded on the principles of prevention, reformation, public safety, and restitution for victims.
(Emphasis added.) The phrase “restitution for victims” was added to this constitutional provision by way of referendum approved in 1998 and effective on July 1, 1999, and requires criminal statutes to be founded upon principles of restitution for victims of crime. Adopting Heath’s interpretation, and thereby eliminating the sentencing court’s ability to impose restitution upon an entire class of sentences, would facially conflict with the requirement of Article II, Section 28, that law for the punishment of crime be founded upon the principle of restitution for victims.
¶36 Therefore, in consideration of these multiple guides to interpretation, including review of legislative history, we conclude that the reference made in subsection (5) of § 46-18-201, MCA (1999), to “the penalties imposed pursuant to subsection (1)” was a simple codification error which was not intended to make any change in the substance or effect of the statute. The re-codification of the statute under House Bill 48 resulted in a cross reference error which was completely inconsistent with clear legislative intent. We further conclude that it was the Legislature’s full intention that subsection (5) cross-refer, not to subsection (1), but to subsection (4), which contains all of the penalties and conditions which may be imposed for both deferred impositions of sentences and for suspensions of sentences.
¶37 This Court will not permit legislative intent to be thwarted, and the whole of the judiciary’s sentencing authority to be undermined, by a mere scrivener’s error. Further, the interpretation of § 46-18-201(5), MCA (1999), we have adopted today will give effect to the other statutory provisions providing for and implementing the payment of restitution to victims under suspended sentences which would otherwise be rendered meaningless or uncertain.
¶38 Having determined that the Legislature did not eliminate the express authority of sentencing courts to impose restitution for any sentence, we also conclude that it did not disturb the line of cases, referenced herein, which have interpreted the sentencing provision now set forth as § 46-18-201(4)(n), MCA (1999). Sentencing courts remain authorized to impose restitution when “considered necessary for rehabilitation or for the protection of the victim or society,” as held by the District Court, when there is an appropriate correlation to the offense committed.
¶39 The District Court’s imposition of restitution herein is affirmed.
¶40 2. Did the District Court err in ordering restitution because the Presentence Investigation Report contained insufficient information ?
¶41 Heath argues that the District Court erred in imposing restitution because the PSI contained insufficient information to satisfy § 46-18-242(1), MCA (1999), which provides:
(1) Whenever the court believes that a victim of the offense may have sustained a pecuniary loss as a result of the offense or whenever the prosecuting attorney requests, the court shall order the probation officer, restitution officer, or other designated person to include in the presentence investigation and report:
(a) documentation of the offender’s financial resources and future ability to pay restitution; and
(b) documentation of the victim’s pecuniary loss, submitted by the victim ....
Although acknowledging that the PSI included “some” of this information, Heath contends that it was insufficient to satisfy the statute, citing our holdings in Brown, Hilgers and Pritchett that the respective presentence reports in those cases were deficient. Heath asserts that his PSI inadequately documented his resources, his future employability and ability to pay restitution and the victim’s pecuniary loss.
¶42 Heath’s PSI noted that he was currently unemployed and without income, but that he “has worked construction and in restaurants in the past.” It indicated that he had completed 11 grades in school and had also obtained a GED. It noted that he had no assets, had debts of $1,000, and had no support obligation for his three children. The report stated that Heath had family in the Billings area and that Heath should be required to “secure and maintain full-time, legitimate employment.”
¶43 In State v. Flanagan, 2003 MT 123, ¶ 39, 316 Mont. 1, ¶ 39, 68 P.3d 796, ¶ 39, we approved a PSI with similar information, under the same statutory requirements:
§ 46-18-242, MCA (1997), requires “documentation” of the resources and loss. It does not require separate documents. The presentence investigation report documents Flanagan’s income of $ 629 per month from social security, his assets of $ 6,000 and debt-free status, and the victim’s treatment costs not covered by insurance of $ 4,945.31 for counseling, medications and ahospital stay. We conclude the documentation contained in the presentence investigation report is sufficient with regard to his income and assets and the victim’s existing pecuniary loss.
We approved a similar documentation of resources and ability to pay in State v. Dunkerson, 2003 MT 234, ¶ 19, 317 Mont. 228, ¶ 19, 76 P.3d 1085, ¶ 19, where the PSI listed assets of $2,500, debts of $7,000, income of $1,000 per month and noted that “Dunkerson was currently capable of paying restitution.”
¶44 The deficiencies noted in the respective PSI reports discussed in Brown, Hilgers and Pritchett were not present in Heath’s PSI. Further, we conclude that Heath’s PSI sufficiently documented his resources, future employability and ability to pay, as it was comparable to the reports which we approved in Flanagan and Dunkerson.
¶45 Heath also contends that the PSI insufficiently documented the victim’s claimed pecuniary loss of $120,000. He relies on our holding in Pritchett, ¶ 11, that evidence later introduced at the sentencing hearing cannot cure an insufficient PSI where there is no agreement between the parties for restitution to be determined by the sentencing court. He notes that the parties had no such agreement here.
¶46 Heath’s PSI stated that restitution in the amount of $ 120,000 was owed to Cooper and $3,699.90 was owed to State Farm for payments made to Cooper. Attached to the PSI was a three-page itemization of missing jewelry prepared by Cooper which noted that the value of the entire collection was $120,000, a victim impact statement which also noted the value of the entire collection, a financial loss statement by Cooper itemizing the items which were missing other than the jewelry and valuing those items at $2,500, and a letter with supporting documents from State Farm.
¶47 Heath correctly notes that evidence concerning the precise value of the missing items of jewelry was not offered until the sentencing hearing, when testimony was given by an appraiser. However, we conclude that the substantial information set forth in the PSI and the attachments thereto satisfied the requirement to provide “documentation of the victim’s pecuniary loss, submitted by the victim ...” Section 46-18-242(l)(b), MCA (emphasis added). Therefore, we conclude that Heath’s PSI satisfied all statutory requirements.
¶48 3. Was the amount of restitution ordered by the District Court supported by substantial credible evidence?
¶49 The District Court ordered Heath to pay restitution in the amount of $22,500. Heath briefly argues that this amount was not supported by substantial credible evidence. We review a district court’s findings of fact regarding the amount of restitution to determine if they are clearly erroneous. Hilgers, ¶ 6.
¶50 At the sentencing hearing, Hal Hendrickson, a qualified expert in jewelry appraisal, testified that the total replacement value of the 54 pieces of jewelry which had been recovered was $31,400, and that the fair market value of that jewelry was half that amount, or $15, 700. Hendrickson did not offer an opinion regarding the value of the 75 pieces which were still missing. Renate Cooper also testified concerning the value of the jewelry.
¶51 The District Court concluded that, although the evidence did not support valuing the entire collection at $120,000, “Ms. Cooper’s testimony is very credible regarding the items that remain missing... particularly based upon her ability to describe in detail each of those items and the photographs that support that description ....” Citing Cooper’s testimony, and making comparison to the expert testimony offered by Hendrickson about the value of the recovered items, the District Court concluded that the fair market value of the missing items was $22,500. Heath argues this figure is “nothing but conjecture.”
¶52 We conclude that the District Court’s valuation was not clearly erroneous. First, the District Court was careful to calculate restitution based upon a fair market value of the missing items, see Pritchett, ¶ 24, and not replacement value, acknowledging that “I do not, by any means, necessarily think that this amount of money will make Ms. Cooper whole.” Cooper gave detailed testimony, with photographs, about the 75 missing items. Hendrickson offered expert testimony about valuation based upon the 54 recovered items, against which the missing items could be compared. The court found Cooper’s testimony “very” credible. “The credibility of witnesses and the weight to be given their testimony are determined by the trier of fact, whose resolution of disputed questions of fact and credibility will not be disturbed on appeal.” Hilgers, ¶ 12. We affirm the amount of restitution ordered by the District Court.
¶53 4. Did the District Court err by failing to establish the amount, method and time of restitution payments?
¶54 Heath argues that the District Court erred by failing to set the “amount, method, and time of each payment to the victim,” as required by § 46-18-244(1), MCA. In the judgment, the District Court ordered Heath to pay restitution “on a schedule to be supervised and regulated by the Adult Probation and Parole Field Services.”
¶55 The State acknowledges that the court’s order did not “technically comply” with the statute, but argues that the purposes of the statute were nonetheless accomplished. However, we have repeatedly required compliance with this statutory provision. See Brown, 263 Mont. at 227, 867 P.2d at 1101; Prichett, ¶ 16; and Flanagan, ¶ 44. Thus, we reverse this portion of the judgment and remand for an amendment properly addressing the time and method of Heath’s restitution payments.
¶56 Affirmed in part, reversed in part, and remanded for further proceedings.
CHIEF JUSTICE GRAY, JUSTICES WARNER, REGNIER, LEAPHART, COTTER and NELSON.
Section 46-18-201, MCA, was also amended by Chapters 395,432 and 505, Laws of Montana (1999), but these revisions are not at issue here, and therefore are not included in this opinion’s reference to the “1999 amendments.”
The additional sentencing restriction enacted by Chap. 505 was related to the reasonable restrictions or conditions imposed under subsection (l)(a) or (2)-“with the approval of the department of corrections and with a signed statement from an offender that the offender’s participation in the boot camp incarceration program is voluntary, an order that the offender complete the boot camp incarceration program established pursuant to 53-30-403.” This restriction was codified as § 46-18-20 l(4)(m), MCA (1999).
Dicta in Blanchard, unrelated to the precise issue here, has heen overruled. See Ommundson, n.2.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Roberta Drew (Drew) challenges, by way of Petition for Writ of Certiorari, the Order of the Montana Tenth Judicial District Court, the Honorable Loren Tucker presiding, finding her in contempt of court and imposing sanctions including the service of jail time. Drew’s Writ is denied.
ISSUE
¶2 The only issue in this case is whether the amendment to § 3-1-518, MCA (2001), which permits a judge to punish a contempt arising from violations of an order issued by that judge after a hearing on the merits of the order, offend due process in contravention of our Opinion in Kauffman v. 21st Judicial Dist. Court, 1998 MT 239, 291 Mont. 122, 966 P.2d 715.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The contempt proceedings before us arose out of the case of State of Montana, v. Donna June Enright, DC 96-3003, pending in the Montana Tenth Judicial District Court, Judith Basin County. Drew was appointed to represent Enright on or around May 1, 2003, for the purposes of filing an amended petition for post-conviction relief. On June 16, 2003, the District Court ordered Drew to file and serve the amended petition for post-conviction relief on or before July 18, 2003. On July 11, 2003, Drew moved for an extension of time, which the court granted through August 29, 2003. Subsequently, on September 2,2003, Drew again moved for an extension of time to file the amended petition, and the court again granted her motion, extending its deadline until October 3, 2003. No amended petition was filed by the deadline, nor did Drew offer any explanation for failing to file the petition.
¶4 On November 26, 2003, the Honorable Loren Tucker received from Enright directly a pro se petition for writ of mandate. Enright requested assistance from the court to proceed with her petition for post-conviction relief in light of the failure of her attorney to take any action on her behalf. Following receipt of this pro se petition, and having heard no explanation from Drew for her failure to file the amended petition for post-conviction relief on Enright’s behalf, the District Court issued its first Order to Show Cause on December 4, 2003. The court ordered Drew to appear before it in Dillon, Montana, on January 13, 2004, either in person or by video conference, to show cause why she had not filed the amended petition for post-conviction relief on behalf of her client. On January 13, 2004, the date scheduled for the hearing, Drew filed a written motion to continue the hearing, representing that she had been preoccupied with family emergencies including the death of her mother in October 2003, and the repeated hospitalizations of her husband since August 2003. Accordingly, Drew did not appear in court on January 13, 2004.
¶5 On January 15,2004, the District Court entered its Second Order to Show Cause. In this Order, the court extended its sympathy to Drew, but noted that seven and one-half months and four continuances had passed with nothing at all tangible having been produced by Drew on behalf of Enright. The court therefore directed Drew to appear on February 5,2004, at the courthouse in Dillon, Montana, to show cause why she had not filed the amended petition for post-conviction relief, to provide corroboration from credible sources of the assertions of the family hardships she has encountered, and to provide to the court a realistic written schedule including deadlines for action to be taken on Enright’s behalf. The court also directed Drew to show cause why she should not be sanctioned for delay and inattention to her client’s concerns and for her failure to comply with two previous court orders, and to show cause why her conduct should not be reported to appropriate agencies.
¶6 On February 5, 2003, Drew appeared in court with counsel in response to the Second Order to Show Cause. During the hearing, Drew explained in detail the family and health issues she had been undergoing, and also described her personal bouts with depression and anxiety. Drew represented that as a consequence of these problems, she had not been able to accomplish the task assigned to her. During that hearing, the transcript of which is 31 pages in length, the court questioned Drew about her personal problems, her caseload, and the work that she had done and anticipated completing on Enright’s behalf. The court extended its sympathies to her for her problems but advised Drew candidly that she had lost credibility with the court for her failure to previously advise the court of her personal problems when seeking earlier continuances, and because the court was frustrated by the fact that Drew had consistently failed to take action on behalf of her client until she was ordered to show cause why she should not be held in contempt. Ultimately, Drew apologized to the court for her failings, and represented to the court that based upon her review of the file and discussions with the Appellate Defender’s Office, it was her intention to file a motion to withdraw together with accompanying Anders brief on or before February 13, 2004. The court then advised Drew that she would not be thrown in jail and would not be fined, premised upon her representation that she would be filing these substantive pleadings by February 13, 2004. The court said that upon receipt of these documents, it would consider the difficulty of the situation and that fact that Drew had to travel to the show cause hearing, as sufficient sanction.
¶7 No documents were filed by Drew by February 13, 2004. On February 19, 2004, Judge Tucker telephoned Drew. Unable to reach her, he left a telephone message directing Drew to act immediately to demonstrate why she ought not be severely sanctioned, including jail time. Drew neither returned the court’s call or filed any further documents. Accordingly, on March 4, 2004, the District Court issued a third Order to Show Cause, requiring Drew to personally appear before the court on March 25, 2004, to show cause why she should not be sanctioned by fine or jail or both for her failure to act on behalf of her client, for her misrepresentation to and deception of the court, and for her failure to comply with the court’s order to file the appropriate pleadings by February 13, 2004.
¶8 Drew appeared in person and with counsel, Kris CopenhaverLandon, at the hearing of March 25,2004. Prior to the commencement of the hearing, Drew filed a Motion to Withdraw as Counsel of Record for Enright. At the hearing, Counsel Copenhaver-Landon represented that Drew understood the charges with which she was faced, and stated that if the court was anticipating a criminal contempt situation, then Drew would ask for a neutral magistrate. Otherwise, they were prepared to go forward. In response, the court indicated it was not going to conduct a summary proceeding, but would proceed instead under § 3-1-518, MCA, which allows a party to appear with counsel and give evidence. The court pointed out that under § 3-1-518(1), MCA, the judge who issues an order that is disobeyed may proceed with a hearing on the merits of the subject order and then punish the contempt “unless it is shown that the judge would not be impartial in addressing the contempt.” The court then gave Drew the opportunity to present any evidence she might have to demonstrate that it could not be impartial. No such evidence was offered at that point. Counsel then inquired whether the court would accept notes from various Billings physicians relative to Drew’s medical condition. The court refused to accept the notes on the basis of their hearsay status, and declined to grant a continuance to allow the physicians to be subpoenaed because of the lengthy delay Drew’s client had already suffered.
¶9 Following an opening statement by her attorney, Drew was sworn and testified. Although the court had denied the admission of a medical record of her kidney infection, the court allowed Drew to refer to the report to document the dates and times when the illness had afflicted her. Drew attempted to explain why her ailments and the ailments of family members had prevented her from acting on behalf of Enright. She also advised the court that she had just filed her motion to withdraw as counsel for Enright together with supporting brief. The court reviewed the motion in Drew’s presence and expressed dissatisfaction with its content and with her representations that she had performed services for her client. The court then advised Drew that she had no credibility with the court.
¶10 At this juncture, counsel for Drew renewed her request for a neutral magistrate, contending that based upon the court’s comments, the matter should not be heard in front of Judge Tucker. The motion was denied. Judge Tucker explained that it was his day-to-day duty to assess credibility, and that a finding that a person lacks credibility is not an indication of impartiality or lack of neutrality. Following this exchange, counsel represented that Drew had filed with the court the appropriate documents in response to the rule to show cause, and therefore submitted that she had purged herself of contempt. The court asked counsel if she had submitted everything she would like to submit on behalf of Drew and counsel answered in the affirmative.
¶11 The court then gave a detailed explanation of the reasons it found Drew lacking in credibility and concluded beyond a reasonable doubt that Drew’s explanations were without justification or plausibility. Drew’s counsel then attempted to explain why Drew failed not only to file the promised pleadings on February 13,2004, but failed to respond to the court’s telephone call or take any further action until March 25, 2004.
¶12 The court stated for the record its dissatisfaction with the motion to withdraw, finding it was not the Anders brief which Drew represented she would file and concluding that the short petition contained no analysis. The court then found that Drew had failed to comply with the court order and that her explanations for failure to do so were not persuasive. The court further found that Drew’s efforts to explain her conduct over the preceding ten months constituted a willful deception and misrepresentation to the court, and that Drew had failed to abide by the minimum requirements of professional responsibility required for action on behalf of her client. The court concluded that the evidence supporting these findings was beyond a reasonable doubt and that Drew should therefore be sanctioned.
¶13 Counsel for Drew then stated that because there was no necessity for immediate action to restore the dignity of the court, she would again ask to have the matter brought before a different court. The court declined to grant the request. After indicating that it would enter its order in due course, the court recessed the proceedings.
¶14 On April 1, 2004, the District Court entered the Decision and Order which gave rise to these proceedings. In its Order, the District Court concluded that Drew failed to provide any credible or plausible explanation for her failure to comply with its Orders. Addressing Drew’s Motion to Withdraw as Counsel of Record, the court noted that the motion consisted of only three pages, and only one sentence to the effect that she could not find any non-frivolous issues which might support Enright’s Petition for Post-Conviction Relief. The court also concluded that Drew’s explanations for her failure to act were “barely plausible, not credible, and totally unpersuasive.” The court concluded that the evidence demonstrated beyond a reasonable doubt that Drew had willfully neglected and violated her duty to represent her client, and had violated an order of the court which was within her power to fulfill. The court further concluded that Drew’s conduct constituted misrepresentation to and deception of the court and that her client had suffered for her failures. The court therefore entered an Order removing Drew from her representation of Enright, and ordering Drew to report to the Judith Basin County Jail for a period of thirty (30) days, commencing April 16, 2004. The court suspended all but seven (7) days of the jail sentence on the condition that Drew reimburse the entity or agency which had compensated her for her expenses involved in representing Enright, and that she file with the court and the affected agency a request for relief from the obligation of reimbursement in the event she believed it would be impossible for her to make reimbursement. The court also fined Drew $500.00, which would be suspended upon the complete reimbursement.
¶15 On April 15, 2004, the day before she was to report to jail, Drew filed the Petition for Writ of Certiorari and Motion for Emergency Stay Order which commenced these proceedings. On April 20, 2004, we issued an Order staying execution ofthe District Court Judgment and Sentence in the contempt proceedings until further Order ofthe Court, and granting leave to the District Court of the Tenth Judicial District, the Office of the Attorney General, and the Montana Association of Criminal Defense Lawyers, to file briefs directed to the merits of Drew’s Petitions. All three parties have now filed their briefs and this matter is therefore ripe for determination.
DISCUSSION
¶16 Drew asserts that she was denied her right to full process, including the right to allocution, the right to a hearing before a neutral magistrate, and the right to present testimony through witnesses by way of defense or explanation. She therefore maintains her incarceration and other punishment is unlawful.
¶17 As noted in ¶ 8 above, the court asserted that it was proceeding under § 3-1-518, MCA (2001), which provides:
Hearing on contempt not committed in immediate view and presence of court or judge at chambers. (1) When a person arrested for a contempt not committed in the immediate view and presence of the court or judge at chambers has been brought up or appeared, the court or judge shall proceed to investigate the charge, shall schedule and hold a hearing on any answer that the person arrested may make to the charge, and may examine witnesses for or against the person, for which an adjournment may be had from time to time, if necessary. The judge investigating the charge and scheduling and presiding over the hearing may not be the judge against whom the contempt was allegedly committed, except that if the contempt arose from the violation of an order of the court issued after a hearing on the merits of the subject of the order, the judge who issued the order may punish the contempt or compel compliance with the order unless it is shown that the judge would not be impartial in addressing the contempt. (Emphasis added).
(2) the charged person must be given a reasonable opportunity to obtain counsel and prepare a defense or explanation prior to the hearing. The charged person may testify and call witnesses at the hearing.
¶18 Drew and amicus Montana Association of Criminal Defense Lawyers (MACDL) argue that we should be guided here by our decision in Kauffman v. 21st Judicial Dist. Court, 1998 MT 239, 291 Mont. 122, 966 P.2d 715. In Kauffman, this Court granted Kauffman’s petition for writ of certiorari and reversed the district court’s finding of contempt. In so doing, we addressed the various contempt statutes found in Title III, Chapter 1, section 5. Significantly, however, at the time Kauffman was decided, there was in existence a much abbreviated version of § 3-1-518, MCA, which bore little resemblance to the 2001 version under which Judge Tucker proceeded in this matter. Section 3-1-518, MCA (1999) provided as follows:
Hearing. When the person arrested has been brought up or appeared, the court or judge must proceed to investigate the charge, must hear any answer which the person arrested may make to the same, and may examine witnesses for or against him, for which an adjournment may be had from time to time, if necessary.
¶19 In Kauffman, we said that while a district court may subject a contemnor to summary contempt proceedings in those circumstances in which the individual’s misconduct occurred directly before the court and threatened the court’s immediate ability to conduct its proceedings, full due process should be accorded in those cases in which it is not necessary for a court to take instant or immediate action. Kauffman, ¶¶ 24 and 27. We noted that in Lilienthal v. District Court, Etc. (1982), 200 Mont. 236, 650 P.2d 779, we concluded that due process required:
that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either by way of defense or explanation. (Citations omitted).
Lilienthal, 200 Mont. at 242, 650 P.2d at 782. We also cited our Opinion in Malee v. Dist. Court, Silver Bow County (1996), 275 Mont. 72, 911 P.2d 831, in which we set forth the same list of due process requirements that were laid out in Lilienthal.
¶20 Concluding that Kauffman’s conduct may well have satisfied the elements of § 3-1-501, MCA, we stated that contempt proceedings issued pursuant to that statute must provide for more due process protection for the contemnor than would be provided in a summary contempt proceeding. We concluded:
In cases in which it is not necessary for a court to take instant action, however, a contemnor is entitled to full due process. This includes a hearing before a neutral judge, during which the contemnor is advised of the charges against him or her, has a reasonable opportunity to meet them by way of defense or explanation, has the right to be represented by counsel, has a chance to testify and call other witnesses on his behalf, and, in instances in which criminal punishment is a consequence, a finding of guilt beyond a reasonable doubt.
Kauffman, ¶ 33. In reversing the judgment of the district court, we concluded that because Kauffman’s conduct did not necessitate immediate action, a summary contempt proceeding by the same judge was not necessary and violated her due process rights. We therefore remanded for a hearing in front of a different judge. Kauffman, ¶ 35.
¶21 Drew argues that the safeguards announced in Kauffman were denied to her. She contends her punishment is unlawful because she was denied her right to full due process, including the right to allocution, the right to a hearing before a neutral magistrate, and the right to present testimony through witnesses by way of defense or explanation. She also claims there was an insufficient showing upon which the court could have found her guilty of contempt beyond a reasonable doubt.
¶22 Amicus MACDL acknowledges that when Kauffman was decided, the Montana statutes relating to contempt, found in Title III, did not cover the issue presently before the Court. Citing the amendments to § 3-1-518, MCA, made by the 2001 Legislature, MACDL maintains that the changes made to the statute do not change the rule of Kauffman that an alleged contemnor is still entitled to a neutral judge. In the alternative, MACDL argues that if we determine that the changes the 2001 Legislature made to § 3-1-518, MCA, have somehow overruled Kauffman, we should announce a new rule to the effect that any judge who makes a finding about the credibility of a contemnor prior to a contempt hearing, must be disqualified as a matter of due process.
¶23 In its response to the constitutional challenge, the Attorney General maintains that § 3-1-518, MCA (2001), is neither overbroad nor void for vagueness. It also maintains that indirect contempt may be punished with either civil or criminal sanctions, and that the authority for these sanctions is found in §§ 3-1-511 and 3-1-520, MCA. Finally, it argues that the power to inflict punishment for contempt is an inherent power, with its roots in common law, citing State v. District Court (1916), 52 Mont. 46, 155 P. 278. The Attorney General maintains that Drew has failed to sustain her burden of proving that the statute is unconstitutional beyond a reasonable doubt.
¶24 The Tenth Judicial District Court also filed a response to Drew’s Petition. In it, the District Court defends its action under § 3-1-518, MCA (2001), contending it complied in all respects with the amended provisions of the statute and with the requirements of due process. The District Court asks us to defer to the policy implemented by the Legislature when it amended § 3-1-518, MCA, and to find that Drew was accorded full due process under the statute. In that regard, it points out that Drew was advised of the charges in the Order to Show Cause of March 4, 2004 and given until March 25 to prepare for the hearing, and that Drew has not complained she had insufficient time. Moreover, Drew was represented by counsel, and was sworn as a witness at the hearing and provided an opportunity to call other witnesses, all as required under the provisions of § 3-1-518(1) and (2), MCA.
¶25 As noted above, in both Lilienthal and Malee, we held that due process required notice of the charges against the contemnor, a reasonable opportunity to meet them by way of a defense or explanation, the right to be represented by counsel, and the right to testify and call other witnesses on one’s behalf. In reaching this conclusion in 1982 and again in 1996, we relied upon the United States Supreme Court case of In re Oliver (1948), 333 U.S. 257, 275, 68 S. Ct. 499, 508-09, 92 L. Ed. 682, 695. The additional due process component of the right to have a neutral judge did not enter our contempt of court due process jurisprudence until Kauffman was decided in 1998. Notably, then, after we decided Kauffman, HB 208, amending § 3-1-518, MCA was presented to and adopted by the Legislature. In the amended version, the Legislature provided that a judge investigating a contempt charge and presiding over a hearing of a person whose contempt was not committed in the immediate view and presence of the court, may not be the judge against whom the contempt was allegedly committed. However, the Legislature added the following caveat:
except that if the contempt arose from the violation of an order of the court issued after a hearing on the merits of the subject of the order, the judge who issued the order may punish the contempt or compel compliance with the order unless it is shown that the judge would not be impartial in addressing the contempt.
Section 3-1-518(1), MCA (2001).
¶26 It is this provision that Judge Tucker maintains was followed to the letter, and which supports the action he took in this matter. No one-not even Drew-disputes that Drew violated an order of the District Court issued after a hearing on the merits of the subject of the order. As indicated above, the District Court entered a Second Order to Show Cause on January 15,2004, ordering Drew to appear in court on February 5,2004, to show cause why she had not filed the amended petition for post-conviction relief on Enright’s behalf. Drew appeared as directed on February 5, with counsel. At the conclusion of that hearing the court indicated it would not jail Drew or fine her, provided she filed with the court a motion to withdraw with a supporting brief analogous to an Anders brief. The February 13 deadline was chosen by Drew as reasonable and imposed by the Court. Nonetheless, Drew failed to file the documents as represented, and failed to follow up with the court even after the court telephoned her to inquire about her failures. Using the statute’s language, it is clear that Drew’s contempt, which was addressed in the subsequent hearing of March 25, 2004, “arose from the violation of an order of the court issued after a hearing on the merits of the subject of the order.” Section 3-1-518(1), MCA (2001). Thus, the situation described in the amended statute, which allows the judge who issues the order to punish the contempt, was squarely met here.
¶27 The only proviso against allowing a judge who issued an order to punish the contempt arising from violation of the order is where “it is shown that the judge would not be impartial in addressing the contempt.” Section 3-1-518(1), MCA (2001). Drew and MACDL argue that because the District Court stated on the record that Drew had no credibility with the court, this was sufficient to establish that Judge Tucker could not be impartial in addressing the contempt. Judge Tucker disagrees, pointing out that if we accept Drew’s argument, the amended provisions of the statute could virtually never be implemented. We tend to agree with Judge Tucker.
¶28 A straightforward analysis of a contempt proceeding illustrates the point. A person who appears before a court for violating a direct order of the court issued in a previous proceeding is-by definition-already in trouble. A court that is on the verge of finding that person in contempt has likely already rejected the person’s explanations; in other words, it has found those excuses not credible. Were the excuses credible, presumably no finding of contempt would issue. If we conclude, as Drew urges us to do, that a judge who has determined that the charged party lacks credibility is unable to be impartial in addressing the contempt, then virtually no judge who is understandably offended by a direct violation of his or her orders would be allowed to address the contempt, and the provisions of § 3-1-518, MCA, as amended, would be rendered meaningless.
¶29 Drew maintains that the amended statute, which allows the sitting judge to punish a contempt arising out of the failure to follow the court’s orders, is unconstitutional. We must therefore determine whether the right to a neutral magistrate in all non-immediate contempt proceedings is constitutional in dimension, as Drew maintains, or whether the Legislature may appropriately permit a judge whose order issued after a hearing on the merits of the subject of the order is violated, to preside over the ensuing contempt proceedings, unless it is shown that he or she could not be impartial in addressing the contempt.
¶30 As noted above, until we decided Kauffman, the panoply of due process rights to which an alleged contemnor was entitled in Montana did not include the absolute right to appear before a neutral magistrate in every instance of non-immediate contempt proceedings. See Lilienthal, 200 Mont. 236, 650 P.2d 779 and Malee, 275 Mont. 72, 911 P.2d 831. Nor has Drew cited any case for the proposition that the entitlement to a neutral magistrate in all such proceedings is constitutional in dimension, which is her burden in a constitutional challenge. We conclude therefore that, provided § 3-1-518, MCA (2001) accords due process to the charged party, its provisions should be upheld.
¶31 Our decision in Kauffman does not preclude a finding that the revised statute is an appropriate exercise of legislative authority. When we superimposed the requirement of a neutral magistrate over those cases in which it is not necessary for a court to take instant action, in Kauffman we did so without the benefit of the specific provisions of § 3-1-518(1), MCA (2001) that are at issue here. The revised statute now specifically recognizes that a right to a neutral magistrate exists in most cases. The sole exception is that case where, as here, the charged person has violated a court order issued after a hearing on the merits of the subject of the order. Because the exception to the rule at issue here did not exist and was therefore not in the contemplation of the Court when Kauffman was written, we will not apply our holding in Kauffman to the present situation.
¶32 Turning to the due process concerns, we note that the revised statute assures that the charged party shall be entitled to a hearing and to examine witnesses. The statute also takes into account the issue of partiality, by allowing the charged person to demonstrate that the sitting judge could not be impartial in meting out a contempt punishment. If such a showing is made, then the neutral magistrate requirement will be imposed. Thus, the revised statute contains its own due process safeguards.
¶33 It is important to bear in mind that the type of contempt punishable by the sitting judge under the statute is narrow in scope. It is only where an order of the court issued after a hearing on the merits is violated that the judge may act. Direct violation of such an order is, by definition, self-evident; in fact, Drew’s violation of the order is not in dispute. There is thus less subjectivity involved in the finding of contempt under such circumstances than would exist in a more fluid open court setting. Moreover, as the legislative history of the amendment to the statute makes clear, the goal of the amendment was to ensure that justices of the peace and city court judges, as well as district judges, would retain the power to punish disobedience of their own orders. The Montana Magistrates Association, in supporting the amendment, said that, if its members were precluded from hearing contempt proceedings stemming from their own orders, the necessity of calling in a second judge “would bring the lower court proceedings to a halt.” The legislative history-and the statute as revised-further makes it clear that, in all other types of non-immediate contempt proceedings, Kauffman’s call for a neutral magistrate would be the law.
¶34 Assuming, therefore, that the statute provides sufficient due process protections, we turn to the question of whether Drew has demonstrated that Judge Tucker could not be impartial in addressing her contempt, a finding that, if made, would compel the appointment of a neutral magistrate under the statute. Drew and MACDL argue that his finding that Drew lacked credibility rendered him unable to be impartial. We reject this argument for the reasons set forth above in ¶ 8. Drew did not present any other grounds in support of her request for a neutral magistrate. We therefore conclude that she has failed to demonstrate that Judge Tucker could not be impartial in meting out a contempt punishment.
¶35 In conclusion, we clarify that our decision in Kauffman remains sound. In fact, its mandate has now been incorporated into the statute. We further conclude, however, that due process is not offended by allowing a district judge to preside over a contempt hearing under the exception noted in § 3-1-518, MCA,-that is, where the contempt arose from the violation of an order of the court issued after a hearing on the merits of the subject of the order. In these situations, the district judge who conducted the hearing and issued the order should retain the authority to punish violation of that order by contempt proceedings, as long as the other due process protections set forth in the statute and enunciated by this Court and the United States Supreme Court, are met and honored, and unless it is shown that the judge could not be impartial in addressing the contempt.
CONCLUSION
¶36 For the foregoing reasons, Drew’s Petition for Writ of Certiorari is denied. We therefore lift the stay previously entered in this cause.
CHIEF JUSTICE GRAY, JUSTICES NELSON and WARNER concur.
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Gerald Harland, Don Harland and Kathy L. Harland, d/b/a/ Harland Ranch Partnership (hereinafter, the Harlands) appeal, and Anderson Ranch Company (hereinafter, Anderson Ranch) cross-appeals, from an order entered by the Eighth Judicial District Court, Cascade County, granting summary judgment to Anderson Ranch based upon the doctrine of res judicata. We affirm in part, reverse in part, and remand.
¶2 The parties raise the following issues on appeal:
¶3 1. Did the District Court err in looking beyond the plain language of the 1983 amended judgment?
¶4 2. Did the District Court err in granting summary judgment in favor of Anderson Ranch?
¶5 3. Did the District Court have jurisdiction to consider the effect of the 1983 amended judgment?
¶6 4. Was the Harlands’ easement over the Anderson Ranch property extinguished by way of abandonment and waiver?
¶7 5. Is Anderson Ranch entitled to attorney fees?
PROCEDURAL AND FACTUAL BACKGROUND
¶8 On January 25,1972, Gerald R. Harland commenced litigation in the Eighth Judicial District Court, Cascade County, seeking to establish a right-of-way across property owned by Roy and Lottie Anderson (the Andersons) and the Anderson Ranch. The complaint in that action alleged that an easement existed by way of prescription and sought damages against the Andersons for wrongful interference. In the alternative, Harland asked the court to condemn an easement across the Andersons’ property for his use.
¶9 The District Court awarded summary judgment in favor of the Andersons on Harland’s claims for a prescriptive easement and related damages. Harland appealed from the District Court’s ruling, and we affirmed. See Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613.
¶10 Following remand, the District Court resumed proceedings on Harland’s claim for an easement by condemnation. On January 5, 1983, the court entered findings of fact and conclusions of law, determining that Harland’s use of his land for stock grazing was a public use and that, under the power of eminent domain, he was entitled to a non-exclusive easement over the Andersons’ property.
¶11 On January 7, 1983, the District Court entered judgment awarding the Andersons $1,700 as just compensation for the taking of the easement granted to Harland, as well as attorney fees and costs. However, the order failed to account for the grant of an easement to Harland, and on January 10, 1983, the District Court issued an amended judgment, which expressly set aside the January 7 judgment and granted Harland an unrestricted easement over the Andersons’ property.
¶12 The Andersons thereafter filed a motion to alter or amend the District Court’s findings of fact, conclusions of law and judgment, asserting that the judgment “amounts to the taking of an easement amounting to the total use of the road involved,” and requesting that they be granted $6,500 as just compensation for the taking of the easement. The District Court denied the Andersons’ motion.
¶13 On March 17, 1983, Harland and the Andersons entered a stipulation agreeing that $7,500 should be awarded to the Andersons for attorney fees and costs. The parties further agreed not to appeal from the amended judgment. On March 23, 1983, the District Court entered an order approving the stipulation.
¶14 For nearly twenty years thereafter, the Harlands utilized the right-of-way easement across the Anderson Ranch for the purposes of inspecting their property, building roads, logging, recreation, and other non-agricultural uses, including guided hunting. However, around May 2000, Anderson Ranch initiated efforts to restrict the Harlands’ use of the easement by attempting to block access to the road crossing its property.
¶15 On April 26,2001, the Harlands commenced litigation in District Court seeking declaratory and injunctive relief on the basis that the January 10, 1983 amended judgment granted them a non-restrictive easement across the Anderson Ranch. The Harlands additionally claimed they were entitled to damages for Anderson Ranch’s wrongful interference with the use of the easement and requested attorney fees.
¶16 Anderson Ranch responded by denying the Harlands’ allegations that it had impeded the use of the easement and argued that the right-of-way granted under the January 10, 1983 amended judgment was limited to agricultural and grazing purposes. The Ranch additionally asserted the affirmative defenses of res judicata, judicial estoppel, abandonment, laches, and waiver.
¶17 On January 17, 2002, Anderson Ranch brought a motion for summary judgment seeking dismissal of the lawsuit on the basis of res judicata and its other asserted affirmative defenses. The Harlands cross-moved for summary judgment on the basis that the amended judgment clearly and unambiguously granted them an unrestricted easement across the Anderson Ranch, and argued that the District Court was not permitted to go beyond the four comers of the amended judgment in making its determination.
¶18 Following hearing on the motions, the District Court concluded that the language of the amended judgment, which had vacated the prior judgment for failing to comply with the court’s findings of fact and conclusions of law, implied that the court’s findings and conclusions were “necessary thereto,” and therefore reviewed the court’s 1983 findings of fact and conclusions of law in construing the amended judgment. In so doing, the District Court concluded that the easement was restricted to agricultural and grazing purposes and granted summary judgment to Anderson Ranch on the basis of res judicata.
¶19 On September 13, 2002, the District Court entered judgment formally granting Anderson Ranch’s motion for summary judgment, denying Harlands’ motion for summary judgment and dismissing the Harlands’ claim with prejudice. Harlands appeal from this judgment and Anderson Ranch cross-appeals from the District Court’s denial of summary judgment as to its affirmative defenses of abandonment and waiver.
STANDARD OF REVIEW
¶20 We review a district court’s grant or denial of summary judgment de novo. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331. In this case, summary judgment was granted based upon the court’s interpretation of a written judgment. Interpretation of judgments presents a question of law for the court. See Gans & Klein Inv. Co v. Sanford (1932), 91 Mont. 512, 522, 8 P.2d 808, 811. We review a court’s conclusions of law to determine whether its interpretation is correct. Madrid v. Zenchiku Land and Livestock, 2002 MT 172, ¶ 5, 310 Mont. 491, ¶ 5, 51 P.3d 1137, ¶ 5.
DISCUSSION
¶21 Did the District Court err in looking beyond the plain language of the 1983 amended judgment?
¶22 The Harlands contend the District Court erred in considering the findings of fact and conclusions of law in construing the 1983 amended judgment. They maintain that, where the decree is clear and unambiguous, reference cannot be made beyond the face of the decree. We agree.
¶23 We have long since recognized that a district court may refer to the pleadings, judgment roll, and the entire record in the original case when construing a decree which is lacking in certain elements or obscure and uncertain in meaning. Quigley v. McIntosh (1940), 110 Mont. 495, 510, 103 P.2d 1067, 1074. Quigley concerned a district court’s interpretation of a 1913 decree adjudicating water rights to Three Mile Creek, an adjudicated stream in Powell County. The decree only addressed the acreage of land the senior appropriators could irrigate and the flow rate that could be applied. When senior appropriators began using a greater amount of water from the creek than the decree allowed by diverting water to new acreage, junior appropriators brought suit. After making extensive findings of fact and conclusions of law with respect to the historical distribution of waters and ditches, the district court concluded that the junior users had been injured by the increased water usage and enjoined the senior appropriators’ expanded use. On appeal, the senior users asserted the district court had erred by looking beyond the face of the 1913 decree. We affirmed the district court, stating in pertinent part:
If the decree were complete in all details relating to the actual amounts of water to be used under the various appropriations there would be no occasion, in construing it, to resort to pleadings or evidence. But in construing a decree which is lacking in certain elements or obscure or uncertain in meaning, reference may be made to the pleadings, judgment roll, or entire record of the case.
Quigley, 110 Mont. at 510-11, 103 P.2d at 1074. Thus, Quigley established that a district court may refer to the record in the original case when construing a decree which is obscure or ambiguous. However, where the language of a court’s decree is plain, there is no need, “in construing it, to resort to pleadings or evidence.” Quigley, 110 Mont. at 510, 103 P.2d at 1074.
¶24 This ruling-that the effect of the decree must be declared in light of the literal meaning of the language used when the decree is clear and unambiguous-is consistent with the general rule for construing judgments. In American Jurisprudence 2d, it is stated:
As a general rule, where a court’s decree is clear and unambiguous, neither pleadings, findings nor matters outside the record may be used to change its meaning or construe it. However, a judgment which is ambiguous and uncertain may be read in connection with the entire record and construed accordingly. A judgment will be considered ambiguous if reasonable persons differ as to its effect and meaning.
46 Am.Jur.2d Judgments § 97 (1994).
¶25 In this case, the 1983 amended judgment provided, in relevant part:
The Plaintiff, GERALD R. HARLAND, recover from the Defendant, ANDERSON RANCH CO., a right-of-way easement for the construction and maintenance of a road... which road shall be for the purpose of providing ingress and egress to the lands of the Plaintiff, GERALD R. HARLAND .... The Defendant condemnees shall retain the right to fully use and enjoy such real estate within said right-of-way easement, except as may be inconsistent with, or interfere with, the rights and privileges necessary to the Plaintiff, GERALD R. HARLAND, in the construction and maintenance of said roadway for convenient ingress and egress to the Plaintiffs lands described on Exhibit B.
As evident by its plain language, the amended judgment specified that the easement was for the purpose of providing Harland “convenient ingress and egress” across the Anderson Ranch. It did not limit the use of the easement to a particular purpose. Rather, the amended judgment clearly conferred a non-restrictive right-of-way easement to the Harlands, while retaining the Andersons’ right to continued use of the easement, so long as such use was not contrary to the Harlands’ rights.
¶26 Throughout the proceedings below, Anderson Ranch maintained that the District Court did not intend to grant such a broad easement to the Harlands in its 1983 amended judgment. Despite its contentions, the Ranch failed to establish any ambiguity in the judgment which would require reference to the record. As previously discussed, when the judgment is not ambiguous or uncertain, the written judgment should be accepted at face value and without speculating as to the reasoning behind the particular result. In this case, the District Court went beyond the face of the decree by referencing the 1983 findings of fact and conclusions of law. From these findings, the court determined that the Harlands’ easement was limited to agricultural/grazing purposes, and that the doctrine of res judicata prevented relitigation of a claim for an unrestricted easement. However, because we conclude the 1983 amended judgment clearly and unambiguously granted the Harlands an unrestricted easement across the Anderson Ranch, we hold the District Court erred in looking beyond the face of the decree, and, therefore, improperly denied the Harlands’ motion for summary judgment. Accordingly, we reverse the District Court’s order awarding Anderson Ranch summary judgment and denying summary judgment to the Harlands, and direct entry of judgment in favor of Harlands consistent with this opinion.
¶27 Did the District Court err in granting summary judgment in favor of Anderson Ranch?
¶28 The Harlands argue that genuine issues of material fact existed with regard to whether the parties acknowledged the grant of an unrestricted easement in their March 17,1983 stipulation. Because we conclude the District Court erred by referencing the record in its interpretation of the 1983 amended judgment and, thus, reverse in favor of the Harlands on issue one, we need not reach the merits of this issue.
¶29 Did the District Court have jurisdiction to consider the effect of the 1983 amended judgment?
¶30 Anderson Ranch argues that the District Court was without jurisdiction to entertain the Harlands’ complaint. Although its brief is unclear, the Ranch’s apparent contention is that the relief requested is not contemplated by the Uniform Declaratory Judgment Act (UDJA), § 27-8-101 et seq., MCA (2001). The Harlands respond that Anderson Ranch failed to raise its jurisdictional issue in District Court. Anderson Ranch concedes it did not address this matter below, but maintains that issues concerning subject matter jurisdiction may be raised at any stage in the proceedings. In the absence of “statutory jurisdiction” under the UDJA, the Ranch contends that “the amended complaint should be dismissed by this Court. . . .”
¶31 It is correct that a judgment entered by a court lacking subject matter jurisdiction is subject to attack at any time. Glickman v. Whitefish Credit Union Assn., 1998 MT 8, ¶ 12, 287 Mont. 161, ¶ 12, 951 P.2d 1388, ¶ 12; Rule 12(h)(3), M.R.Civ.P. However, we disagree that the District Court lacked jurisdiction to hear the dispute in this case. “Subject matter jurisdiction is simply the power of the court to hear and adjudicate the claim before it.” In re B.F., 2004 MT 61, ¶ 18, 320 Mont. 261, ¶ 18, 87 P.3d 427, ¶ 18. Both the Montana Constitution, Article VII, Section 4, and § 3-5-302, MCA, provide a district court with original jurisdiction in all civil matters, and in all cases arising at law and in equity. This being such a case, the District Court possessed the requisite subject matter jurisdiction to adjudicate the dispute.
¶32 Furthermore, Harlands’ complaint pled alternate claims for declaratory and injunctive relief. Thus, assuming arguendo that an action for a declaratory judgment is inappropriate under these circumstances, the District Court nonetheless possessed subject matter jurisdiction over the Harlands’ claim for injunctive relief.
¶33 In addition to its jurisdictional attack, Anderson Ranch appears to question whether a declaratory judgment action may be used to request a judicial interpretation of a judgment. While this Court is generally willing to relax technical requirements for briefing as long as the fundamental factual and legal basis for the appeal is discernable, in this case, we are simply unable to decipher the precise issue raised by the Ranch. The Ranch submitted a thirty-eight page brief herein consisting almost exclusively of quotations, with very little discussion or argument between quotes. Under Rule 23(b), M.R.App.P., a respondent’s brief must contain a succinct, clear and accurate summary of the arguments posited by the party, followed by a well reasoned argument containing citations to the authorities, statutes, and pages of the record relied upon. It is not this Court’s obligation to guess a party’s precise position or to develop legal analysis that may support that position. In re Marriage of Snow, 2002 MT 143, ¶ 28, 310 Mont. 260, ¶ 28, 49 P.3d 610, ¶ 28. In light of Anderson Ranch’s failure to present a cogent argument concerning the availability of a declaratory judgment action to interpret a judicial decree, we decline to address the merits of this argument on appeal.
¶34 Was the Harlands’ easement over the Anderson Ranch property extinguished by way of abandonment and waiver?
¶35 Anderson Ranch moved that the District Court enter summary judgment on the basis of its asserted affirmative defenses of res judicata, judicial estoppel, abandonment, laches, and waiver. The District Court awarded summary judgment to Anderson Ranch on the grounds that the easement was limited to agricultural/grazing purposes, and that the Harlands’ claim for an unrestricted easement was barred under principles of res judicata, and thus, did not address the Ranch’s remaining affirmative defenses.
¶36 On cross-appeal, Anderson Ranch asserts the District Court erred in failing to award summary judgment as to its asserted defenses of abandonment and waiver. In response, the Harlands argue that a court’s failure to grant summary judgment is not an appealable order. Alternatively, they maintain that denial of summary judgment on the Ranch’s alternate defenses was appropriate due to the existence of genuine issues of material fact.
¶37 Pursuant to Rule 1(b)(1), M.R.App.P., an appeal may be taken from a final judgment entered in an action in a district court. A final judgment is one which constitutes a final determination of the rights of the parties; any judgment, order or decree leaving matters undetermined is interlocutory in nature and not a final judgment for purposes of appeal. Matter of Litigation Relating to Riot (1997), 283 Mont. 277, 280, 939 P.2d 1013, 1015-16.
¶38 In the present case, Anderson Ranch brought its motion for summary judgment on several alternate theories. Although the District Court awarded summary judgment on the basis of res judicata, judgment on any one of the Ranch’s asserted affirmative defenses would have resulted in a final determination of the parties’ rights. Accordingly, the District Court’s order granting summary judgment to Anderson Ranch, albeit not on the theory of waiver or abandonment, constitutes a final and appealable judgment.
¶39 Having established that Anderson Ranch’s cross-appeal is properly before this Court, we turn to the Ranch’s claims that it was entitled to summary judgment on the basis of abandonment and waiver. Essentially, Anderson Ranch argues that the Harlands impliedly abandoned or waived their right to the easement because they never used it to move cattle across the ranch. The Harlands do not dispute that the easement was not used for grazing purposes, but maintain that the 1983 amended judgment granted them an unrestricted easement.
¶40 We have previously explained the requirements to prove abandonment of an easement.
In order for there to be abandonment there must be an intent to abandon. An intent to abandon has not been found from mere nonuse. Abandonment means a voluntary act involving a concurrence of act and intent. The act is the relinquishment of possession and the intent is a manifestation not to resume beneficial use of it. Neither of these elements alone is sufficient.
Rieman v. Anderson (1997), 282 Mont. 139, 145, 935 P.2d 1122, 1126. Furthermore, “the party claiming abandonment must prove that the ‘acts claimed to constitute the abandonment [are] of a character so decisive and conclusive as to indicate a clear intent to abandon the easement.’” Rieman, 282 Mont. at 145-46, 935 P.2d at 1126. Because we determine the amended judgment did, in fact, confer an unrestricted easement to the Harlands, and there is no dispute that the Harlands used the easement for nonagricultural purposes, there was no abandonment of the easement.
¶41 The Ranch’s contention that the Harlands waived their rights to the easement as a result of nonagricultural use fails for the same reason. “While it is true that a waiver may be implied by a course of action or conduct which induces the belief that the intention and purpose was waiver, ... such implied waiver requires a detrimental reliance by the party who is led by the conduct to believe a waiver has occurred.” Benson v. Diverse Computer Corp., 2004 MT 114, ¶ 30, 321 Mont. 140, ¶ 30, 89 P.3d 981, ¶ 30. Here, Anderson Ranch failed to offer any facts which would support a claim for waiver. Thus, we hold that the denial of summary judgment on the basis of abandonment and waiver was correct as a matter of law.
¶42 Is Anderson Ranch entitled to attorney fees?
¶43 Anderson Ranch maintains that it is entitled to receive attorney fees incurred in the proceedings below and on appeal, tacitly arguing that the Harlands’ claim for declaratory relief was a malicious endeavor to obtain an unrestricted easement. The Harlands deny bringing a frivolous claim, and point out that Anderson Ranch failed to seek attorney fees at trial.
¶44 Montana follows the general American Rule that a party prevailing in a civil action is not entitled to attorney fees absent a specific contractual or statutory provision. Natl. Cas. Co. v. Am. Bankers Ins. Co., 2001 MT 28, ¶ 27, 304 Mont. 163, ¶ 27, 19 P.3d 223, ¶ 27. Although we have recognized equitable exceptions to the general rule when a party is forced to defend a wholly frivolous or malicious action, see Foy v. Anderson (1978), 176 Mont. 507, 511-12, 580 P.2d 114, 116-17, there is no evidence that the Harlands filed this action solely to harass or otherwise abuse the judicial system. Furthermore, with the reversal of the summary judgment entered herein, Anderson Ranch has not prevailed in this matter. Accordingly, we need not reach the issue of whether the Ranch is entitled to receive attorney fees.
¶45 Affirmed in part, reversed in part, and remanded to the District Court for proceedings consistent with this opinion.
JUSTICES COTTER, REGNIER and NELSON concur.
It should be noted that a defense of lack of jurisdiction over the person is waived if omitted from a motion made pursuant to Rule 12, M.R.Civ.P., or if not included in a responsive pleading or an amendment permitted by Rule 15(a), M.R.Civ.P., to be made as a matter of course. See Prentice Lumber Co. v. Spahn (1970), 156 Mont. 68, 72, 474 P.2d 141, 143. In this case, lack of personal jurisdiction was not raised at any stage of the proceedings and, therefore, we do not address it.
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 The Respondents, members of the print and television media, filed a complaint against Appellant Richard A. Crofts in the First Judicial District Court, Lewis and Clark County. The complaint alleged that meetings between Crofts and other employees of Montana’s University System were subject to Montana’s open meeting laws. Crofts and the Respondents filed cross-motions for summary judgment. The District Court granted the Respondents’ summary judgment motion, and awarded the Respondents their attorneys’ fees and costs. Crofts appeals. We affirm in part and reverse in part the judgment of the District Court.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err when it concluded that meetings between senior employees of the University System were subject to Article II, Section 9, of the Montana Constitution and Montana’s open meeting laws?
¶4 2. Did the District Court correctly award the Respondents their attorneys’ fees?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Montana’s University System is a public education system supervised and controlled by the Board of Regents of Higher Education (the Board of Regents). Art. X, Sec. 9, Mont. Const.; § 20-25-301, MCA (2001); Kottel v. State, 2002 MT 278, ¶ 5, 312 Mont. 387, ¶ 5, 60 P.3d 403, ¶ 5. One of the responsibilities of the Board of Regents is to hire the Commissioner of Higher Education, who serves as the chief executive officer of the University System. The Board of Regents also prescribes the Commissioner’s official duties. Art. X, Sec. 9(c), Mont. Const. One of the Commissioner’s official duties is to act as the person through whom all matters are presented to the Board of Regents, including reports, recommendations and suggestions from the different units of the University System.
¶6 At all times relevant to the instant case, Crofts was Montana’s Commissioner of Higher Education. During the period between June 30,1999, and December 7, 2001, Crofts held fourteen meetings with a group of upper-level employees of the University System, such as University presidents and chancellors. For its first twelve meetings, this group referred to itself in its agendas as the Policy Committee. Then, the Committee’s name was changed to the Senior Management Group. The meetings were called by Crofts to discuss issues directly related to the operation of the University System. Crofts also used the meetings to seek input from Committee members on proposed actions within the realm of his authority. The various members of the Policy Committee attended the meetings in their official capacity as upper-level University employees and were compensated for their attendance with public funds.
¶7 The fifteenth meeting between Crofts and the Policy Committee was scheduled for February 1, 2002. However, before such meeting could commence, a reporter for the Associated Press entered the meeting room and requested to observe, and report on, the meeting. Crofts declined this request. The reporter refused to leave. Crofts then canceled the meeting.
¶8 On February 8, 2002, the Respondents filed a complaint against Crofts, in his official capacity as Montana’s Commissioner of Higher Education. The complaint sought a declaration that the meetings between Crofts and the Policy Committee were subject to Montana’s open meeting laws. The complaint also sought an order enjoining Crofts from excluding the public from such meetings.
¶9 Crofts moved for summary judgment on the Respondents’ complaint on August 9,2002. The Respondents filed a cross-motion for summary judgment that same day. The District Court conducted a hearing on the motions on November 13, 2002. On January 3, 2003, the District Court issued its order, granting the Respondents’ summary judgment motion, and denying Crofts’ summary judgment motion.
¶10 On January 9, 2003, the Respondents filed a motion requesting that they be awarded attorneys’ fees. The District Court conducted a hearing on the motion for attorneys’ fees on February 25,2003. Crofts filed a notice of appeal on March 11, 2003. On April 3, 2003, the District Court granted the Respondents their attorneys’ fees and costs. Crofts then filed an amended notice of appeal on April 7, 2003.
STANDARD OF REVIEW
¶11 Our review of a district court’s grant or denial of a motion for summary judgment is de novo. Hickey v. Baker School Dist. No. 12, 2002 MT 322, ¶ 12, 313 Mont. 162, ¶ 12, 60 P.3d 966, ¶ 12. Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by the district court. Hickey, ¶ 12. Pursuant to Rule 56, M.R.Civ.P.:
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Hickey, ¶ 12.
¶12 On appeal, Crofts contests neither the fact that the Respondents incurred attorneys’ fees nor that the amount fixed by the District Court was reasonable. This Court generally reviews a district court’s award of attorneys’ fees for an abuse of discretion. In re Marriage of Steinbeisser, 2002 MT 309, ¶ 18, 313 Mont. 74, ¶ 18, 60 P.3d 441, ¶ 18. However, in this case, Crofts’ challenge of the District Court’s award of attorneys’ fees is purely legal. That is, Crofts alleges that because the District Court failed to make a ruling on the Respondents’ motion for attorneys’ fees within 60 days, the motion was deemed to be denied. Thus, because there are no factual issues concerning the award of attorneys’ fees, the question of whether the award of attorneys fees’ was proper is one of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Brumit v. Lewis, 2002 MT 346, ¶ 12, 313 Mont. 332, ¶ 12, 61 P.3d 138, ¶ 12.
DISCUSSION ISSUE 1
¶13 Did the District Court err when it concluded that meetings between senior employees of the University System were subject to Article II, Section 9, of the Montana Constitution and Montana’s open meeting laws?
¶14 Crofts maintains that the District Court erred when it concluded that the Policy Committee’s meetings were subject to Montana’s open meeting laws. The Respondents counter that the District Court’s decision was proper, as Article II, Section 9, of the Montana Constitution and the open meeting laws apply to the type of meetings at issue in this case.
¶15 Article II, Section 9, of the Montana Constitution provides:
No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.
The above provision, commonly referred to as the “Right to Know” provision of the Montana Constitution, has been implemented primarily through Montana’s open meeting laws, located at §§ 2-3-201 through -221, MCA (2001). Common Cause v. Statutory Committee (1994), 263 Mont. 324, 329, 868 P.2d 604, 607. The legislature created the open meeting laws with the intent that the deliberations of the public agencies of this State be conducted openly. Section 2-3-201, MCA (2001). To that end, the provisions of the open meeting laws are to be liberally construed. Section 2-3-201, MCA (2001).
¶16 Section 2-3-203(1), MCA (2001), which addresses the types of meetings subject to the open meeting laws, provides:
All meetings of public or governmental bodies, boards, bureaus, commissions, agencies of the state, or any political subdivision of the state or organizations or agencies supported in whole or in part by public funds or expending public funds must be open to the public[.]
¶17 We have previously determined that, in the context of § 2-3-203(1), MCA (2001), the phrase “public or governmental bodies” means a group of individuals organized for a governmental or public purpose. Common Cause, 263 Mont. at 330, 868 P.2d at 608; Bryan v. District, 2002 MT 264, ¶ 25, 312 Mont. 257, ¶ 25, 60 P.3d 381, ¶ 25. Therefore, pursuant to § 2-3-203(1), MCA (2001), any group of individuals organized for a governmental or public purpose must allow their meetings to be open to the public.
¶18 In past cases, this Court has concluded that various types of committees created by government entities to perform some type of function were public or governmental bodies required to open their meetings to the public. See Common Cause, 263 Mont. at 330, 868 P.2d at 608 (in which we held that a committee created by statute to assist in the governor’s selection of a Commissioner was a public or governmental body subject to the open meeting laws); Bryan, ¶ 26 (in which we held that a committee created by a school district to research a proposition and submit a recommendation to the school board was a public or governmental body subject to the “Right to Know” provision of the Montana Constitution); and Great Falls Tribune Co., Inc. v. Day, 1998 MT 133, ¶ 18, 289 Mont. 155, ¶ 18, 959 P.2d 508, ¶ 18 (in which we held that a committee created by the Department of Corrections to screen proposals for the construction of a private prison was a public body subject to the “Right to Know” provision of the Montana Constitution).
¶19 In this case, while the Policy Committee was not formally created by a government entity to accomplish a specific function, we agree with the District Court that the committee in question, whether it was called the Policy Committee or the Senior Management Group, was organized to serve a public purpose. The Policy Committee met fourteen times over two and a half years to discuss matters directly related to the governance of the University System. The Committee deliberated on issues relating to, inter alia: (1) policy changes; (2) tuition and fee changes; (3) budgeting issues; (4) contractual issues; (5) employee salaries; and (6) legislative initiatives. The Policy Committee also advised Crofts on matters related to his duties as the Commissioner of Higher Education. How the University System conducts its business, both academically and administratively, and the job-related actions of the Commissioner of Higher Education, are public matters. Thus, the Policy Committee’s meetings brought together public officials for an undeniably public purpose.
¶20 Crofts admits that the meetings in question are occasions where public officials gather for a public purpose. However, he argues that because the Policy Committee has no definite membership, no specific charter or goal to accomplish, is not created by a specific order of either the Board of Regents or Crofts, and neither votes on propositions nor takes any direct action, it is not a public body as contemplated by Article II, Section 9, of the Montana Constitution and the open meeting laws.
¶21 The determination of whether advisory committees are public bodies subject to the open meeting laws has been recognized as presenting special problems for courts. Bradbury v. Shaw (N. H. 1976), 360 A.2d 123, 125 (superceded by statute). Moreover, the legislation enacted by the different states on this issue is so varied that decisions from other jurisdictions are of little help in resolving the instant question. Tribune Pub. Co. v. Curators of University of Missouri (Mo. 1983), 661 S.W.2d 575, 583. Many factors have been considered in deciding if a particular committee’s meetings were required to be open to the public. Additionally, each situation must be examined in the context of the applicable constitutional and statutory provisions. Ann Taylor Schwing, Open Meeting Laws 2d § 4.42, at 89, § 4.44, at 94 (2000).
¶22 Consideration of Montana’s particular constitutional and statutory schemes leads us to the conclusion that Crofts’ interpretation of what constitutes a public body is too narrow. We conclude that under Montana’s constitution and statutes, which must be liberally interpreted in favor of openness, factors to consider when determining if a particular committee’s meetings are required to be open to the public include: (1) whether the committee’s members are public employees acting in their official capacity; (2) whether the meetings are paid for with public funds; (3) the frequency of the meetings; (4) whether the committee deliberates rather than simply gathers facts and reports; (5) whether the deliberations concern matters of policy rather than merely ministerial or administrative functions; (6) whether the committee’s members have executive authority and experience; and (7) the result of the meetings. This list of factors is not exhaustive, and each factor will not necessarily be present in every instance of a meeting that must be open to the public. A proper consideration of these factors does not mandate that every internal department meeting meet the requirements of the open meeting laws. Meetings where staff report the result of fact gathering efforts would not necessarily be public. Deliberation upon those facts that have been gathered and reported, and the process of reaching decisions would be open to public scrutiny. The guiding principles are those contained in the constitution; that is “no person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions,” and “all meetings of public or governmental bodies ... supported in whole or in part by public funds ... must be open to the public.” Art. II, Sec. 9, Mont. Const.; § 2-3-203(1), MCA (2001).
¶23 The Policy Committee is not merely a fact finding body, nor is it an ad hoc group which came together to consider a specific matter or to gather facts concerning a particular issue. It is a committee that was created and continued by Crofts, and it is not unlike the committee that the Director of the Department of Corrections appointed to advise him in Day, which was found to be a public body. Day, ¶¶ 5,18. As was the case in Day, the Policy Committee was not appointed pursuant to a statute or regulation, but by the head of a department of the State of Montana to tender advice and make recommendations. See Day, ¶ 5.
¶24 The Policy Committee came together at times that were noticed, and agendas were prepared. Moreover, while the record does not contain minutes of the Policy Committee’s meetings, the agendas make it clear that the matters deliberated were somehow memorialized, as such matters were remembered, and re-discussed at successive meetings. The Policy Committee’s meetings required substantial time, inconvenience and travel by the attendees, all of whom were expected to attend. Further, the various costs of conducting the meetings were paid with public funds.
¶25 A review of the record reveals that the District Court was correct that the meetings of the Policy Committee were more than simply staff meetings. The meetings in question were held for much more than mere fact gathering and reporting. Crofts used these meetings to seek input, opinions, and guidance from the Committee regarding the policy decisions he was required to make as Montana’s Commissioner of Higher Education.
¶26 As we noted above, the Policy Committee was made up of upper-level employees of Montana’s University System. These upper-level employees did not convene for the purpose of delivering the results of factual investigations to Crofts. Rather, the agendas indicate that the Policy Committee deliberated, discussed, and debated a wide variety of issues. The Committee then applied their considerable knowledge to the issues, and advised Crofts on how he should proceed. The District Court found that these meetings: “included tuition and fees, student financial planning, course fees, distance education fees, athletic funding, salaries, Indian education planning, diversity, writing proficiency, credit cap, students called to active duty, and reciprocal campus services.” It then went on to conclude: “All of these matters are important to the public and in particular to prospective students and employees of the University System.”
¶27 In addition, the record reveals that the Committee deliberated on legislative strategy; the extent to which the Board of Regents should be involved in campus planning; guidelines for determining what percentage of the cost of a college education should be covered by tuition; budget planning, including consideration of salary increases; tuition and fees; development of information technology policies; the fiscal and political implications of a retired school district administrator teaching at a unit of the University while drawing retirement pay; whether to use interest income arising out of nonresident tuition for scholarships for non-resident students; dental hygiene pre-admission course requirements and how to attract students to the program; the implementation of writing proficiency standards; the policy concerning continuous enrollment of transfer students; and policies concerning the transfer of class credits. The facts had been gathered when the members arrived at the meeting and once there they deliberated positions and solutions. The function performed by the committee, as revealed by the record, was to make decisions on how to proceed.
¶28 Clearly, the Policy Committee met to deliberate on matters of substance. Accordingly, we hold that the Policy Committee is a public body within the meaning of Article II, Section 9, of the Montana Constitution and Montana’s open meeting laws.
¶29 Crofts argues that even if the Policy Committee is deemed to be a public body, it does not hold “meetings,” as contemplated in the open meeting laws, because the Committee’s membership is not fixed, no number of members were required to attend to constitute a quorum, and neither direct action nor votes were taken at its meetings.
¶30 Section 2-3-202, MCA (2001), defines the term “meeting” as:
[T]he convening of a quorum of the constituent membership of a public agency or association described in 2-3-203, whether corporal or by means of electronic equipment, to hear, discuss, or act upon a matter over which the agency has supervision, control, jurisdiction, or advisory power.
Nothing in the plain language of § 2-3-202, MCA (2001), requires that a meeting produce some particular result or action, or that a vote on something be taken. All that is required is that a quorum of the membership convene to conduct its public business.
¶31 In this case, the parties stipulated that each person who attended a meeting of the Policy Committee was invited because he or she was an employee of the University System that held a responsible position. It was also agreed that there were no established rules of procedure and no quorum requirements. Thus, a quorum of the Policy Committee consisted of the members who were in attendance at any particular meeting. The common law rule is that a quorum of any body of an indefinite number consists of those who assemble at any meeting thereof. Application of Havender (N.Y.1943), 181 Misc. 989, 992. There being no statute, rule, or precedent to the contrary, this rule of common law applies in this instance to our interpretation of § 2-3-202, MCA (2001). Section 1-1-108, MCA (2001). Moreover, our constitution mandates that the deliberations of public bodies be open, which is more than a simple requirement that only the final voting be done in public. Devices such as not fixing a specific membership of a body, not adopting formal rules, not keeping minutes in violation of § 2-3-212, MCA, and not requiring formal votes, must not be allowed to defeat the constitutional and statutory provisions which require that the public’s business be openly conducted. Therefore, we hold that the meetings of the Policy Committee were meetings within the meaning of § 2-3-202, MCA (2001).
¶32 Article II, Section 9, of the Montana Constitution provides that no person shall be deprived of the right to observe the deliberations of public bodies. Government operates most effectively, most reliably, and is most accountable when it is subject to public scrutiny. Day, ¶ 34. The Policy Committee is a public body which deliberates on substantive issues that are the public’s business. Accordingly, we hold that the meetings of the Policy Committee are subject to the requirements of Montana’s open meeting laws and Article II, Section 9, of the Montana Constitution.
ISSUE 2
¶33 Did the District Court correctly award the Respondents their attorneys’ fees?
¶34 The District Court granted the Respondents’ motion for summary judgment on January 3, 2003. On January 8, 2003, the Respondents filed a notice of entry of judgment, and on January 9, 2003, they filed a motion requesting that the District Court award them attorneys’ fees. Crofts objected to the Respondents’ motion for attorneys’ fees. The District Court conducted a hearing on this matter on February 25, 2003. The District Court then issued an order granting the Respondents their attorneys’ fees and costs on April 3, 2003.
¶35 On appeal, Crofts contends that because the District Court failed to make a ruling on the Respondents’ motion for attorneys’ fees within 60 days, the motion was deemed denied. Therefore, Crofts alleges the District Court did not have jurisdiction to award the Respondents their attorneys’ fees on April 3, 2003. We agree.
¶36 The District Court’s order granting the Respondents’ motion for summary judgment was a final determination of the rights of the parties to this action, and is the subject of the instant appeal. See Rule 54(a), M.R.Civ.P. The Respondents treated it as such when they filed their notice of entry of judgment on January 8, 2003. A motion for attorneys’ fees filed after entry of a judgment is treated as a motion to alter or amend a judgment. In re Marriage of McDonald (1979), 183 Mont. 312, 314, 599 P.2d 356, 358. A motion to alter or amend a judgment must be ruled on within 60 days or it is deemed denied. Rule 59(g), M.R.Civ.P.
¶37 In this case, the Respondents filed their motion for attorneys’ fees on January 9, 2003. Pursuant to Rule 59(g), M.R.Civ.P., the District Court then had until March 10, 2003, to render a decision regarding such motion. The District Court failed to do so. Rule 59, M.R.Civ.P., contains a mandatory jurisdictional time limitation, to which this Court strictly adheres. Johnson v. Eagles Lodge Aerie (1997), 284 Mont. 474, 480, 945 P.2d 62, 65. Thus, the motion was deemed denied on March 11, 2003, and the District Court had no jurisdiction to enter its April 3,2003, order awarding the Respondents their attorneys’ fees. Accordingly, the District Court’s order of April 3, 2003, must be reversed.
¶38 For the foregoing reasons, the judgment of the District Court requiring the meetings of the Policy Committee to be open to the public is affirmed, and its award of attorneys’ fees to the Respondents is reversed.
JUSTICES NELSON, COTTER, REGNIER and RICE concur.
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Ivan Lynn Bowman (Bowman) appeals from a Tenth Judicial District, Fergus County judgment convicting him of hunting during a closed season and possession of an unlawfully killed game animal. We affirm.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err in denying the defendant’s motion to suppress evidence seized without a search warrant?
¶4 2. Did the District Court err in denying the defendant’s motion to suppress evidence seized pursuant to the search warrants issued on December 6, 1999 and April 6, 2000?
¶5 3. Did the District Court abuse its discretion in not holding a hearing, under the standards set forth in Daubert v. Merrell Dow Pharms., Inc. (1993), 509 U.S. 579, 113 S.Ct. 2786, 125 L.E.2d 469, before the State’s expert testified and was it error to limit cross-examination of the same expert witness?
¶6 4. Did the District Court properly deny three of the defendant’s proposed jury instructions?
¶7 5. Whether there was sufficient evidence to support the jury’s guilty verdict.
FACTUAL AND PROCEDURAL BACKGROUND
¶8 In September of 1999, Bowman contacted Larry Jensen (Jensen), owner of Judith Mountain Taxidermy (JMT), about bringing in an elk cape from a bull elk Bowman had recently brought down during bow season. Jensen agreed to mount the elk for Bowman. Bowman then took the whole elk to Hilger Meats to have the cape removed and the meat processed. Bowman left the elk with Larry Bielen (Bielen), owner of Hilger Meats. Bielen caped out the elk and noticed holes in the cape. He thought the holes were caused during a fight with another elk. After Bielen caped out the elk, he went on vacation and two of his employees, Tim Moline (Moline) and Les Smith (Smith), processed the elk.
¶9 While Smith was cutting the neck portion of the elk, he found a mushroomed bullet impaled against the elk’s vertebrae and showed it to Moline. Moline and Smith decided to save the vertebrae and put it in a cooler with a note to Bielen. When Bielen returned from vacation, he threw the vertebrae away. He testified that he did this because he did not want to get Bowman into trouble because of the amount of business Bowman brought Bielen. Eventually, Bielen’s conscience got the better of him and he was afraid that one of his employee’s would turn him in so, in October, he made an anonymous call to Bob Barber (Barber), a warden for the Montana Department of Fish, Wildlife, and Parks. From the testimony given at the suppression hearing in August of 2000, it appears that Barber discerned that it was Bielen who was the anonymous caller. Bielen told Barber that Bowman had brought in an elk that was supposedly shot during bow season but a bullet was found impaled against the elk’s vertebrae; that the cape was being taken to JMT, and that Bielen wanted to remain anonymous. Based on the tip, Barber called JMT but was informed that no capes had arrived. ¶10 On November 19, Bowman took the cape to JMT. Jensen testified that when Bowman dropped off the cape Bowman said that he hoped it was the right cape. Jensen also testified that after he started working on the cape, he noticed the holes and at first thought that they were antler pokes from a fight with another bull elk but then he noticed lead fragments around the bullet holes. After this discovery, Jensen phoned Bowman to make sure that Bowman had brought in the correct cape and Bowman assured Jensen that he had and told Jensen that he had heard that ranchers in the area had been shooting at wildlife in their hayfields to remove them. After this, it is not entirely clear what happened.
¶11 At the suppression hearing, Jensen testified that he did not call Barber about the cape, but that he did call and leave a message for Barber regarding an unrelated matter. Barber testified that he did receive a message from Jensen; however, the message did reference an elk cape that Barber might be interested in looking at so Barber had called JMT to ascertain whether Jensen was in at that time. Jensen’s testimony, on direct, seems to indicate that it was during that phone conversation that Barber asked Jensen if there were any “elk capes that had come in.”
¶12 On cross-examination, Jensen testified that once he told Barber that a cape had come in and that it was in Jensen’s refrigerator, Barber had asked to see it. Under further questioning though, Jensen testified that he was not sure Barber had called him back and that Barber might have just come down to the shop. However, Jensen was certain that when Barber first came into the shop, the elk was in the refrigerator.
¶13 Barber disagreed with Jensen’s testimony. Barber testified that he had not asked Jensen to take the cape out of the refrigerator but that when he arrived at JMT, the cape was already out on Jensen’s worktable in the main area of the shop. While at JMT, Barber photographed the cape, drew a picture of it, and examined it. He also found a lead fragment near one of the holes, which he collected as evidence.
¶14 In December, Barber submitted an application for a search warrant to Fergus County Justice Court based on his conversation with Bielen and on what he learned from Jensen, “that the cape showed signs of being pierced with a bullet.” The Justice Court granted the application enabling Barber to confiscate the horns and cape of the bull elk from JMT and the elk meat and Bowman’s bowhunter tag from Bowman’s residence. While Barber was at Bowman’s residence, Bowman told Barber how Bowman had shot the elk. Bowman said that he had spotted the elk one morning in the southwestern area of his land and had stalked and shot it with a bow in its front shoulders.
¶15 After the appropriate items were confiscated, the cape was transmitted to the U.S. Fish and Wildlife Service at the Ashland Wildlife Forensics Lab in Ashland, Oregon (hereinafter referred to as “the Lab”). Richard K. Stroud (Stroud), a veterinary medical examiner, at the Lab, reviewed the items. Stroud testified that he examined the cape, took x-rays and photographs of it, measured and examined three holes in the cape, and enlarged the holes to do further studies on it. He concluded, due to the characteristics of the holes and because lead was found near the holes, that bullets had caused the wounds and that, of the three holes, two were entrance wounds and one was an exit wound. In addition, he also observed no evidence of healing, infection, or inflammatory response-inflammatory response is the body’s reaction to trauma, which stops when a body dies-and that because none of these symptoms were present, the bullet wounds were made in close proximity to the time of the elk’s death.
¶16 In April, another search warrant was issued for Bowman’s residence to retrieve Bowman’s bow and arrows; photographs of a dead elk with arrows shown in the carcass, and photographs of places or locations which coincided with Bowman’s version of how the elk was killed; and various rifles for the sole purpose of examining such rifles. That same day, a criminal complaint was brought against Bowman in the Fergus County Justice Court. The complaint charged Bowman with one count of hunting during a closed season, in violation of § 87-3-104, MCA, and another count of possession of an unlawfully killed game animal, in violation of § 87-3-112, MCA.
¶17 Bowman was found guilty of both counts and thereafter, he appealed to the Tenth Judicial District in Fergus County. The District Court ordered a jury trial. Before trial, Bowman filed various motions: a motion to suppress the evidence Barber obtained at JMT without a warrant; a motion to suppress the evidence obtained from the subsequently issued search warrants; a motion to exclude Stroud as an expert witness or in the alternative for a Daubert hearing; and a motion to dismiss or in the alternative, motion to exclude Bielen as a witness. A hearing was held in September of 2001, on Bowman’s motions and the District Court denied the motions.
¶18 A jury trial was held in October and the jury was unable to reach a decision. A mistrial was declared and a new trial date was set. Bowman again filed the same aforementioned motions on Monday, April 8,2002, and the District Court denied the motions, finding them untimely because Bowman had not complied with the scheduling order, which required all motions to be filed by April 5, 2002. A jury trial was subsequently held and Bowman was found guilty on both counts. Bowman appeals from this verdict.
STANDARD OF REVIEW
¶19 We first note that because the State did not argue that Bowman’s motions were not timely filed in the District Court, we will address the merits of Bowman and the State’s first three arguments based the August 2000 suppression hearing wherein Bowman’s various motions were denied. Keeping that in mind, we will not “overturn a District Court’s findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous.” State v. Hermes (1995), 273 Mont. 446, 449, 904 P.2d 587, 589. Findings of fact are clearly erroneous “if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed.” State v. Lacasella, 2002 MT 326, ¶ 10, 313 Mont. 185, ¶ 10, 60 P.3d 975, ¶ 10.
DISCUSSION ISSUE ONE
¶20 Did the District Court err in denying the defendant’s motion to suppress evidence seized without a search warrant?
¶21 Bowman argues that the evidence, the diagram, measurements, and lead fragments Barber obtained when Barber visited JMT after speaking to Bielen, was unlawfully obtained without a search warrant. Bowman appears to contend that he had an expectation of privacy in the elk cape because Jensen was a private taxidermist not open to the public and Bowman’s elk cape was kept in a refrigerator that was not accessible to the public. Bowman also contends that the District Court’s analysis in denying Bowman’s motion was based on erroneous findings.
¶22 In determining whether or not there was an unlawful search, we first look at whether that person has standing or whether that person has an actual expectation of privacy that society is willing to recognize as objectively reasonable. State v. Isom (1982), 196 Mont. 330, 336, 641 P.2d 417, 420; City of Whitefish v. Large, 2003 MT 322, ¶ 14, 318 Mont. 310, ¶ 14, 80 P.3d 427, ¶ 14. We have held that factors such as “the place of the investigation, the control exercised by the person over the property being investigated, and the extent to which the person took measures to shield the property from public view ...” can be considered in determining whether there is a legitimate expectation of privacy. State v. Hubbel (1997), 286 Mont. 200, 209, 951 P.2d 971, 977. In addition, we have also held that the “[pjlacing an object beyond the purview of the public in a place from which the person has the right to exclude others evidences an actual or subjective expectation of privacy.” State v. Elison, 2000 MT 288, ¶ 49, 302 Mont. 228, ¶ 49, 14 P.3d 456, ¶ 49.
¶23 In this instance, Bowman has no standing to contest Barber’s viewing of the cape at the JMT premises. Rather, Bowman’s argument appears to be an attempt to assert Jensen’s right of privacy in the JMT premises and works in progress to cover the cape. It is difficult to imagine how Bowman would have an expectation of privacy in this instance. Bowman relinquished possession of the cape, albeit temporarily, to a third party, Jensen, and took no measures to shield the cape from the public’s view. Elison, ¶ 49. Bowman had done business with Jensen before and knew that when Jensen worked on the animals he used a work table that was visible to anyone who walked into the shop. Also, when Bowman left the cape with Jensen, he never indicated that he wanted the cape shielded from the public, that it was a private matter between only Jensen and Bowman, or that Jensen should not show the cape to anyone. Further, as was brought out in the suppression hearing, it is common knowledge that people who take an animal to a taxidermist do so to have the animal immortalized in permanent form for others to admire. There can hardly be an expectation of privacy in such a display.
¶24 Bowman relinquished any expectation of privacy he had in the cape when he took it to JMT, a business that is open to the public, to have the cape mounted, and, in doing so, did not try to ensure that it would be shielded from public view.
¶25 Bowman’s argument that the District Court abused its discretion in failing to suppress the seized evidence because the District Court’s analysis was based on erroneous findings is equally unpersuasive. Bowman, in his reply brief, argues that the District Court failed to properly analyze the motion to suppress because the District Court based its findings on a lack of expectation of privacy accompanying the conveyance of the elk to Hilger Meats and not JMT. This argument fails though because, as stated above, there is no expectation of privacy where, as here, Bowman placed his property in the possession of a third party for mounting without taking any measures to preserve his claim of privacy, even if the transfer of possession was only temporary.
¶26 Accordingly, we hold that the District Court did not err in denying Bowman’s motion to suppress the evidence Barber obtained from the Taxidermy shop.
ISSUE TWO
¶27 Did the District Court err in denying the defendant’s motion to suppress evidence seized pursuant to the search warrants issued on December 6, 1999 and April 6, 2000?
¶28 Bowman argues that the evidence seized pursuant to the search warrants should have been suppressed because the applications did not state probable cause. Bowman insists that the warrants were based on an anonymous tip and that there was no independent corroboration confirming the informant’s tip.
¶29 We must analyze whether the court that issued the search warrant “had a substantial basis to determine probable cause existed.” State v. St. Marks, 2002 MT 285, ¶ 12, 312 Mont. 468, ¶ 12, 59 P.3d 1113, ¶ 12. In analyzing whether probable cause existed, we do not look at “each individual fact presented in the application for search warrant...” but rather a “totality of the circumstances.” St. Marks, ¶ 22.
December 6, 1999 Search Warrant
¶30 Bowman contends that there was no independent corroboration supporting the anonymous tip. We have held that if the informant is anonymous, then independent corroboration of the informant’s information is required. State v. Reesman, 2000 MT 243, ¶ 28, 301 Mont. 408, ¶ 28, 10 P.3d 83, ¶ 28. Bowman argues that the supporting information Barber cited in the application was based solely on hearsay because Barber did not indicate with whom he spoke at Hilger Meats and did not indicate whether he personally observed any of the evidence he obtained from JMT.
¶31 Bowman’s argument regarding hearsay has no merit. The application need not state with whom Barber spoke because, even as Bowman acknowledged, this was an anonymous tip. As to corroborating the anonymous tip, the application stated that “[t]he investigating deputy [Barber] learned also that the defendant had taken the cape and horns of the animal to Judith Mountain taxidermy. The investigating warden learned from the taxidermist tha,t the cape showed signs of being pierced with a bullet” (emphasis added). While the corroborating information could have been better stated, we conclude, based upon the record, that there was sufficient probable cause to issue the search warrant.
¶32 The above emphasized sentence gives the impression that Barber obtained all of his corroborating information from Jensen; however, this is inaccurate. As stated in the facts, it is unclear what exactly Barber and Jensen discussed on the phone or even at JMT and, according to Barber’s testimony, Barber took measurements of the holes, diagramed the same, and located a lead fragment and removed it as evidence. While the corroboration could have been better stated in the application, “a determination of probable cause does not require facts sufficient to make a prima facie showing of criminal activity ...” State v. Marks, 2002 MT 255, ¶15, 312 Mont. 169, ¶ 15, 59 P.3d 369, ¶ 15. As earlier noted, to ascertain probable cause, we look at the “totality of the circumstances.” St. Marks, ¶ 22, Marks, ¶ 15. The corroboration did disclose inculpatory information, not innocent information, which corroborated the criminal conduct disclosed by the anonymous tipster.
¶33 In Reesman, we relied on State v. Rinehart (1993), 262 Mont. 204, 864 P.2d 1219, where we held that:
An affidavit supporting a search warrant is to be interpreted by the magistrate and examined by the reviewing court in a common sense, realistic fashion and without a grudging or negative attitude that will tend to discourage police officers from seeking warrants. Reviewing courts should avoid hyper-technical interpretations of warrant applications and, in doubtful or marginal cases, resolve the issue with the preference for warrants in mind.
Rinehart, 262 Mont. at 210-11, 864 P.2d at 1223 (citing State v. O’Neil (1984), 208 Mont. 386, 393, 679 P.2d 760, 764). We conclude that Barber obtained independent corroboration after receiving the anonymous tip and, we hold, therefore, that the District Court did not err in denying the motion to suppress evidence obtained from the December search warrant.
April 6, 2000 Search Warrant
¶34 The April 6, 2000 application contained the same information as the December application with several additions. The April warrant added that the elk cape discussed in the December application had been seized pursuant to the December warrant and had been sent to the Lab and that the Lab had concluded that the animal had been shot with a high-powered rifle. The application also indicated that Bowman, at Bowman’s residence when the December warrant was served, gave Barber his version of how the animal was killed; showed Barber an arrow that was purportedly used to kill the elk; and showed Barber various photographs of the dead elk with an arrow protruding from it. Further, the April application stated that Barber obtained reliable information from an experienced elk bow hunter that the photographs probably did not depict realistic arrow placement.
¶35 As with the December application, there was a substantial basis to determine that probable cause existed to issue the April warrant and the District Court did not err in denying the motion to seize evidence obtained pursuant to the April warrant.
ISSUE THREE
¶36 Did the District Court abuse its discretion in not holding a hearing, under the standards set forth in Daubert, before the State’s expert testified and was it error to limit cross-examination of the same expert witness?
The Daubert Hearing
¶37 Bowman argues that because Stroud’s testimony was based on novel science the District Court abused its discretion when it did not hold a Daubert hearing. The State argues that Bowman did not identify any science applied by Stroud that would be considered novel science and that Bowman has instead only made claims that Stroud’s conclusions are unsupported, incredible, and unreliable.
¶38 The DaubeH standard is applied in Montana only where there is a question involving novel scientific evidence. State v. Hocevar, 2000 MT 157, ¶ 56, 300 Mont. 167, ¶ 56, 7 P.3d 329, ¶ 56. Bowman contends that Stroud’s testimony is based on a new field of science because, as Stroud testified in the first trial, the Lab “is the only [forensic laboratory] that is a full-time certified laboratory that deals only with wildlife.” This argument is unpersuasive.
¶39 While Stroud works at the only forensic lab that studies wildlife on full-time basis, this fact does not put Stroud’s testimony in the realm of novel science. The study of animal anatomy is not a new concept. It coincides with the study of human anatomy and can be dated back to, at the very least, Hippocrates (377-460 B.C.). In addition, schools of veterinary science date back to the mid 18th Century in Europe and about the time of the Civil War in America.
¶40 Aside from the lengthy history surrounding the study of animal anatomy and the development of veterinary schools, Stroud’s education, his studies, and his work experience, in the area to which he testified, is extensive. His education includes a Doctor of Veterinary Medicine and a Masters of Science in veterinary science pathology. In addition, Stroud has participated in one study, involving seals, where numerous bullet wounds were observed and another study involving deer, “[t]hat was specifically to determine wound ballistic characterization using various firearms.” Further, at the Lab he “primarily deal[s] with either cause of death or pathologic examination of evidence from wildlife ... [including] birds, eagles, hawks, owls, waterfowl, wolves, deer, elk, marine mammals, even fish.” Lastly, he has completed about 10,000 necropsies, or autopsies, on wildlife ranging from whales to elk, deer, wolves, and many different birds.
¶41 In keeping with his education, studies, and experience, Stroud testified on direct examination that, in his opinion, the holes in the cape were bullet holes; that there was no evidence of healing or infection; that the bullet wounds were in close proximity to the time of death; and that the elk was probably shot with a high powered rifle and high velocity bullet. During cross-examination, Stroud admitted that he could not be certain what caused the elk’s death; that if a bullet was lodged in an elk’s neck and did not cause damage to the spinal cord that it might be possible for the elk to drink, rut, and bugle; and that he could not tell, from the pictures of the dead elk with the arrow protruding from it, what organs the arrow may have hit.
¶42 Stroud has been extensively schooled in a science with a lengthy history and his testimony reflected knowledgeable conclusions as to how the elk was killed. Apart from demonstrating his expertise on direct examination, Bowman’s counsel was able to extensively cross-examine Stroud in relation to his education and experience and establish that Stroud could not say for certain how the elk was killed but that Stroud could only offer his opinion in relation to his education and experience. From Stroud’s association with a forensic lab that is the only one in the world that works on a full-time basis with wildlife, it does not follow that his testimony was “novel science.”
¶43 Accordingly, we conclude that the District Court did not err when it did not hold a Daubert hearing.
Cross-examination
¶44 Bowman contends that he was not able to explore all aspects of Stroud’s testimony because he was not able to cross-examine Stroud regarding the full contents of a report Stroud had prepared. The State argues that the report was not admitted into evidence but that the District Court allowed Bowman to cross-examine Stroud about information Bowman was interested in without inappropriately referring to an item not in evidence. The State further argues that Bowman’s argument is disingenuous because when the State tried to admit the same report into evidence on redirect, Bowman objected claiming that Stroud’s testimony was the best evidence.
¶45 We agree with the State and find Bowman’s argument to be disingenuous. During Stroud’s cross-examination, Bowman apparently thought that Stroud’s report was the best evidence when Bowman questioned Stroud about the report. Later, however, during redirect, when the State attempted to admit the report into evidence, Bowman objected stating that Stroud’s testimony was the best evidence. Bowman cannot have it both ways. “It is a well-established maxim of law that ‘[acquiescence in error takes away the right of objecting to it.’ ” Babcock v. Berg, Lilly, Andriolo, 2003 MT 111, ¶ 38, 315 Mont. 364, ¶ 38, 69 P.3d 1145, ¶ 38 (Cotter, J. dissenting) (quoting § 1-3-207, MCA).
¶46 In addition to Bowman’s argument being disingenuous, the record reveals that Bowman was able to extensively question Stroud about Stroud’s assumptions and conclusion. This questioning, as mentioned above, demonstrated that Stroud could not be certain what caused the elk’s death; that if a bullet was lodged in an elk’s neck and the bullet did not cause damage to the spinal cord, that it might be possible for the elk to drink, rut, and bugle; and that Stroud could not tell, from the pictures of the dead elk with the arrow protruding from it, what organs the arrow may have hit.
¶47 We have held before that discretionary trial court rulings, such as the scope of cross-examination, are reviewed to determine whether the District Court abused its discretion. State v. Insua, 2004 MT 14, ¶ 13, 319 Mont. 254, ¶ 13, 84 P.3d 11, ¶ 13. We hold, on the record here, that the District Court did not abuse its discretion when it limited cross-examination of Stroud.
ISSUE FOUR
¶48 Did the District Court properly deny three of the defendant’s proposed jury instructions ?
¶49 “This Court reviews jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the applicable law ... District Court’s have broad discretion in formulating jury instructions and our standard of review is whether the court abused that discretion.” State v. German, 2001 MT 156, ¶ 10, 306 Mont. 92, ¶ 10, 30 P.2d 360, ¶ 10.
Proposed Jury Instruction No. 29
¶50 The District Court instructed the jury that there were two kinds of evidence, direct and circumstantial. As to direct evidence the District Court instructed that “[djirect evidence is when a witness testifies directly of his/her knowledge of the main fact or facts to be proved.” Regarding circumstantial evidence, the District Court instructed that, “[cjircumstantial evidence is proof of facts or circumstances from which the jury may infer other and connective facts which usually and reasonably follow according to the common experience of mankind.” The District Court then elaborated and instructed that “[bjoth direct evidence and circumstantial evidence are acceptable as means of proof. Neither is entitled greater weight than the other.”
¶51 Bowman contends that he is entitled to an instruction on his theory of the case and that his proposed jury instruction No. 29, on circumstantial evidence, should have been given. Bowman’s proposed jury instruction No. 29 read: “To justify a conviction based solely on circumstantial evidence, the facts and circumstances must not only be entirely consistent with the theory of guilt, but must be inconsistent with any other rational theory or conclusion.”
¶52 Bowman insists that the District Court abused its discretion in refusing to give his instruction because the State’s case was based entirely on circumstantial evidence and because his proposed jury instruction No. 29 was a pattern jury instruction based on our decision in State v. Ryan (1987), 229 Mont. 7, 744 P.2d 1242. The State argues that its case was not entirely based on circumstantial evidence, that there was direct evidence that the elk was shot in the neck with a rifle, and that one of the bullets became lodged in the elk’s vertebrae.
¶53 While Bowman correctly cites our decision in Ryan, his argument ignores our more recent decision in State v. Hall, 1999 MT 297, 297 Mont. 111, 991 P.2d 929. In our discussion in Hall, we noted prior case law which held that
If the circumstantial evidence was susceptible to two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, it is the duty of the jury to adopt the interpretation which points to the defendant’s innocence and reject that interpretation which points to his guilt.
Hall, ¶ 22 (quoting State v. Lucero (1984), 214 Mont. 334, 339, 693 P.2d 511, 513-14). However, further discussion in Hall pointed out more recent decisions which state that “ ‘when circumstantial evidence is susceptible to two interpretations, one which supports guilt and the other which supports innocence, the trier of fact determines which is most reasonable.’ ” Hall, ¶ 22 (quoting State v. Arthun (1995), 274 Mont. 82, 91, 906 P.2d 216, 222).
¶54 The instructions the District Court gave adequately instructed the jury in accordance with the law and we see no abuse of discretion by the District Court in refusing to give Bowman’s proposed jury instruction No. 29.
¶55 Additionally, in light of the aforementioned discussion of Hall and the confusion which appears to be present regarding instructions on circumstantial evidence, we caution that Pattern Jury Instruction No. l-1017(a), proposed jury instruction No. 29 here, is not a correct statement of the law after Hall and that practitioners should no longer request that it be given.
Proposed jury instruction No. 20A
¶56 Proposed jury instruction No. 20A read,
[t]he theory of the Defense in this case is that Ivan Lynn Bowman lawfully shot an elk with a bow and arrow during archery season and took legal possession of the elk he harvested. The burden is on the State of Montana to prove beyond a reasonable doubt that Lynn Bowman unlawfully shot the elk with a firearm during archery season. If there is reasonable doubt whether Defendant did shoot the elk with a firearm during archery season you must find Ivan Lynn Bowman not guilty.
¶57 Bowman first argues that proposed jury instruction No. 20A, reflected the charging document and that it was error for the District Court to not instruct the jury based upon the charging document. Bowman cites no authority for the proposition that a jury must be instructed on the language of the charging document. Therefore, we decline to address this argument.
¶58 Bowman next argues that it was also error for the District Court to deny him the right to present an instruction to the jury on what his theory of defense was in the case. Though a defendant is entitled to an instruction on a theory as long as it has support in the evidence, he is not entitled to an instruction concerning every nuance of his argument. State v. Howell, 1998 MT 20, ¶ 17, 287 Mont. 268, ¶ 17, 954 P.2d 1102, ¶ 17; State v. Maloney, 2003 MT 288, ¶ 27, 318 Mont. 66, ¶ 27, 78 P.3d 1214, ¶ 27. Proposed jury instruction No. 20A-“[t]he theory of the Defense in this case is that Ivan Lynn Bowman lawfully shot an elk with a bow and arrow during archery season and took legal possession of the elk he harvested”-is a statement of facts, not law and “ ‘while a defendant is entitled to have instructions on his theory, he is not entitled to put his arguments in those instructions.’ ” State v. Arlington (1994), 265 Mont. 127, 139, 875 P.2d 307, 314 (quoting State v. Short (1985), 217 Mont. 62, 70, 702 P.2d 979, 984).
¶59 Accordingly, we hold that the District Court did not abuse its discretion in denying Bowman’s proposed jury instruction No. 20A.
Proposed jury instruction No. 19
¶60 Bowman contends that the District Court should have given proposed jury instruction No. 19 because Bielen’s testimony was very prejudicial to Bowman and because Bielen’s willful destruction of the vertebrae is the same as if the State had destroyed the evidence and so the jury should have been instructed concerning Bielen’s actions. Proposed jury instruction No. 19 read, “[i]f you find that the State or the State’s witnesses has [sic] destroyed, caused to be destroyed, or allowed to be destroyed, any evidence whose content or quality are an issue, you may infer that the true fact is against the interest of the State.”
¶61 During trial, the State objected to the instruction because it did not constitute a statement of any law of this state and instead constituted an improper comment on the evidence. The District Court agreed, stating that the real issue was the “credibility of that witness” which ... the defense ha[d] raised and which [could] ... be addressed during closing.
¶62 We agree. The record reflects that Bowman was able to extensively cross-examine Bielen regarding Bielen and Bowman’s relationship and was able to establish that Bielen did not like Bowman. Further, as the District Court indicated, Bowman could have again discussed Bielen’s destruction of the vertebrae in Bowman’s closing argument.
¶63 For the reasons stated above, we hold that the District Court did not abuse its discretion in refusing to give proposed jury instruction No. 19.
ISSUE FIVE
¶64 Whether there was sufficient evidence to support the jury’s guilty verdict.
¶65 Bowman simply argues that there was insufficient evidence to support the jury’s guilty verdict because there was no direct evidence that he shot the elk with a firearm. The State counters that there was direct evidence.
¶66 “In determining the sufficiency of the evidence, this Court determines, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Elliott, 2002 MT 26, ¶ 86, 308 Mont. 227, ¶ 86, 43 P.3d 279, ¶ 86.
¶67 The evidence established that the size of the entrance wounds in Bowman’s elk cape were similar to the caliber of more than one of the rifles found and seized in Bowman’s home; that the elk Bowman possessed died in close proximity to the time the bullet wounds were made; that, given position of the entrance and exit wounds on the cape, the bullet(s) likely caused damage to a major artery, vein and/or muscle tissue, caused shock to the spinal cord; and also could have hit the larynx and trachea. To contrast, the arrow, identified by Bowman as the one having killed the animal, had plant material on the blade which was probably from the elk’s stomach.
¶68 Accordingly, we hold that after viewing the evidence in a light most favorable to the prosecution, the jury here could have found the essential elements of the crime beyond a reasonable doubt.
¶69 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, COTTER and RICE concur.
Jensen unexpectedly passed away before the second trial.
This issue, though not mentioned in Bowman’s appellate brief was preserved below. It was brought to the District Court’s attention at the May 8, 2002 pre-trial conference before the second trial.
We note that the April 6 warrant is designated as the application and that the April 6 application is designated as the warrant. Bowman has not raised this misdesignation as an issue. Because the two documents substantively meet the requirements of § 46-5-221 and Article II, Section 11 of Montana’s Constitution and because we do not see any substantial prejudice to Bowman, we will not find error as a result of the misdesignation.
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] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Juro’s United Drug (Juro’s) appeals from the order on judicial review entered by the First Judicial District Court, Lewis and Clark County, upholding a final administrative decision. We affirm.
¶2 The restated issue on appeal is whether the District Court erred in upholding a final administrative decision which concluded that a department’s interpretation of an administrative rule as precluding reimbursement of shipping costs for diapers was reasonable and not plainly inconsistent with the rule’s spirit.
BACKGROUND
¶3 The Montana medicaid program (Medicaid) is a joint federal-state program that provides necessary medical services to qualified individuals. The Department of Public Health and Human Services (Department) administers Medicaid in Montana. Section 53-6-101(1), MCA. Juro’s is a Medicaid-enrolled provider of medical supplies-including diapers-and durable medical equipment in Billings, Montana.
¶4 Juro’s transported diapers to its customers in the Billings area-including its Medicaid customers-at no extra charge via a company truck and driver. It sent diapers via common carrier to its customers outside the Billings area. Juro’s billed its non-Medicaid customers outside the Billings area for the costs of shipping diapers. It submitted claims to the Department for reimbursement of costs for shipping diapers to Medicaid recipients outside the Billings area using Medicaid code W2839, “Shipping Charges for Minor Supplies.” Between October 1, 1995 and March 31, 2000, those claims totaled $10,220.94. The Department reimbursed the claims.
¶5 The Department subsequently audited paid claims data from October 1,1995 through March 31, 2000 (the audit period). In August of 2000, it notified Juro’s that the $10,220.94 was improperly billed and paid under Medicaid code W2839 because Rule 37.86.1806(7), ARM, the language of which was in effect throughout the audit period, provided that “Medicaid will not reimburse delivery fees in addition to the amount reimbursed for diapers.” Stated differently, the Department interpreted the Rule to preclude Medicaid reimbursement of any costs associated with transporting diapers from the provider to Medicaid recipients.
¶6 Juro’s disputed the Department’s interpretation. It contended the Rule only precluded reimbursement for “provider travel” costs, such as those Juro’s incurred in transporting diapers to its customers in the Billings area via company truck. It also argued that Medicaid code W2839 authorized claims for the costs of shipping “minor supplies,” and noted the Department had previously indicated “minor supplies” included diapers. Juro’s requested a “fair hearing” before a hearing officer of the Montana Board of Public Assistance (Board). The hearing occurred in December of 2000.
¶7 Juro’s operations manager, Janna Jurovich, testified at the hearing. Frank Malek testified for the Department. The hearing officer’s subsequent Fair Hearing Decision (Decision) ultimately concluded the Department’s interpretation of the Rule’s term “delivery fees” to include both costs of shipping via common carrier and “provider travel” costs with regard to diapers was reasonable and not inconsistent with the Rule. Accordingly, it ordered Juro’s to reimburse the Department for the improperly submitted and paid charges associated with shipping diapers to its Medicaid patients outside the Billings area during the audit period.
¶8 Juro’s appealed to the Board, which unanimously adopted the Decision, and then petitioned the District Court for judicial review. The District Court affirmed, and Juro’s appeals. Juro’s does not challenge any finding of fact in the Decision.
STANDARD OF REVIEW
¶9 The interpretation of an administrative rule is a question of law. State Personnel v. Investigators, 2002 MT 46, ¶ 62, 308 Mont. 365, ¶ 62, 43 P.3d 305, ¶ 62 (citations omitted). Under the Montana Administrative Procedure Act (MAPA), a district court may review an administrative decision in a contested case to determine-among other things — whether the substantial rights of the party seeking review have been prejudiced because the decision is “affected by... error of law.” See § 2-4-704(2)(a)(iv), MCA. This Court employs the same standard when reviewing a district court’s order affirming or reversing an administrative decision. Marble v. Dept. of Health & Human Serv., 2000 MT 240, ¶ 16, 301 Mont. 373, ¶ 16, 9 P.3d 617, ¶ 16 (citation omitted). Consequently, like the District Court, we determine whether the Decision’s conclusion that the Department’s interpretation of the Rule was reasonable and not plainly inconsistent with the Rule’s spirit is correct. See Langager v. Crazy Creek Products, Inc., 1998 MT 44, ¶ 13, 287 Mont. 445, ¶ 13, 954 P.2d 1169, ¶ 13 (citation omitted).
DISCUSSION
¶10 Is the Decision’s conclusion that the Department’s interpretation of Rule 37.86.1806(7), ARM, was reasonable and not plainly inconsistent with the Rule’s spirit correct?
¶11 As stated above, Rule 37.86.1806(7), ARM, provided that “Medicaid will not reimburse delivery fees in addition to the amount reimbursed for diapers.” The Decision set forth the following analysis:
Obviously, basic physical differences can be seen between delivering a product to a customer via company truck versus shipping the product by common carrier. But despite the obvious differences, there are obvious similarities as well. Both methods have the ultimate purpose of transferring a product to a customer, and there is a financial cost associated with either mode of transfer. In this case it is concluded that the similarities carry the day.
The Decision concluded the Department’s interpretation of the Rule’s term “delivery fees” to include shipping fees for diapers is “reasonable and not inconsistent with ARM 37.86.1806(7).”
¶12 In Easy v. Dept. of Natural Res. & Conserv. (1988), 231 Mont. 306, 309, 752 P.2d 746, 748 (citations omitted), we determined that an “agency’s interpretation of its rule is afforded great weight,” courts should “defer to that interpretation unless it is ‘plainly inconsistent’ with the spirit of the rule,” and the interpretation will be upheld “so long as it lies within the range of reasonable interpretation permitted by the wording.” We note that Easy was not a MAPA case, but we have applied its principles in MAPA cases. See State Personnel, ¶ 63; Brady v. Montana Dept. of Justice, 1999 MT 153, ¶ 22, 295 Mont. 75, ¶ 22, 983 P.2d 292, ¶ 22. Conversely, of course, we do not defer to an “incorrect agency decision.” Grouse Mountain Assoc. v. PSC (1997), 284 Mont. 65, 69, 943 P.2d 971, 973.
¶13 Juro’s primary assertion of error in the Decision’s conclusion regarding the Department’s interpretation is that the Department changed its interpretation when it assessed the overpayment in 2000. In support of this position, Juro’s points to the 1995 notice of the Rule’s amendment, the actual reimbursement of claims for diaper shipping costs during the audit period, and a 2001 amendment to the Medicaid rules. Juro’s also argues the analysis of similarities and differences between shipping and delivery in the Decision was improper, and the “common meaning” of the term “deliver” indicates the term “delivery fees” does not include shipping costs. We address each argument in turn.
1995 Notice of the Rule’s Amendment
¶14 Juro’s asserts the following comment and response in the 1995 notice of amendment to the Rule (before it was renumbered) indicates the Department initially interpreted the Rule to prohibit reimbursement of provider travel only, and the Department should be bound by that interpretation:
COMMENT: Why will the department not cover delivery services for diapers?
RESPONSE: [Another rule from the same subchapter regarding Medicaid prosthetic devices, durable medical equipment and medical supplies] states that provider travel is not reimbursable; delivery is a form of provider travel, which is not separately reimbursable for any durable medical equipment. The department believes the proposed fee for diapers is reasonable to reimburse providers and assure access for recipients without an additional delivery fee.
18 Mont. Admin. Reg. 1973 (Sept. 28, 1995). According to Juro’s, the Department changed its position in 2000 by interpreting the Rule to preclude reimbursement for both “provider travel” and common carrier delivery.
¶15 The Department responds that its interpretation of the Rule did not change between 1995 and 2000. It correctly observes that the comment and response relied upon by Juro’s does not address the meaning of the term “delivery fees” or limit that term to “provider travel.” The commentary merely addresses the Department’s reasons for not reimbursing delivery services. Moreover, the description of delivery as “a form of provider travel” suggests that “provider travel” is a broader term than Juro’s posits here.
¶16 The Department also characterizes Rule 37.86.1806(7), ARM, as a cost containment measure which set an all-inclusive fee for diapers. The response quoted above is not inconsistent with this characterization.
¶17 In addition, the Department points to another comment and response in the 1995 notice of the Rule’s amendment:
COMMENT: How did medicaid come up with fees for diapers, shields and pads?
RESPONSE: The department sent surveys to all suppliers that provide diapers for medicaid recipients and asked them about prices charged for diapers, and the amount needed to continue supplying medicaid recipients with diapers. Prices ranged from 40 cents to $1.50. Suppliers on the upper end of the scale were also increasing prices charged to medicaid because they were delivering as well as selling diapers to their medicaid clients. We then looked at suppliers in particular areas and found that there were already suppliers in all areas supplying diapers at 70 cents or less. The department has not received any comments from suppliers indicating that they would not be providing diapers because of the new medicaid fee schedule. The department believes the proposed fee is reasonable and adequate to reimburse providers and assure access for recipients.
18 Mont. Admin. Reg. 1970 (Sept. 28, 1995).
¶18 This commentary reveals that, in setting a “reasonable and adequate” fee, the Department considered the impact of transport costs-namely, that some suppliers were “increasing prices ... because they were delivering”-but providers also existed “in all areas supplying diapers at 70 cents or less.” The Department’s discussion of its fee-setting process indicates that the intent behind the Rule was to contain costs. Other subsections of the Rule reflect a similar intent. See, e.g., Rule 37.86.1806(l)(a), ARM (providing that the Department will pay a provider the provider’s customary charge for the item or the price set by the Department’s fee schedule, whichever is lower). Overall, the commentary lends support to, but in any event does not establish error in, the Decision’s conclusion that the Department’s interpretation of the Rule as precluding reimbursement of shipping costs was neither “plainly inconsistent” with the Rule’s spirit nor outside the range of reasonable interpretation. See State Personnel, ¶ 63.
Actual Reimbursement
¶19 Juro’s next argues the Department’s actual reimbursement of Medicaid code W2839 claims for diaper shipping costs during the audit period “reinforced” Juro’s interpretation that the Rule precluded reimbursement for provider delivery only. In other words, Juro’s contends that the Department’s reimbursement of diaper shipping costs over the years equates to the Department’s interpretation of the Rule as authorizing such reimbursement.
¶20 The record reflects the Department pays claims on an “as submitted” basis and later audits those payments. As a practical matter, the Department-similar to many businesses-cannot audit every claim as received. The Department audits claims and assesses overpayments only after paying claims during an audit period. Thus, the Department’s payments do not constitute an interpretation of the Rule as allowing reimbursement of diaper shipping costs.
¶21 Moreover, the Montana Legislature has expressly provided that the Department “is entitled to collect from a provider, and a provider is liable to the department for ... the amount of a payment... to which the provider was not entitled, regardless of whether the incorrect payment was the result of department or provider error or other cause ....” Section 53-6-111(2)(a)(i), MCA. Juro’s argument that the Department’s reimbursement of claims precluded it from later determining the reimbursed claims constituted an overpayment would render § 53-6-111(2)(a)(i), MCA, meaningless. We refrain from interpreting a statute in a manner that would defeat its purpose. Hawley v. Board of Oil and Gas Conservation, 2000 MT 2, ¶ 12, 297 Mont. 467, ¶ 12, 993 P.2d 677, ¶ 12 (citation omitted). Therefore, we reject Juro’s argument.
2001 Amendment
¶22 Juro’s also asserts in a footnote, without any supporting authority, that the Department’s 2001 amendment to its rules “adds credence” to its contention that the Department changed its interpretation. As amended, the rules provide that the Department does not reimburse “any delivery, mailing or shipping fees or other costs of transporting the item to the recipient’s location” for prosthetic devices, durable medical equipment, and medical supplies-including diapers. See 8 Mont. Admin. Reg. 605 (Apr. 26, 2001).
¶23 We generally apply the same principles in construing administrative rules as we do in construing statutes. Glendive Medical Center, Inc. v. DPHHS, 2002 MT 131, ¶ 15, 310 Mont. 156, ¶ 15, 49 P.3d 560, ¶ 15 (citation omitted). Amendments are presumed to indicate an intent to change existing law. See, e.g., State ex rel. Mazurek v. District Court, 2000 MT 266, ¶ 18, 302 Mont. 39, ¶ 18, 22 P.3d 166, ¶ 18 (citations omitted). The presumption is not conclusive, however, because an amendment may merely clarify the lawmaker’s intent. See Mont. Dept. of Rev. v. Am. Smelting & Refining (1977), 173 Mont. 316, 325, 567 P.2d 901, 906 (citation omitted); Madison v. Pierce (1970), 156 Mont. 209, 216-17, 478 P.2d 860, 864.
¶24 Here, the Department stated that the 2001 amendment would “clarify” its longstanding policy not to pay any delivery fees or shipping costs for diapers and durable medical equipment. See 8 Mont. Admin. Reg. 610 (Apr. 26, 2001). Absent both authorities to the contrary and a developed argument, we decline to address Juro’s assertion regarding the 2001 amendment further. See Rule 23(a)(4), M.R.App.P.
Similarities and Differences
¶25 As noted above, the Decision stated shipping and delivery were similar, because both involve associated costs and the ultimate purpose of transferring a product to a customer. Juro’s asserts this analysis is irrelevant to the interpretation of the Rule’s language that “Medicaid will not reimburse delivery fees in addition to the amount reimbursed for diapers.” We disagree. In determining whether the Department’s interpretation of the Rule is reasonable, the central question is whether the term “delivery fees” includes shipping costs. The analysis of similarities and differences between delivery and shipping relates to this question.
¶26 Juro’s also challenges the observation in the Decision that both shipping and delivery incur costs. It contends the failure to distinguish the “incremental” shipping costs added to a business’s overhead from the “fixed costs” of provider delivery constitutes error. However, Juro’s does not support this conclusory statement with citation to authority or substantial discussion. See Rule 23(a)(4), M.R.App.P. While it is true that fixed and incremental costs are different, both are costs. Juro’s simply does not articulate a rationale for its notion that the issue of whether the Department’s interpretation of the Rule is reasonable rests in any way on the distinction between types of costs.
“Common Meaning”
¶27 Finally, Juro’s argues the Department intended to distinguish the term “delivery” from the term “shipping” by using the term “delivery fees” in the Rule and the term “shipping charges” in the description of Medicaid code W2839, under which Juro’s submitted the claims at issue. Specifically, it argues “the most common meaning of the term ‘deliver’ is to hand over, which implies a direct transaction between two parties. On the other hand, the term ‘ship’ means to cause to be transported-this implies that a middleman has a part in the transaction.” This analysis apparently stems from entries in Webster’s New Collegiate Dictionary, the year and edition of which are not of record, submitted at the hearing. Juro’s does not provide any authority regarding implicit meanings or the selection of a word’s “most common meaning.”
¶28 As the Department observes, and Juro’s witness conceded at the hearing, the submitted dictionary entry for the word “deliver” contains more than one definition. Moreover, Juro’s implicitly concedes in its brief on appeal that the word “deliver” encompasses shipping by using the word “[djeliveries” to describe the transport of packages “shipped via United Parcel Service.”
¶29 An appellant bears the burden of establishing error. Hawkins v. Harney, 2003 MT 58, ¶ 35, 314 Mont. 384, ¶ 35, 66 P.3d 305, ¶ 35 (citation omitted). Based on the multiple dictionary definitions, Juro’s concessions that “deliver” has more than one meaning, and the lack of authority provided on appeal, we conclude Juro’s has not met its burden of establishing error based on the “common meaning” of the term “deliver.”
¶30 We conclude the Decision’s conclusion that the Department’s interpretation of the Rule as precluding reimbursement of shipping costs for diapers was reasonable and not plainly inconsistent with the Rule’s spirit is correct. Therefore, we hold the District Court did not err in upholding the final administrative decision.
¶31 Affirmed.
JUSTICES WARNER, REGNIER, COTTER and LEAPHART concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 On the Powell County side of McDonald Pass, Jerry Brander was arrested for driving under the influence of alcohol or drugs. He was subsequently charged with felony driving under the influence of alcohol or drugs; misdemeanor habitual traffic offender operating a motor vehicle; and misdemeanor careless driving. After entering a plea of not guilty, Brander moved the court to suppress evidence and to dismiss the charges. The District Court denied his motions. Pursuant to a plea agreement reserving his right to appeal the denial of the motions to suppress and dismiss, Brander changed his plea to guilty and was sentenced. Brander now appeals, claiming the District Court should have suppressed the evidence and dismissed the charges. We affirm.
¶2 Deputy Sheriff Roselles was in the Elliston area when he received a report from dispatch that it had received an anonymous tip of a drunk driver. The caller stated that Jerry Brander was driving drunk eastbound on his way to Stoner’s (a bar on Highway 12) in a brown Isuzu pickup with a topper and license plate number 28T-142. Finding no such vehicle at Stoner’s, Roselles continued east towards McDonald Pass. He soon encountered a dirty dark blue Isuzu pickup with a topper and license plate 28T-412, which was close to the description given by the anonymous caller. Roselles called dispatch to get an identification of the registered owner. He observed that the vehicle was moving slowly, at a rate of 30 to 35 mph in a 70 mph zone, and was meandering in its lane, swerving back and forth next to the fog line. It crossed the fog fine, and swerved again, partially crossing into the other eastbound lane without signaling and then back into the right hand lane. As the vehicle was approaching the county line at the top of the pass, Roselles initiated a vehicle stop. Approaching the truck, he could see a number of cases of beer in the back end, both opened and unopened. Roselles ordered Brander out of the truck, and it soon became apparent from his odor and behavior that Brander was intoxicated. Brander failed several field sobriety tests and a Portable Breath Test (PBT) revealed a Blood Alcohol Content (BAC) of 0.288. He was then arrested.
¶3 We review a district court’s denial of a motion to suppress evidence to determine whether the court’s finding that the officer had particularized suspicion to justify the investigative stop is clearly erroneous. State v. Nelson, 2004 MT 13, ¶ 5, 319 Mont. 250, ¶ 5, 84 P.3d 25, ¶ 5.
¶4 The “reasonable grounds” standard for making an investigative stop under § 61-8-403(4)(a)(i), MCA, is the effective equivalent of the “particularized suspicion” test for an investigative stop under § 46-5-401, MCA. Grindeland v. State, 2001 MT 196, ¶ 10, 306 Mont. 262, ¶ 10, 32 P.3d 767, ¶ 10.
¶5 Brander argues that Deputy Roselles could not justify an investigative stop on the basis of the information provided by the anonymous caller because the information did not meet the three-part test established in State v. Pratt (1997), 286 Mont. 156, 951 P.2d 37. The Pratt test is used to evaluate the existence of a particularized suspicion to justify an investigative stop pursuant to a tip. The first factor is whether the informant remains anonymous, or through identification, subjects herself to civil and criminal liability. The second factor is whether the report is based on personal observations. The third factor is whether the officer’s own observations corroborate the informant’s information. Brander contends that the informant did not identify herself, that there is no evidence that she was relying on information based on her personal observations, and that Roselles did not find the vehicle in the location described in the tip. Brander’s argument, however, assumes that Roselles’ stop of Brander was based solely on the citizen-tip with no independent observation of suspicious activity. Deputy Roselles’ admission that he did not know whether or not the vehicle he was stopping was the vehicle from the tip illustrates the fact that he was not relying solely on the tip. Rather, in contrast to Pratt; State v. Elison, 2000 MT 288, 302 Mont. 228, 14 P.3d 456; and State v. Roberts, 1999 MT 59, 293 Mont. 476, 977 P.2d 974, where the stops were based upon the information in the tips without any independent observation of suspicious activity, Deputy Roselles followed Brander for several miles and was able to make independent observations giving rise to a particularized suspicion of driving under the influence.
¶6 Brander asserts that, according to State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967 P.2d 363, it is not illegal to cross the fog line, or to meander within the lane, and that changing lanes is only illegal if done in an unsafe manner. However, while observation of a traffic offense naturally gives rise to a particularized suspicion, it is not necessary that an officer observe a moving violation to support a particularized suspicion of driving under the influence. In State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293, we adopted the two-part test enunciated by the United States Supreme Court in United States v. Cortez (1981), 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621, to evaluate whether a police officer had a particularized suspicion to make an investigative stop. Under Gopher, the State has the burden of showing:
(1) objective data from which an experienced officer can make certain inferences; and (2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.
Thus the question is not whether any one of Brander’s driving aberrations was itself “illegal” but rather, whether Deputy Roselles could point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. State v. Martinez, 2003 MT 65, ¶ 21, 314 Mont. 434, ¶ 21, 67 P.3d 207, ¶ 21.
¶7 Deputy Roselles testified that he was not certain that the vehicle he was stopping was the one referred to by the anonymous caller, but that based on his training and experience as a peace officer and his personal observations of the vehicle moving very slow, meandering and crossing the fog line, he suspected the driver was under the influence. The record supports the District Court’s conclusion that Deputy Roselles had a particularized suspicion to effectuate a vehicle stop of Brander.
¶8 Relying on Hulse v. State, 1998 MT 108, 289 Mont. 1, 961 P.2d 75, Brander also claims that Deputy Roselles did not have authority to order Brander out of the vehicle and that all the subsequent field sobriety tests should be suppressed. In Hulse, we stated that an officer could administer field sobriety tests based upon particularized suspicion rather than the more stringent standard of probable cause. Hulse, ¶ 38. Brander claims that, because Deputy Roselles did not smell the alcohol on his breath until after he was ordered out of his vehicle and was standing behind his pickup, Deputy Roselles did not have a particularized suspicion to warrant administration of field sobriety tests. But in Hulse, we also noted that:
particularized suspicion for the initial stop may also serve as the necessary particularized suspicion for the administration of field sobriety tests, providing the basis for the initial stop was of the nature that would lead an officer to believe that the driver was intoxicated. In other words, if an individual is driving erratically-e.g., if he is driving all over the road, crossing the center line and the fog line, weaving in and out of traffic, or braking for green lights-such evidence would serve as particularized suspicion both for the officer to initially stop the driver and to administer field sobriety tests.
Hulse, ¶ 39.
¶9 Here, Brander’s driving was sufficiently erratic to support Deputy Roselles’ particularized suspicion that Brander was driving under the influence. Although Roselles did not notice the smell of alcohol emanating from Brander until after he and Brander walked to the back of his truck, Roselles already had formed a particularized suspicion, and he therefore had the authority to administer field sobriety tests. The order of the District Court is affirmed.
JUSTICES REGNIER, COTTER, WARNER and RICE concur.
|
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] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶ 1 In this action, Pam Bailey claimed she was wrongfully terminated from employment with Beartooth Communications Company (Beartooth), a subsidiary of Sunbelt Communications Company. A jury in the First Judicial District Court, Lewis and Clark County, found Bailey’s employment was terminated during her probationary period and, as a result, the court entered judgment in favor of Beartooth, the only remaining defendant at the time of trial. Bailey appeals from the District Court’s denial of her motion for new trial. We affirm.
¶2 We restate the issues as:
¶3 1. Did the District Court err by denying Bailey’s motion for new trial?
¶4 2. Did the District Court err by failing to articulate that it had made a conscientious judgment as to Bailey’s motion for new trial?
BACKGROUND
¶5 KTVH television in Helena, Montana, hired Pam Bailey as an advertising salesperson in 1987. Bailey was still employed at KTVH in July of 1997, when Beartooth purchased the television station and William Stebbins became its general manager.
¶6 In November of 1997, Beartooth suspended Bailey from employment on grounds that she had violated company policy by disclosing company information to a competitor. Beartooth terminated Bailey’s employment one week later.
¶7 Bailey sued Beartooth, Sunbelt Communications Company and Stebbins for wrongful discharge, alleging that no good cause existed to justify her termination from employment. Before trial, Sunbelt and Stebbins moved for summary judgment and the District Court dismissed the claims against them.
¶8 Beartooth presented two defenses at trial. First, it asserted that Bailey was a probationary employee whose employment could be terminated without cause. Second, Beartooth contended that, even if Bailey was not a probationary employee, good cause existed for her termination. The jury found Bailey was a probationary employee during her employment with Beartooth and her employment was terminated during her probationary period. As a result, the District Court entered judgment for Beartooth.
f 9 Bailey moved for a new trial on grounds that defense counsel made improper statements during closing argument and a juror engaged in misconduct. The District Court denied the motion and Bailey appeals.
STANDARD OF REVIEW
¶10 Our standard of review of the denial of a motion for new trial is whether the district court manifestly abused its discretion. Satterfield v. Medlin, 2002 MT 260, ¶ 14, 312 Mont. 234, ¶ 14, 59 P.3d 33, ¶ 14 (citation omitted). An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Simmons Oil Corp. v. Wells Fargo Bank, N.A., 1998 MT 129, ¶ 17, 289 Mont. 119, ¶ 17, 960 P.2d 291, ¶ 17 (citation omitted).
ISSUE 1
¶11 Did the District Court err by denying Bailey’s motion for new trial?
a. Statements made by Beartooth’s counsel during closing argument
¶12 During closing argument, Beartooth’s counsel showed the jury an enlargement of a page from an employee handbook which Bailey had signed on July 21, 1997, entitled “Acknowledgment of Receipt of Handbook.” The page read, in relevant part, “I acknowledge that I have received the KTVH Employee Handbook, and I accept responsibility to read it.” The Acknowledgment also stated, “I understand and agree that my employment is for no defined duration and that my employment may be terminated at any time, by either KTVH or myself.”
¶13 Bailey’s counsel objected that the enlargement seemed to refer to at-will employment. In response to the objection, the District Court drew the jury’s attention to the above language in the exhibit and stated:
[The enlargement] refers to her being an at-will employee. I have already ruled that that is not a part of this case in Montana. We do not have at-will employees, and the paragraph at the bottom of that page is not the law in Montana and does not apply to this case; and you’re instructed to completely disregard that paragraph.
¶14 Bailey contends that, because the page from the employee handbook implies employment at will, she was denied a fair trial. Relying on Lopez v. Josephson, 2001 MT 133, 305 Mont. 446, 30 P.3d 326, she asserts we should grant a new trial to prevent a miscarriage of justice.
115 Lopez is of no assistance to Bailey. There, plaintiffs counsel persisted in asking numerous objectionable questions and raising impermissible inferences over the course of a two-day trial, despite the district court’s repeated admonishments. We concluded the misconduct of plaintiffs counsel was so pervasive as to compel reversal. Lopez, ¶¶ 33-34. The situation here is far different. The employee handbook had been admitted into evidence as an exhibit pursuant to the parties’ stipulation. In addition, the defense had shown the page from the employee handbook to the jury without objection during its cross-examination of Bailey and direct examination of another witness. Finally, assuming arguendo that counsel improperly showed the exhibit to the jury, the court cured any error by immediately admonishing the jury that Montana is not an at-will employment state.
¶16 We hold the District Court did not manifestly abuse its discretion by denying Bailey’s motion for new trial based on statements made by defense counsel during closing argument.
b. Juror misrepresentations
¶17 During voir dire, counsel for both parties asked prospective jury members if they knew any of the parties or witnesses. They did not introduce Bailey’s husband and he was not present at the time.
¶18 Bailey’s husband was in the courtroom during trial, however. On the second day of trial, after Bailey rested her case, the court convened in chambers with counsel and Juror No. 7. The judge advised counsel that Juror No. 7 had informed the court she knew Bailey’s husband. The juror stated she saw Bailey’s husband in the courtroom during trial and realized she had briefly met him eight or ten years before when he had borrowed some tools from her husband. She reaffirmed her belief that she could be a fair and impartial juror. The juror then left chambers and the District Court offered counsel an opportunity to put anything else on the record. Bailey’s counsel replied he had nothing more. The court ruled that the juror’s statements did not require that she be excused.
¶19 Following the jury’s verdict for Beartooth, Bailey moved for new trial on the basis that the juror had not revealed information regarding her past contact with the Baileys. Specifically, Bailey recalled a 1996 legal dispute concerning a proposed Helena Valley subdivision adjacent to property owned by the Baileys. The juror and her husband had contracted to purchase a lot in the proposed subdivision. Bailey submitted a copy of the minutes from a 1996 Lewis and Clark County Commission meeting listing both herself and the juror as attendees. She also submitted documents showing that, following the County Commission’s approval of the subdivision, a homeowners association to which the Baileys belonged brought litigation against the subdivision, Lewis and Clark County, and the juror and her husband. Bailey characterizes her relationship with the juror in the subdivision matter as an adversary situation.
¶20 Bailey cites two cases in support of her argument on this issue, neither of which involved a motion for new trial for juror misconduct. She cites Satterfield for the “manifest abuse of discretion” standard of review of a trial court’s denial of a motion for new trial. She cites Westmark Intern. Corp. v. Gold Hill Placers, Inc., 2003 MT 119, 315 Mont. 492, 70 P.3d 731-a quiet title action in which we affirmed the district court’s denial of a motion for new trial — only for the general proposition that irregularities in trial proceedings of a substantial nature justify a new trial.
¶21 Bailey has not established a prior relationship with Juror No. 7 which rises to the level of adversaries, as she claims. The minutes of the County Commission meeting at which both Bailey and the juror were present do not indicate that either of them spoke publicly at the meeting. Further, the juror and her husband ultimately were dismissed from the subdivision litigation after they withdrew from the contract to purchase a lot. Bailey has established no dishonesty, lack of candor or misrepresentation on Juror No. 7's part. Moreover, until after the trial of this case was completed, Bailey herself apparently forgot about this purported “adversary situation” in which she had previously been involved with Juror No. 7. Her counsel did not advance this argument when the court offered counsel the opportunity to put anything else on the record. Indeed, counsel added nothing to the record and did not object to the District Court’s decision regarding Juror No. 7.
¶22 We hold the District Court did not manifestly abuse its discretion by denying Bailey’s motion for new trial because of juror misrepresentations.
ISSUE 2
¶23 Did the District Court err in failing to articulate that it had made a conscientious judgment as to Bailey’s motion for new trial?
¶24 Bailey relies on the Simmons Oil definition of abuse of discretion as arbitrary acts “without conscientious judgment” to argue that a district court must make an affirmative showing that it has acted conscientiously in rendering a decision in response to a motion for a new trial. She states the District Court failed to articulate any reason why it denied her motion for a new trial and thus failed to satisfy that “requirement.” Contrary to Bailey’s assertions, the language in Simmons, ¶ 17, is merely a definition of abuse of discretion. It does not require or even suggest the necessity of an affirmative articulation by a trial court that it made a conscientious judgment in ruling on a motion for new trial.
¶25 In relation to this issue, Bailey also mentions “pronouncements” by this Court in C. Haydon Ltd. v. Montana Min. Properties, Inc. (1997), 286 Mont. 138, 146, 951 P.2d 46, 51. The page in the Haydon opinion to which Bailey refers reiterates the test for an abuse of discretion discussed above. Moreover, the discussion of the court’s denial of the motion for new trial in that case does not impose any content requirements for an order denying such a motion. See Haydon, 286 Mont. at 153-55, 951 P.2d at 55-56.
¶26 The District Court’s order denying Bailey’s motion for new trial states the parties’ arguments were considered. Bailey has not established that anything more is required. We hold the District Court did not manifestly abuse its discretion in denying Bailey’s motion for new trial by failing to articulate that it had made a conscientious judgment as to Bailey’s motion for new trial.
¶27 Affirmed.
JUSTICES WARNER, RICE, REGNIER and NELSON concur.
|
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JUSTICE WARNER
delivered the Opinion of the Court.
¶1 Appellant seeks review of several orders entered in the Fourth Judicial District Court, Missoula County, establishing child support, denying an evidentiary hearing, denying a motion for new trial and relief from judgment, and denying a motion to modify child support. Three issues are presented on appeal.
¶2 1) Whether the District Court erred in denying Appellant’s request for an evidentiary hearing.
¶3 2) Whether the District Court erred by averaging Appellant’s income over a three year span when it calculated his child support obligation.
¶4 3) Whether the District Court erred when it denied Appellant’s request for credit for in-kind contributions to his daughter’s welfare, above his required monthly support payment.
¶5 We affirm the District Court.
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Deborah Stewart and Michael Rogers have one child, Jessica Stewart. In 1993, the District Court approved a parenting agreement that provided that Rogers would pay Stewart $375 per month child support. In July of 2000, Stewart filed an amended motion to amend the parenting plan to, among other things, increase child support. Stewart alleged that she had suffered an injury at work and was living on Workers’ Compensation benefits which had decreased her income. Stewart also alleged that Rogers’ income had increased and he was capable of providing more support to Jessica.
¶7 On September 12,2001, the District Court found that an increase would be warranted simply because eight years had passed, Jessica was sixteen years old, and the original award had never been adjusted. The court referred the portion of the motion seeking increased child support to Ann Steffens, a court-appointed child support expert. The referral requested Steffens determine whether increased child support was warranted and authorized her to conduct hearings and request information from the parties. The District Court ordered Steffens to prepare recommendations pursuant to the Montana Child Support Guidelines and submit them to the parties. Once submitted, the District Court allowed the parties ten days to register objections and ordered that any evidence and calculations upon which the objections were based be appended to the objections. The District Court warned the parties that failure to comply with any aspect of its orders would result in sanctions. The District Court believed a hearing would not be required, but reserved its authority to order a settlement conference and/or hearing.
¶8 In April 2002, Steffens submitted her first recommendations in which she pointed out that Rogers had been asked to provide corporate tax returns but refused. Both parties objected to the recommendations, but failed to submit alternative calculations as ordered by the District Court. The District Court then ordered Steffens to review the objections and any subsequent submissions and to recalculate and make any modifications necessary to her recommendations by July 25, 2002. On July 23,2002, Steffens informed the District Court in a letter that she still needed several explanations from both parties and requested additional time to complete her recalculations. In the letter, Steffens pointed out that Rogers had still failed to submit any business tax information for his business, and had neither timely informed her that a scheduled sale of his business had fallen through, nor that his wife had acquired a 50% interest in his business. On September 20, 2002, Steffens advised the District Court by letter that Stewart had provided all that had been requested of her, but that Rogers had submitted only his 2001 corporate tax return, and this only after twice submitting illegible copies. Steffens informed the District Court that she did not expect any more documentation to be forthcoming from Rogers and proposed to do the recalculations based only on information for which she had supporting documentation. She declined to consider anything Rogers had merely verbalized to her. On October 21, 2002, Steffens informed the District Court by letter that Rogers had provided some of the information requested, but had still not complied with her request for his corporate tax returns for 1999 and 2000.
¶9 On November 5, 2002, Steffens submitted her final recommendations for recalculation of child support. She noted that Rogers never did comply with her requests for copies of his 1999 and 2000 business tax returns, while insisting that she do the calculations for past support based on his 2000 and 2001 individual tax returns. This time frame corresponded with the period in which his wife acquired a 50% interest in his business, resulting in a decrease in Rogers’ income for purposes of calculating child support. She also noted that Rogers had provided her with copies of share certificates indicating that Rogers’ wife did in fact own 50% of his business, but had refused to produce any evidence of the circumstances surrounding the transfer. Steffens concluded that these refusals indicated that disclosure of the documentation would not have served Rogers’ interests and therefore he chose not to disclose them. Steffens informed the District Court that because Rogers refused to disclose requested information, she simply disregarded the 50% stock transfer to his wife and calculated all the income from the business as Rogers’ income. Additionally, Steffens noted that Rogers had requested she reduce the figures for his interest income from investments because this income had decreased when he had to cash in some of his investments to give his business a cash infusion. However, when asked to provide proof that the income from the investments was actually used for the business, Rogers again refused to provide documentation, and Steffens chose to disregard his request.
¶10 Ultimately, the District Court issued an order modifying child support due to changed circumstances and followed Steffens’ recommendation worksheet number five. The District Court increased Rogers’ support obligation from $375 per month to $1323 per month, and calculated his past due support at $28,440. Prior to this ruling, the District Court denied Rogers’ motion for evidentiary hearing. After the ruling, the District Court denied Rogers’ motions for new trial, for stay of execution, and for modification of child support. Rogers appeals, primarily arguing that the District Court should not have accepted Steffens’ recommendations without giving Rogers a chance to examine Steffens, or to appeal her conclusions to the District Court in an evidentiary hearing.
STANDARD OF REVIEW
¶11 Atrial court’s decision regarding sanctions is reviewed for abuse of discretion. Vermeer of Washington, Inc., v. Jones, 2004 MT 77, ¶ 7, 320 Mont. 435, ¶ 7, 87 P.3d 516, ¶ 7.
¶ 12 Child support determinations are reviewed for abuse of discretion. Review of the trial court’s conclusions of law on such matters is whether the conclusions are correct. In re Marriage of Brown (1994), 263 Mont. 184, 187, 867 P. 2d 381, 382.
DISCUSSION
¶13 1) Whether the District Court erred in denying Appellant’s request for an evidentiary hearing.
¶14 Section 40-4-208, MCA, governs requests for modification of child support. Section 40-4-208(6), MCA, states that a decree may be modified utilizing the provisions of §§ 40-4-251 through 40-4-258, MCA, “for failure to disclose assets and liabilities.” Sections 40-4-251 through 40-4-258, MCA, deal specifically with disclosures required to be made in marriage dissolution cases, but as noted, the Legislature has made provision for these sections to apply equally to child support modification cases in which disclosure of financial information is not forthcoming from a party. Section 40-4-255(1), MCA, allows a party to a child support modification action who has made full financial disclosure to request the same from a noncomplying party. Section 40-4-255(2), MCA, reads as follows:
If a noncomplying party fails to comply with a request under subsection (1), the complying party may file either or both of the following:
(a) a motion to compel further response;
(b) a motion for an order preventing the noncomplying party from presenting evidence on issues that should have been covered in the declaration of disclosure.
Finally, as sanction for noncompliance, § 40-4-255(3), MCA, allows the District Court to require the noncomplying party to pay the complying party’s attorney’s fees, “in addition to any other remedy provided by law.”
¶15 At the outset of this case, in September 2000, the District Court ordered Stewart and Rogers to complete any outstanding discovery and then participate in a settlement conference with a special master. Rogers complied with most of Stewart’s discovery requests, but refused to submit complete copies of his income tax returns and business information. A settlement conference was never held. In December 2000, Stewart filed a motion to compel. Rogers responded that he would only disclose his business records to the District Court for an in camera review. In September 2001, the District Court appointed Steffens to assist in preparation of the child support calculations, ordered both parties to comply with her requests, threatened sanctions for noncompliance, and reserved ruling on the motion to compel, pending receipt of Steffens’ report. In February 2002, Stewart filed a motion to compel Steffens to compel Rogers to complete Steffens’ requests for financial disclosure, because she had not yet received any word of progress being made in the case. In April 2002, Steffens submitted her first recommendations in which she indicated that Stewart had not submitted complete income information and that Rogers had refused to submit any business information. In May 2002, Stewart submitted the remainder of the income information requested of her, along with her obj ections to the proposed recommendations, and a request that the District Court rule on her motion to compel and order Rogers to comply with Steffens’ requests. In June 2002, the District Court ordered Rogers to file detailed objections to the proposed recommendations along with all supporting documentation. In July 2002, Stewart moved the District Court to set a date for a settlement conference. Rogers resisted, citing the need to wait for Steffens’ revised recommendations. Also in July 2002, Rogers filed his objections to the original recommendations and included information on his personal income but still refused to submit any business information. In lieu of this requested information, Rogers submitted an affidavit and a statement from his accountant essentially stating that Rogers’ business had taken a downturn and he would not be able to maintain his income at the levels reported in 1999 and 2000. He specifically requested Steffens not consider his income for 1999 because 1999 “was an exceptionally good year.” No supporting documentation was submitted. Stewart filed a response to Rogers’ objections arguing that because Rogers did not follow the District Court’s order to submit supporting documentation, his objections should not be considered. The District Court then notified the parties that it would take no further action until Steffens could report receipt of all requested material. In November 2002, Steffens submitted her second recommendation. In this recommendation, Steffens reported that Rogers never did comply with her requests for his business information, including the personal investments he purportedly cashed in to infuse the business.
¶16 After receiving Steffens’ second recommendations, Rogers suggested that the parties negotiate an arrearage figure at a settlement conference. Stewart responded by arguing that Rogers had plenty of time to submit the requested documentation and that “he should not be permitted to prolong this process further.” She reiterated Steffens’ conclusion that Rogers should not be able to dictate the amount of his child support payment without fully complying with the District Court’s orders. The District Court then ordered Steffens to average Rogers’ income for child support using the three-year average for self-employed individuals set forth in Albrecht v. Albrecht, 2002 MT 227, 311 Mont. 412, 56 P.3d 339.
¶17 At this point, Rogers made his first formal request for an evidentiary hearing, arguing that there were significant discrepancies between Steffens’ conclusions and his positions in the matter that required the District Court to make appropriate findings of fact. Stewart objected to the request for an evidentiary hearing arguing that Rogers was only interested in a hearing when it became apparent that there would be a substantial increase in his support amount. Stewart’s objection states, “Mr. Rogers should not be given an opportunity to present additional evidence at a hearing when he has repeatedly failed to cooperate with Ann Steffens and has not provided her with the material she has so frequently requested.” The District Court denied Rogers’ motion for evidentiary hearing, chronicling Rogers’ two-year stonewall of Steffens’ requests for business information, and Rogers’ repeated objections submitted to the District Court and to Steffens with unsupported assertions and allegations. Specifically, the District Court found that:
The objections clearly reveal that the Respondent continues to evade the issue regarding transfer of his business to his wife by alleging that the certificates provided, as well as his individual income tax returns, are sufficient to show a legitimate transfer. The Court disagrees. The timing of this transfer closely correlates with the filing of the motion to modify child support. The Respondent’s refusal to submit 1999 and 2000 business tax returns, coupled with the Respondent’s refusal to explain the details of the transfer, lead the Court to conclude, as did Ann Steffens, that the Respondent is withholding information that is not in the Respondent’s best interest to produce. The Respondent’s failure to submit the above evidence and his own proposed calculations for child support with his objections should not be rewarded with an opportunity for the Respondent to explain away, in an evidentiary hearing, his failure to cooperate with Ann Steffens in the preparation of her child support calculations. The Court’s order of September 12,2001 specifically provided that the failure by a party to submit requested information and data to Ann Steffens would be met with sanctions.
¶18 We have found no Montana caselaw interpreting § 40-4-255(2)(b), MCA, which allows a disclosing party to move for an order preventing a non-disclosing party from presenting evidence on issues that should have been covered in a disclosure. But it is clear from the language of § 40-4-255(2)(b), MCA, that the court may enter an order preventing a non-complying party from presenting evidence as a sanction for parties who, like Rogers, are unwilling to make full disclosure of relevant financial information to the District Court. Procedurally, the statute requires the complying party to file a motion. In this instance, while it was technically Rogers who filed a motion seeking an evidentiary hearing, Stewart objected to this motion on grounds that Rogers had all the chances he deserved to present the District Court with all the evidence he had available to him. We hold that this order of events sufficiently comports with the statutory requirements. The District Court denied Rogers’ motion. We conclude there is no abuse of discretion in this ruling.
¶19 2) Whether the District Court erred by averaging Appellant’s income over a three year span when it calculated his child support obligation.
¶20 The District Court ordered Steffens to average Rogers’ income for the years 1999-2001, which she did utilizing the information she had, and as noted, disregarding assertions Rogers refused to substantiate. Rogers now complains that the District Court did not attribute to him a realistic or sustainable income figure. Rogers cites Albrecht for the proposition that a court must attribute a realistic income to the parties and that the District Court must take into account the actual situation of each party. The District Court acknowledged this requirement, but found that Rogers’ income did not fluctuate so extraordinarily between 1999 and 2001 that a three-year average of his income would result in excessive hardship. The District Court also based its decision in part upon the fact that Rogers did not submit alternative calculations as ordered by the District Court, nor did he completely comply with requests for documentation.
¶21 We agree with the District Court that a three-year average was appropriate in this case. As stated in Albrecht, a district court is not permitted to deviate from the guidelines unless there is clear and convincing evidence that an injustice will result absent a deviation. Albrecht, ¶ 14. Rogers’ unsubstantiated statements do not amount to clear and convincing evidence. Rogers could have bolstered his claims by submitting alternative calculations accompanied by supporting documentation. He chose not to do so and the District Court did not abuse its discretion in accepting Steffans’ three-year average.
¶22 3) Whether the District Court erred when it denied Appellant’s request for credit for in-kind contributions to his daughter’s welfare, above his required monthly support payment.
¶23 Rogers’ entire argument for credit for in-kind contributions amounts to the following:
[T]he Court cited the Administrative Rules of Montana for the well-known proposition that payments in kind do not constitute child support. However, that rule has been interpreted in cases where an obligor attempted to get credit against an outstanding obligation for his in-kind contributions. Here, Rogers contributions were in addition to his child support obligation and in a situation where he was, after the fact, assessed a child support arrearage.
The rule cited by the District Court, ARM 37.62.142, is the correct rule. Rogers cites no authority for his alternative theory, in violation of Rule 23(a)(4), M.R.App.P. We will not further consider his contention. The Duck Inn v. Montana State University-Northern (1997), 285 Mont. 519, 523, 949 P.2d 1179, 1181.
¶24 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, NELSON and LEAPHART concur.
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CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Stevan W. Papich and Mary Lou Papich (the Papiches) filed suit against Quality Life Concepts, Inc. (QLC) in the Eighth Judicial District Court, Cascade County, alleging they suffered injuries as a result of QLC’s negligent failure to control A.M., a developmentally disabled person. A jury found QLC was not negligent and the District Court denied the Papiches’ motion for a new trial and to alter or amend the judgment. The Papiches appeal. We affirm.
¶2 We restate the issues as follows:
¶3 1. Did the District Court manifestly abuse its discretion in denying the Papiches’ motion for a new trial?
¶4 2. Does sufficient evidence support the jury’s finding that QLC was not negligent?
BACKGROUND
¶5 On November 5, 1997, Stevan W. Papich, an employee of the Easter Seal vocational day program in Great Falls, Montana, was preparing to take a van full of developmentally disabled consumers on a day program outing. He heard A.M., the passenger sitting immediately behind him, say something. Papich turned in his seat to ask A.M. what he wanted, and A.M. punched Papich in the eye. The punch broke Papich’s eyeglasses and caused the retina in his left eye to detach.
¶6 A.M. was 51 years old at the time, but had the mental age of a 4-year-old and an IQ of less than 40. Since 1983, he had lived in a group home operated by QLC, a nonprofit corporation which contracts with the Montana Department of Public Health and Human Services (DPHHS) to provide services for developmentally disabled persons.
¶7 The Papiches filed this action in District Court alleging that QLC negligently failed to prevent A.M. from hurting others, resulting in Stevan’s loss of eyesight and other damages and loss of consortium for Mary Lou. Before trial, the District Court granted the Papiches’ request to exclude any evidence of negligence by Easter Seal, which has tort immunity under the Workers’ Compensation Act. The court also ruled QLC had a special relationship of custody and control over A.M. and, as a result, had a legal duty of care to those placed within the foreseeable zone of risk created by any breach of that duty. See Lopez v. Great Falls Pre-Release Services, Inc., 1999 MT 199, 295 Mont. 416, 986 P.2d 1081, and LaTray v. City of Havre, 2000 MT 119, 299 Mont. 449, 999 P.2d 1010.
¶8 At trial, the Papiches testified about their injuries. They also presented Stevan’s and others’ testimony about prior incidents in which A.M. had been sexually or physically aggressive toward other persons. Expert witnesses supported the Papiches’ position that QLC breached its duty of care by, among other things, failing to properly medicate A.M. with the behavioral medication Depakote, and that the breach caused the Papiches’ injuries. QLC presented testimony by lay and expert witnesses supporting its position that it did not breach its duty of care and met that duty through staffing and services provided to A.M., using behavioral modification programs, consulting with medical professionals, and communicating with Easter Seal and DPHHS regarding what was happening in A.M.’s life.
¶9 At the end of the four-day trial, the District Court gave the jury a special verdict form on which the first question asked “Was Defendant Quality Life Concepts, Inc., negligent?” The jury was instructed to answer additional questions on the special verdict form only if it answered the first question “yes.” The jury answered “no” to the negligence question, thereby ending its deliberations. The District Court subsequently entered judgment dismissingthe Papiches’ action.
¶10 Thereafter, the Papiches filed a combined motion for a new trial and an altered or amended judgment pursuant to Rule 59, M.R.Civ.P. They argued that, at trial, QLC repeatedly and deliberately violated the pretrial order prohibiting it from presenting any evidence of Easter Seal’s negligence. The Papiches also moved the court to alter or amend the judgment and determine that QLC was negligent as a matter of law, based on: (1) admissions by QLC’s former chief executive officer, Charles Trott; (2) testimony of Dr. Patrick Galvas, a physical medicine and rehabilitation physician who had reviewed A.M.’s records, and opined that, as early as 1994, a behavioral modification program, behavioral medications and movement to a more secure and structured living facility should have been implemented to prevent A.M. from hurting others; and (3) testimony by Drs. John Mendenhall, a psychiatrist who had treated A.M. from September of 1997 to September of 1998, and Jack Hornby, a psychiatrist who treated A.M. from November of 1998 through the time of trial, concerning medication for A.M. After QLC responded, the District Court denied the Papiches’ motion.
¶11 The Papiches appeal. On appeal, they make no argument concerning the testimony of Dr. Galvas. Moreover, because they do not expressly argue their motion to alter or amend the judgment, we do not address it.
ISSUE ONE
¶12 Did the District Court manifestly abuse its discretion in denying the Papiches’ motion for a new trial?
¶13 Rule 59(a), M.R.Civ.P., allows a district court to grant a new trial “for any of the reasons provided by the statutes of the state of Montana.” Section 25-11-102, MCA, lists causes which, if they materially affect the substantial rights of a party, may be grounds for new trial; the list includes “irregularity in the proceedings ... by which either party was prevented from having a fair trial.” Section 25-11-102(1), MCA. A decision on whether to grant a new trial is committed to the sound discretion of the trial judge and will not be disturbed without a showing of manifest abuse of that discretion. Durden v. Hydro Flame Corp., 1998 MT 47, ¶ 30, 288 Mont. 1, ¶ 30, 955 P.2d 160, ¶ 30 (citations omitted).
¶14 The District Court’s pretrial ruling prohibited any evidence of negligence on the part of Easter Seal, Stevan Papich’s employer. The Papiches proposed-and the District Court gave-an instruction directing the jury not to consider the conduct of the State of Montana or Easter Seal “for any purpose whatsoever” in determining whether QLC was negligent.
¶15 The Papiches contend counsel for QLC nevertheless “blamed” Easter Seal for the injury to Stevan Papich. They argue that this constituted serious attorney trial misconduct and advance Durden and Lopez v. Josephson, 2001 MT 133, 305 Mont. 446, 30 P.3d 326, as cases in which we have condemned serious attorney trial misconduct because it prevents opposing litigants from having a fair trial.
¶16 Durden was a product liability action against the manufacturer of a trailer furnace which the plaintiffs claimed allowed carbon monoxide to enter the plaintiffs’ trailer. There, we affirmed the district court’s decision to grant a new trial because defense counsel had referred at trial to “a litany” of topics not material or relevant to the issues or not substantiated by competent expert testimony-including the plaintiffs’ religious beliefs and practices and marital problems. Durden, ¶¶ 31, 37. Lopez was a civil action for assault. There, we ordered a new trial where plaintiffs’ counsel had repeatedly asked objectionable questions and raised impermissible inferences, including repeated references to a notarized statement which the court had ruled inadmissible. Lopez, ¶ 48.
¶17 The Papiches’ brief lists occasions on which counsel for QLC queried witnesses about the interaction of QLC and Easter Seal staffs in providing services for A.M., specifically concerning the individual planning (IP) process. In the IP process, a team-including the developmentally disabled consumer, the day program (here, Easter Seal), the residential program (here, QLC), a DPHHS representative and any other interested parties-meets at least yearly to come to a consensus on goals and objectives for the consumer for the coming year. The Papiches contend QLC violated the pretrial order prohibiting evidence of Easter Seal’s negligence by asking questions about the IP process during its cross-examination of Stevan Papich and its direct examination of both Lynn Morley, QLC’s community support and services director, and Lori Wertz, a DPHHS quality assurance representative. They also contend QLC’s counsel violated the ruling by referring to the IP process during closing argument:
And I think you’ve heard from the State people, Carol LaRocque and Lori Wertz; you’ve heard from an ex-Easter Seal employee, Ms. Derenberger. [QLC] met that duty by trying to bring as much information to the table so informed decisions could be made about what to do with [A.M.], could be made by the team, of which [QLC] was a participant. You heard Ms. Wertz say that that’s how those decisions are made, in this IP process.
¶18 The Papiches’ argument that QLC’s questions and argument relating to the IP process violated the court’s pretrial ruling and constituted serious attorney trial misconduct is disingenuous. The Papiches asked their very first witness, Stevan Papich, about the IP process. Counsel questioned Papich about his authority to make decisions regarding A.M., and Papich replied that his supervisors at Easter Seal, A.M.’s doctors, staff at QLC and the IP team had such authority. He then went on to describe the IP decision-making process and indicated he had participated in at least one IP meeting concerning A.M.
¶19 In short, both parties presented evidence about the IP process. In neither Durden nor Lopez did the party objecting to evidence as inadmissible under a pretrial order also offer evidence on that same subject, as the Papiches did on the IP process. The Papiches opened the door regarding the IP process and, on that basis alone, Durden and Lopez are distinguishable.
¶20 In any event, however, evidence about the IP process does not equate to evidence of negligence by Easter Seal. Negligence means breach of a legal duty resulting in actual loss or damage. Geiger v. Department of Revenue (1993), 260 Mont. 294, 297-98, 858 P.2d 1250, 1252 (citation omitted). Our review of the record convinces us that none of the evidence the District Court admitted concerning the IP process violated the court’s prohibition of evidence of negligence by Easter Seal. In fact, the record is devoid of any indication QLC was attempting to establish that any breach of legal duty by Easter Seal led to the Papiches’ injuries.
¶21 The Papiches also argue entitlement to a new trial because of testimony concerning a line on the pavement at the Easter Seal facility. In examining QLC employee Morley, QLC’s counsel asked:
Q: Could you just send your folks right out to Easter Seal, to go out there and monitor people like [A.M.]?
A. Well, we were allowed by Easter Seal to come if there was an issue. Very rarely was it ever agreed upon that QLC staff would come out and work directly in the Easter Seal facilities.
Q. Was there some kind of line in the pavement?
A. Yes, sir, there was.
Q. What was the line on the pavement?
A. Well, traditionally in services for people with disabilities, the day program and the residential program don’t get along and-
Q. Is that the case here?
A. More often than not, yes. So and so didn’t clean up this mess, and then this is your responsibility.
So there was a line painted on the concrete, and it was agreed upon-this was at Easter Seal at the entrance. And when those QLC vans pulled up, and dropped those clients off, once those clients crossed that line, they became Easter Seal’s responsibility. QLC staff didn’t cross over. Then there was no confusion as to who should be escorted to take the coats off, and who should be putting lunches away, and how the medication was exchanged.
And so it was an attempt at that point in time to eliminate staff confrontation and errors.
At that point, the Papiches objected that the court’s pretrial ruling excluded evidence of Easter Seal’s negligence, and the District Court overruled the objection. QLC’s counsel then elicited testimony that the line in the pavement no longer existed at the time of trial, but that even when the line existed, QLC tried to communicate as fully as possible with Easter Seal and that the IP process was the forum for brainstorming about a consumer. The Papiches point to that testimony, too, stating “[w'Jith that testimony, QLC ‘s counsel firmly impressed upon the jury that A.M.’s IP team functioned within the context of Easter Seal having sole responsibility for A.M. when he crossed the painted line at Easter Seal.”
¶22 The Papiches contend the above exchange amounts to serious attorney trial misconduct such as that condemned in Durden and Lopez. Unlike the evidence in Durden and Lopez, however, the evidence about the line in the pavement was relevant. The topic was raised in the context of QLC’s communications with Easter Seal. According to Morley, the line on the pavement represented a limit on QLC’s ability to monitor A.M. Thus, the testimony related to a limitation on QLC’s authority, not to fault on the part of Easter Seal. ¶23 On appeal, but not in the District Court, the Papiches further argue they were entitled to a new trial on grounds that the District Court abused its discretion in admitting the above-referenced evidence, which they say prejudiced their case. They point out that erroneous admission of prejudicial evidence, if likely to confuse a jury about an important issue, requires a new trial. Unmack v. Deaconess Medical Center, 1998 MT 262, 291 Mont. 280, 967 P.2d 783; State v. Ingraham, 1998 MT 156, 290 Mont. 18, 966 P.2d 103; Cech v. State (1979), 183 Mont. 75, 598 P.2d 584. The Papiches compare the effect of the evidence regarding the IP process and the line on the pavement with the evidence improperly admitted in Unmack, Ingraham, and Cech.
¶24 In Unmack-a medical malpractice case-we determined inadmissible impeachment evidence concerning the legal negligence of an expert medical witness who was both a doctor and a lawyer required a new trial. Unmack, ¶ 17. In Ingraham, we held that the trial court erred in admitting evidence of drugs found in both the criminal defendant’s blood and his urine when there was no evidence that the drugs had impaired his driving. Ingraham, ¶ 51. In Unmack and Ingraham, the disputed evidence was not relevant. See Unmack, ¶ 14; Ingraham, ¶ 46. As discussed above, that is not the case here. Both parties presented evidence about the IP process, and the testimony regarding the line on the pavement was relevant to a limit on QLC’s ability to monitor A.M.
¶25 Cech was a negligence case against the State of Montana by plaintiffs whose vehicle had skidded and crashed on a Montana highway. We reversed a jury verdict for the plaintiffs because the district court had admitted evidence of subsequent remedial measures undertaken by the state. Cech, 183 Mont. at 82, 598 P.2d at 588. Unlike Cech, there is no issue concerning subsequent remedial measures in this case.
¶26 On the record before us, we hold the District Court did not manifestly abuse its discretion in denying the Papiches’ motion for a new trial.
ISSUE TWO
¶27 Does sufficient evidence support the jury’s finding that QLC was not negligent?
¶28 The Papiches urge that evidence of QLC’s negligence was overwhelming and undisputed. They contend the evidence does not support the jury’s verdict in QLC’s favor.
¶29 A jury’s verdict which is challenged as not supported by the evidence may be overturned only in the complete absence of any credible evidence to support the verdict. All evidence and all inferences drawn from the evidence must be considered in a light most favorable to the advei'se party and, if conflicting evidence exists, the credibility and weight given to the evidence is within the province of the jury and will not be disturbed unless the jury’s findings are inherently impossible to believe. Campbell v. Canty, 1998 MT 278, ¶ 19, 291 Mont. 398, ¶ 19, 969 P.2d 268, ¶ 19 (citations omitted).
¶30 The Papiches contend QLC chief executive Trott admitted QLC’s negligence when he testified he believed A.M. had the right to make any and all decisions for himself, including decisions about his health care. We disagree.
¶31 A judicial admission is an express waiver made in court by a party or his attorney conceding the truth of an alleged fact. For a judicial admission to be binding, it must be an unequivocal statement of fact and not the expression of an opinion or a legal conclusion. DeMars v. Carlstrom (1997), 285 Mont. 334, 337, 948 P.2d 246, 248-49 (citations omitted). Our review of the record here indicates that, aside from being, at best, only indirectly related to the question of negligence by QLC, Trott’s statement of belief that A.M. had the right to make decisions for himself constituted the expression of an opinion, and not an admission of negligence. Furthermore, Trott later elaborated that A.M.’s IP team was the appropriate forum for discussion of whether to seek a referral for medication to control A.M.’s behavior.
¶32 According to the Papiches, QLC negligently failed to provide A.M. with therapeutic levels of Depakote, a behavioral medication. Dr. Mendenhall had first prescribed 500 milligrams of Depakote per day for A.M. in October of 1997, about a month before A.M. punched Stevan Papich. He increased the dosage to 1000 milligrams per day in January of 1998. Dr. Mendenhall also testified he was shown reports concerning incidents involving A.M. in 1996-before he began treating A.M.-and that if he had been treating A.M. at that time, he would have prescribed behavioral medication. The Papiches also cite Dr. Hornby’s testimony that he had continued the Depakote at the higher dose since he replaced Dr. Mendenhall as A.M.’s psychiatrist in November of 1998, approximately a year after the incident at issue.
¶33 Dr. Hornby also testified, however, that the Depakote did not-and could not be expected to-eliminate all of A.M.’s aggressive behaviors. He testified, “None of these medicines eliminate aggressive behavior. As human beings, under the right circumstances, any of us can become aggressive or out of control.” Thus, the testimony of Dr. Hornby undercuts the Papiches’ position that earlier and higher dosage administration of Depakote would have prevented A.M. from punching Stevan Papich, and supports the jury’s verdict.
¶34 Furthermore, in relation to their argument that QLC failed to provide A.M. with therapeutic levels of Depakote, the Papiches did not offer an instruction that QLC had a duty to medicate A.M. An argument that, despite the jury’s verdict, such a duty was somehow implicit in QLC’s duty of reasonable care invites re-weighing the evidence, which is outside the scope of our review. As stated above, a jury verdict may be overturned only in the complete absence of any credible evidence to support it. See Campbell, ¶ 19.
¶35 The District Court instructed the jury that QLC had a “duty to exercise reasonable care to prevent [A.M.] from doing bodily harm to other persons.” Substantial credible evidence supports the jury’s verdict that no breach of that duty occurred.
¶36 In addition to the evidence concerning behavioral medication, the jury received both testimonial and documentary evidence that, beginning two months before the incident at issue here, QLC employed a new behavioral modification program to decelerate A.M.’s aggressive behaviors, including hitting. The jury heard testimony from two persons familiar with A.M.-one employed by DPHHS and one employed by Easter Seal-to the effect that QLC took adequate steps to prevent the consumers it served, including A.M., from injuring third parties. Several witnesses testified that A.M. was not the most aggressive client served by QLC or Easter Seal, and that the staffs of both programs-including Stevan Papich-had protocols for dealing with aggression from clients, which was part of their jobs. QLC also presented evidence that it communicated information to others involved with its consumers through incident reports, daily logs, and a 24-hour call system.
¶37 Several witnesses, including Dr. Hornby, testified A.M. was not a suitable candidate for institutionalization, which was the only living situation suggested that would result in his being removed from the Easter Seal day program. Easter Seal employee Derenberger testified that everyone who worked with A.M. at Easter Seal was aware that A.M. could strike out; she also testified she could think of no failure by QLC to communicate concerning A.M. Wertz, the DPHHS quality assurance representative, testified she “[did] not have any issues with the way QLC did business” regarding A.M.
¶38 We conclude that, when viewed in the light most favorable to QLC, the record clearly includes sufficient credible evidence to support the jury’s finding that QLC was not negligent. Therefore, we hold the District Court did not abuse its discretion in denying the Papiches’ motion for new trial and an altered or amended judgment.
¶39 Affirmed.
JUSTICES NELSON, REGNIER, COTTER and LEAPHART concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶ 1 Glen Grover (Grover), a carpenter, sustained injuries when he fell from the roof of a house on which he was working. The house under construction was owned by Michael and Ruth Crenshaw (the Crenshaws). In addition to filing a workers’ compensation claim, Grover sued the Crenshaws and Cornerstone Construction for negligently failing to provide a safe workplace. Section 50-71-201, MCA. The Crenshaws and Cornerstone each filed a Motion in Limine requesting that Grover be prohibited from introducing safety standards established under the Occupational Safety and Health Act (OSHA or the Act). The Motions were granted. Grover and the Crenshaws subsequently settled. Following a jury trial and defense verdict for Cornerstone, Grover appeals, challenging the entry of the Order in Limine. We affirm.
ISSUE
¶2 The only issue before this Court is whether the District Court abused its discretion in granting Cornerstone’s Motion in Limine prohibiting Grover from introducing at trial OSHA safety standards as evidence of Cornerstone’s alleged negligence.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In the spring of 1996, the Crenshaws began planning their new home along Flathead Lake. After having plans drawn and obtaining the necessary building permits, they asked their brother-in-law, Stephen Tartaglino, who was married to Ruth Crenshaw’s sister, to act as “general contractor” over the project. The three of them entered into a written contract on May 29, 1996.
¶4 Tartaglino had worked in the construction industry for much of his adult life, but for a few years prior to this time, in addition to construction work, he also had worked as a licensed paramedic and emergency medical technician (EMT) in New England. Upon returning to Montana in August 1995, he was unable to secure an EMT/paramedic position in Kalispell, so he began working as a building contractor again. He was working for a contractor in Kalispell when the Crenshaws approached him about helping in the construction of their house.
¶5 Prior to beginning work on the Crenshaw home, Tartaglino established a sole proprietorship, Cornerstone Construction, N.W., and obtained the necessary licenses, insurance and bonding. In January 1997, a few months after the accident giving rise to this case, Tartaglino incorporated Cornerstone. Because Cornerstone was owned exclusively by Tartaglino at the time of Grover’s injury, we will use “Tartaglino” and “Cornerstone” interchangeably in this Opinion.
¶6 Tartaglino had only a few small tools when he began assisting the Crenshaws in July 1996, having left his large construction tools in New England. The Crenshaws provided various tools for use on the construction site and over the course of their home-building project, they purchased other needed tools and equipment which Tartaglino agreed to purchase from them.
¶7 Because Cornerstone had no employees, the Crenshaws contracted with Labor Contractors of Kalispell (Labor Contractors) to provide laborers for the building project. The Crenshaws prepaid Labor Contractors a substantial sum from which Labor Contractors would in turn pay the wages, taxes, and workers’ compensation premiums for the laborers it “loaned” to Crenshaws. Grover was employed as a carpenter by Labor Contractors and was one of the workers “loaned” to the Crenshaws. On September 3, 1996, Grover fell from the roof of the Crenshaw home and sustained injury.
¶8 In addition to filing a workers’ compensation claim, Grover filed suit against the Crenshaws and Cornerstone in July 1998, alleging that they negligently failed to provide a reasonably safe place to work. Section 50-71-201, MCA. Prior to the jury trial, the Crenshaws and Cornerstone filed Motions in Limine seeking to prohibit Grover from presenting the OSHA safety standards to the jury as evidence of the Crenshaws’ and Cornerstone’s negligence. The District Court granted the motions. Shortly thereafter, Grover and the Crenshaws settled their claims. At the conclusion of the trial, the jury returned a verdict in favor of Cornerstone.
¶9 Grover filed a timely notice of appeal. He asserts that the District Court erred in granting Cornerstone’s Motion in Limine. He asks that we set aside the jury verdict and order a new trial in which he would be allowed to introduce the OSHA safety standards.
STANDARD OF REVIEW
¶10 We review a district court’s grant or denial of a motion in limine for an abuse of discretion. State v. Brasda, 2003 MT 374, ¶ 14, 319 Mont. 146, ¶ 14, 82 P.3d 922, ¶ 14 (citation omitted). A district court abuses its discretion if the district court “acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting in substantial injustice.” Brasda, ¶ 14 (citation omitted). Furthermore, “[t]his Court will uphold the decision of a district court, if correct, regardless of the lower court’s reasoning in reaching its decision.” Hulse v. State, Dept. of Justice, 1998 MT 108, ¶ 15, 289 Mont. 1, ¶ 15, 961 P.2d 75, ¶ 15.
DISCUSSION
¶11 Grover maintains that, under OSHA, certain safety procedures and equipment were required in the construction of the Crenshaw home. He asserts that Cornerstone failed to provide the required safety equipment and that, as a result, he fell from the Crenshaw’s roof. He further maintains that he should have been able to present the OSHA safety guidelines to the jury in his effort to prove that Cornerstone was negligent in failing to provide an adequately safe work environment. Grover submits that while violations of the OSHA rules in the construction industry are not considered negligence per se, they are evidence of common law, or ordinary, negligence. He argues that because the jury was not allowed to consider the OSHA guidelines, a disproportionate amount of negligence was attributed to him, thus precluding his recovery at trial.
¶12 To support his position that the OSHA regulations applied to this construction project, Grover contends that Tartaglino was an experienced and knowledgeable commercial builder who was aware of the industry accepted safety standards. Grover maintains that Tartaglino undertook the construction of a residential home that was not his own, and thus was participating in a construction endeavor that was part of the construction industry as a whole.
¶13 In reaching its decision, the District Court applied the following two-part rule announced in Lynch v. Reed (1997), 284 Mont. 321, 944 P.2d 218:
1) A code or standard sought to be admitted for the purpose of “conclusively determining the standard of care imposed upon the defendant” must have been adopted by a governmental agency so as to have the force of law; and
2) Where a code or standard does not have the force of law, it may nevertheless be admitted as substantive evidence of negligence if it is coupled with a showing of general acceptance in the industry concerned.
Lynch, 284 Mont. at 328, 944 P.2d at 223. Applying this rule, the District Court pointed to the fact that Grover was employed by Labor Contractors, not Cornerstone. It therefore concluded that Tartaglino was not Grover’s “employer.” The court stated that OSHA does not impose obligations upon an owner where the worker in question is an independent contractor and not an employee of the owner. The court further concluded, under the second part of the Lynch test, that the Crenshaw construction project-a private residence construction project-was not the type of project that “fits within the scheme of the construction industry in general.”
¶14 We disagree with the District Court’s reasoning, but for the reasons set forth below, nonetheless affirm the District Court’s decision. Hulse, 1998 MT 108, ¶ 15, 289 Mont. 1, ¶ 15, 961 P.2d 75, ¶ 15. We conclude that, in order to determine whether the District Court abused its discretion in granting the Motion in Limine, we must analyze not who was the employer, but rather, who had control over the safety of the operations of the workplace.
¶15 In Shannon v. Howard S. Wright Const. Co. (1979), 181 Mont. 269, 593 P.2d 438, we affirmed the jury’s verdict finding that both the owner Big Sky and the general contractor Wright were liable under § 41-1710, RCM (1947) of the Montana Safety Act for the injuries sustained by the employee of a subcontractor, because Big Sky and Wright “took an active part in the decision-making which affected the [subcontractor’s] working conditions” and exercised “control over the means by which the subcontractor’s employees could reach their places of work on the upper levels of the condominiums.” Shannon, 189 Mont. at 277 and 79, 593 P.2d at 442 and 443. We concluded that “Big Sky not only retained the supervisory capacity ... but exercised that authority in a manner that directly affected the access of the subcontractor’s employees to the condominiums, thereby forcing them to climb ladders and crawl through a window casing. In Wright’s case, as general contractor, it had the authority to order temporary stairs and handrails built, but its project superintendent..., decided not to.... Thus the authority to create safe working conditions rested entirely with Big Sky and Wright.” Shannon, 181 Mont. at 281, 593 P.2d at 444-45.
¶16 Subsequently in Gibby v. Noranda Minerals Corp. (1995), 273 Mont. 420, 905 P.2d 126, we affirmed the jury’s verdict in favor of an injured worker and against the majority owner and manager of operations, Noranda, finding that Noranda expressly retained supervisory authority over the subcontractor’s employees and methods of operation, including employee safety. Gibby, 273 Mont. at 425, 905 P.2d at 129. We also noted that “[i]n addition to this contractual grant of authority,” evidence presented at trial showed that Noranda extensively exercised this authority on-site, clearly indicating that it was in “actual control” of the worksite. Gibby, 273 Mont. at 426, 905 P.2d at 130.
¶17 We conclude a similar analysis should be applied here. In resolving whether the District Court abused its discretion in precluding the admission of the OSHA regulations against Tartaglino, we will look to the evidence to determine the extent to which he was in actual control over safety and working conditions in the workplace.
¶18 It is apparent from the record that both Michael Crenshaw and Tartaglino exercised varying levels of control over the project. It would appear, however, that Tartaglino’s control over the worksite was much narrower than seen in Shannon or Gibby.
¶19 The substantive terms of Tartaglino’s contract with the Crenshaws were:
Steve Tartaglino will be the General Contractor and be paid an hourly wage of $25 per hour for those duties. He will be bonded insured and licensed in Montana as a General Contractor. Steve is committed to stay on the job at least until the roof is complete. Labor will be furnished by Labor Contractors.
Purchases and billings will be paid through Bachelor Sales Ltd. [the Crenshaws’ company].
¶20 Unlike the comprehensive contract in Gibby, Tartaglino’s contract did not address, or even mention, a project safety program, safety devices, safeguards or protective equipment. Therefore, Tartaglino did not expressly and contractually accept responsibility for safety on the site.
¶21 The Crenshaws designed the home and assumed responsibility for obtaining the necessary permits. During construction, Michael Crenshaw visited the site on an average of 2-3 days per week. On some visits he performed light carpentry tasks or cleaned up around the site. He constructed a ladder for the comfort and safety of the crew. He frequently observed crew members performing their jobs. Additionally, he provided some of the tools used by various crew members and purchased others during the course of the project. Both Crenshaw and Tartaglino fired workers during the project. Tartaglino terminated at least two workers based on the need to down-size the work crew. Crenshaw, however, assumed the responsibility for terminating a worker for cause.
¶22 From the record it appears that Tartaglino’s primary day-to-day function was to perform construction-just like Grover and the other laborers borrowed from Labor Contractors. Moreover, the record reveals that Tartaglino and Crenshaw selected experienced carpenters from Labor Contractors, all of whom had worked on multiple residential home constructions prior to this project. At the beginning of the project, Crenshaw and Tartaglino instructed the subcontractor’s employees to work safely and utilize any safety practices, procedures or equipment necessary to perform their given tasks. While Tartaglino had general oversight responsibilities designed to move the project forward to completion, unlike Big Sky, Wright Construction or Noranda, he did not exercise actual control over the subcontractor’s employees, nor did he dictate to them in any specific manner how they were to perform their jobs. Finally, nothing in the record indicates that Tartaglino either assumed or exercised “... the authority to create safe working conditions ...” Shannon, 181 Mont. at 281, 593 P.2d at 444.
¶23 In summary, under the specific facts of this case and given the law as set forth above, we cannot conclude that the District Court abused its discretion in precluding the admission of the OSHA safety standards as evidence against Tartaglino. We therefore affirm the District Court’s Order granting Cornerstone’s Motion in Limine.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and LEAPHART concur.
Subsequently re-numbered § 50-71-201, MCA (1978).
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] |
00-797 03/27/01 Denied
Original Proceeding Supervisory Control
|
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] |
00-504 02/22/01 Affirmed.
Dist. 3 (Deer Lodge)
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶ 1 Steven Summers (Summers) appeals from the order of the Fourth Judicial District Court granting American Bankers Insurance Company of Florida (American Bankers) proceeds that National Casualty Company (National) deposited with the court when it filed an interpleader action. American Bankers cross-appeals the order denying its motion for attorney fees. We affirm.
¶2 The following issues are presented on appeal:
¶3 1. Did the District Court err in concluding that American Bankers' “other insurance” clause was enforceable?
¶4 2. Did the District Court err in concluding § 33-24-102, MCA, has no application in the present case?
¶5 3. Did Summers preserve for appeal a pro rata reimbursement issue?
.¶6 4. Did the District Court abuse its discretion in denying American Bankers' motion for attorney fees?
Factual and Procedural Background
¶7 Summers owned a home in Missoula for which he purchased insurance in 1995 from American Bankers. In March of 1997, Summers' agent, acting on Summers' direction, obtained an insurance policy from National. Summers intended to replace rather than supplement, the American Bankers policy with the National policy; however, neither Summers nor his agent canceled the American Bankers policy or informed American Bankers of the policy with National. Summers continued to make premium payments for the American Bankers policy.
¶8 Both of the policies contained “other insurance” clauses. The American Bankers policy provided:
Other Insurance. If the insurance provided by this policy is also provided by other insurance, the coverage under this policy will terminate as of the effective date of the other insurance.
National's policy provided:
Other Insurance. If property covered by this policy is also covered by other fire insurance, we will pay only the proportion of a loss caused by any peril insured against under this policy that the limit of liability applying under this policy bears to the total amount of fire insurance covering the property.
¶9 In November, 1997, a fire destroyed Summers' house. Summers submitted a claim to American Bankers and received $80,000, which was the policy limit. American Bankers subsequently learned of Summers' policy with National. National filed an interpleader action in the District Court and deposited its policy limit of $77,000 with the clerk of court. Both American Bankers and Summers claimed entitlement to the deposited monies and filed cross-motions for summary judgment.
¶10 The District Court granted American Bankers' summary judgment motion and concluded that the “other insurance” clause in American Bankers' policy should be enforced and that Summers' policy with American Bankers therefore terminated when Summers obtained an insurance policy with National. The court also determined that § 33-24-102, MCA, which provides that the amount of insurance written in a policy “shall be taken conclusively to be the true value of the property insured,” could not be applied to two separate insurance policies as Summers advocated because the “specific language of the statute limits its application to recovery for property improvement losses under a single insurance policy.”
¶11 The court ordered that American Bankers was entitled to the $77,000 that National had interpled as well as the $3,000 difference in the two policy limits. The court ordered Summers to reimburse American Bankers for that difference less the $470.00 Summers paid American Bankers in premiums after obtaining the insurance policy with National. The court also denied American Bankers' motion for attorney fees, concluding in part that the common law equitable exception to the rule that parties are responsible for their own attorney fees did not apply as Summers' arguments were neither “frivolous nor malicious in nature.”
Discussion
¶12.1. Did the District Court err in concluding that American Bankers' “other insurance” clause was enforceable?
¶ 13 Our standard of review in appeals from summary judgment orders is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. We review a district court's summary judgment to determine whether it was correctly decided pursuant to Rule 56, M.R.Civ.P., which provides that summary judgment is only appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. In the case at hand, both parties moved for summary judgment, agreeing that there were no genuine issues of material fact. We are guided in our interpretation of insurance policies by the well-established principle that when the language of a policy is clear and explicit, the policy should be enforced as written. Nat'l Farmers Union Property & Cas. v. George, 1998 MT 205, ¶ 12, 290 Mont. 386, ¶ 12, 963 P.2d 1259, ¶ 12.
¶14 Relying on the public policy enunciated in automobile insurance cases, Summers claims that American Bankers' “other insurance” clause is void as a matter of public policy. See Bennett v. State Farm Mut. Auto. Ins. (1993), 261 Mont. 386, 390, 862 P.2d 1146, 1149. Summers argues that American Bankers should not now be allowed to avoid liability under a policy for which it accepted premium payments.
¶15 American Bankers responds that the public policy that victims shall receive adequate compensation does not prevent enforcement of “other insurance” clauses. American Bankers argues that Summers has already been fully compensated and that public policy precludes Summers from profiting by receiving a double recovery for his property loss. Citing the rule that when clear, an insurance policy should be enforced, American Bankers asks the Court to affirm the District Court's decision. Summers does not argue that the policy is ambiguous but again emphasizes that public policy demands that insurance companies not escape liability under insurance policies for which they have accepted premium payments.
¶16 Our decisions allowing the stacking of multiple insurance policies in automobile insurance cases were predicated on the public policy that victims should be compensated for their losses. We have held that multiple uninsured and underinsured motorists policies should be stacked when an insured who is named in multiple policies has proven damages that exceed the limits of an individual policy. Bennett, 261 Mont. at 390, 862 P.2d at 1149. Our decisions do not support providing a windfall to an insured who has suffered a property loss and has been fully compensated for that loss under his insurance policy.
¶17 Summers has not claimed that if he were limited to recovery from one policy, he would not be adequately compensated. He merely states that nothing in the record indicates the value of the property, and therefore there is nothing in evidence to prove he would actually profit from receiving payments from both insurance companies. The public policy enunciated in Bennett does not apply in the present case as Summers has not even suggested that his loss exceeds the limits of his policy with National. The fact that Summers intended to have a single policy insuring his house for $77,000 indicates that he has already been fully compensated for his property loss.
¶18 The language of American Bankers' insurance policy is clear and explicit, and this Court finds no public policy reason to avoid its provisions. Although some authorities suggest that escape clauses may be considered unconscionable when “though there was technically other collectible insurance, enforcement of the clause would result in the insured losing all coverage,” the present case is not such a situation. Couch on Insurance 3d, § 219:37 (1999). American Bankers has done precisely what we recommended in Musselman, when we advised, “we believe that insurance companies are in a better position to draft policies to prevent” situations which provide an insured with a profit. Musselman v. Mountain West Farm Bureau Mut. Ins. (1992), 251 Mont. 262, 268, 824 P.2d 271, 275. We affirm the District Court ruling that the contract be enforced as written, and that, as written, its “other insurance” clause terminated the policy at the time Summers procured an insurance policy with National protecting the same property.
¶19 2. Did the District Court err in concluding § 33-24-102, MCA, has no application in the present case?
¶20 Section 33-24-102, MCA, provides:
Insuring improvements - insurance equal to true value.
Whenever any policy of insurance shall be written to insure any improvements upon real property in this state against loss or damage and the property insured is considered to be a total loss, without criminal fault on the part of the insured or his assigns, the amount of insurance written in such policy shall be taken conclusively to be the true value of the property insured and the true amount of loss and measure of damages.
¶21 Summers argues that this “value stated” statute applies in the present case and that it requires that he receive the sum of the two policies he inadvertently maintained. Summers contends that since the “actual or appraised value of the property has never been ascertained and could possibly be in excess of the coverage of the two policies,” the total coverage of both policies should be taken conclusively to be the true value of the property.
¶22 In Issue 1, we affirmed the District Court holding that Summers' policy with American Bankers terminated when he obtained his policy with National and we therefore need not address this issue. According to our holding in Issue 1, Summers only had one policy in effect at the time of the fire. Summers has already received the full amount of that coverage and consequently the application of § 33-24-102, MCA, would have no effect on the present case.
¶23 3. Did Summers preserve for appeal a pro rata distribution issue?
¶24 Summers admits he did not raise the issue of pro rata distribution in the District Court, but argues that the issue nonetheless was squarely before the court. Summers argues that the issue was raised when National asked the court to “determine the right, if any, of each Defendant to share in the interpleaded sum and the amount of such share,” and therefore requests this Court to prorate the loss between the two insurance companies. Summers further contends that American Bankers would be unjustly enriched if it were to receive the entire amount interpled by National, and that National should receive none of the funds as returning the money to National “would be to reward that company's lack of diligence.” Consequently, Summers concludes that “fairness, if nothing else, would dictate that the balance be released to the Appellant.”
¶25 Summers did not raise the issue of pro rata distribution at the District Court and we will not review a lower court's actions (or inaction) on an issue it was not given the opportunity to consider. Day v. Payne (1996), 280 Mont. 273, 277, 929 P.2d 864, 866. Furthermore, Summers has already received full payment on his single valid insurance policy, and pro rata distribution between National and American Bankers could have no effect on his award. Summers therefore has no interest in and no standing to argüe for pro rata distribution between the two insurance companies.
¶26 4. Did the District Court abuse its discretion in denying American Bankers' motion for attorney fees?
¶27 A district court's grant or denial of attorney fees is a discretionary ruling which we review for abuse of discretion. Braach v. Graybeal, 1999 MT 234, ¶ 6, 296 Mont. 138, ¶ 6, 988 P.2d 761, ¶ 6. However, a district court's underlying determination that legal authority exists for an award of attorney fees is a conclusion of law which we review to determine whether the court interpreted the law correctly. Braach, ¶ 6. The general rule in Montana is that absent a statutory or contractual provision, attorney fees are not recoverable. Kennedy v. Dawson, 1999 MT 265, ¶ 52, 296 Mont. 430, ¶ 52, 989 P.2d 390, ¶ 52.
¶28 This Court has recognized an equitable exception to the general rule regarding attorney fees. In Braach, we clarified that:
[A] court, under its equity powers, may award attorney fees to make an injured party whole. Foy v. Anderson (1978), 176 Mont. 507, 511-12, 580 P.2d 114, 116-17. Such awards are to be determined on a case-by-case basis. Foy, 176 Mont. at 511, 580 P.2d at 117. In subsequent cases addressing the Foy “equitable” exception, however, we have expressly limited its applicability to situations where a party has been forced to defend against a wholly frivolous or malicious action. See, e.g., Youderian Const., Inc. v. Hall (1997), 285 Mont. 1, 15, 945 P.2d 909, 917; Newman v. Wittmer (1996), 277 Mont. 1, 12, 917 P.2d 926, 933; Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 429-30, 913 P.2d 641, 651; Holmstrom Land Co. v. Hunter (1979), 182 Mont. 43, 48-49, 595 P.2d 360, 363.
Braach, ¶ 9.
¶29 American Bankers asks this Court to adopt an expanded interpleader exception which allows for an award of attorney fees if a party makes a “false claim.” American Bankers contends that “[t]his case presents the perfect example of why this Court should recognize or apply such an exception. American Bankers is innocent of any wrongdoing ... [and Summers] made what should be viewed as a false claim ....”
¶30 In its attempt to encourage us to adopt a new rule, American Bankers summarily states that it is innocent and that Summers' claim was false. American Bankers clarifies neither what constitutes a “false claim,” nor why Summers' claim should be considered “false” and provides little analysis to convince this Court that Montana should adopt a new interpleader rule. We decline to adopt an interpleader exception which would allow the award of attorney fees when a “false” claim is made.
¶31 Finally, awarding attorney fees is a discretionary act. American Bankers has presented no argument and this Court sees no evidence that the District Court abused its discretion in expressly declining to apply either the equitable exception or a proposed interpleader exception in its denial of American Bankers' motion for attorney fees. Even if we were to adopt an exception, the awarding of attorney fees would continue to be discretionary. Reversal of a discretionary action by a district court requires proof of abuse of discretion. Braach, ¶ 6. American Bankers has presented no such proof of abuse in this case.
¶32 The District Court correctly interpreted the law in Montana when it determined that because-Summers' claim was neither frivolous nor malicious, it would not award attorney fees to American Bankers. We therefore affirm the District Court's denial of American Bankers' motion for attorney fees.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and TRIEWEILER concur.
|
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] |
01-080 03/27/01 Denied
Original Proceeding Habeas Corpus
|
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] |
JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 John Conover, Jr., and Alan C. Conover appeal from the Findings and Order issued by the Fifth Judicial District Court, Beaverhead County, granting summary judgment in favor of Roger E. Earl. We affirm.
¶2 The Conovers raise the following issues on appeal:
¶3 1. Did the District Court err in determining that the Conovers’ lease to the Tom Sweet Ranch was properly terminated?
¶4 2. Did the District Court err in failing to address the Conovers' contention that letters written by Viola C. Earl constituted a holographic will?
BACKGROUND
¶5 On August 28,1980, Viola C. Earl entered into a lease agreement with Russell S. Earl, her husband, and the Conovers concerning real property known as the Tom Sweet Ranch. Russell Earl is now deceased. The term of the lease was 99 years. The lease also provided that, upon expiration of the lease term, the lease would be extended under the same conditions to any members of the Conover family. The agreement also provided that “[i]n case of need this lease is subject to recall on demand by Viola C. Earl only.”
¶6 In a letter dated November 2, 1998, Roger Earl, the stepson of Viola Earl, notified the Conovers that he was terminating the lease agreement. Roger stated that Viola was in a nursing home, that she did not have the assets to bear her expenses, and that in order to qualify for federal benefits she needed to liquidate her property. Roger had been appointed Viola's guardian and conservator on May 19,1998. In a letter dated November 30, 1998, the Conovers informed Roger that they were rejecting his notice of termination. The Conovers contended that the Tom Sweet Ranch had been conveyed to them in fee.
¶7 On January 26,1999, Roger filed a complaint requesting that the District Court declare the lease agreement.properly terminated and issue a judgment quieting title to the ranch. On March 22, 1999, the Conovers filed an answer and counterclaim contending that Viola, by various documents and correspondence, had leased and gifted to them all of her interest in the Tom Sweet Ranch. The documents and correspondence the Conovers were referringto included, among others, a letter from Viola dated December 1984, in which she stated, in relevant part, the following:
At the end of this Age the whole world will return to Divine Law. We don't know where the Heavenly Father and His Son will put each of us. It may be far from where we now are. So we can not make arrangements for anything past the end of this Age.
It has been, and still is, my intention that you, John and Alan, are to have the use of the ranch as long as this Age lasts. If we ever come back there we will need only our camper, as it is compact and convenient, and self contained.
The house and other buildings are to be for your use, so you do what you wish with the house.
Let's not raise the lease until it seems necessary, and you use anything there that will help you out....
Since we don't plan to be there any more, and with expenses going up all the time here, too, I can't help much with expenses there. But it is fine if you wish to fix it for your use. According to Divine Law all land belongs to our Great Creator, and our homes and his land are not taxable. So I will never sell it from you. As far as it is in my power it is for you folks to use till the end of this Age. According to the lease no one outside your family is ever to be there using the land or the buildings. It is for your use only.
I hope this is satisfactory with you.
-Viola C. Earl (signed)
P.S. Keep this letter filed with your lease.
¶8 Roger filed a Motion for Declaratory Judgment and/or Summary Judgment on July 9, 1999. The District Court held a hearing on the motion on March 2, 2000. On March 17, 2000, the District Court concluded that Roger was entitled to a declaratory judgment terminating the lease and a judgment quieting title to the property as against the Conovers subject to their right of first refusal. The Conovers filed a motion to amend contending that the court must hold a trial to resolve the effect Viola's letters had on the original lease. The District Court denied the Conovers' motion and issued its Judgment. The Conovers appeal.
STANDARD OF REVIEW
¶9 We review a district court order granting summary judgment de novo applying the same evaluation as the district court pursuant to Rule 56, M.R.Civ.P. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set forth our inquiry.
The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.
Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).
ISSUE ONE
¶10 Did the District Court err in determining that the Conovers' lease was properly terminated?
¶11 In a brief supporting his motion for summary judgment, Roger contended that the lease provided for a right of termination upon need; that need was shown based on Viola's nursing home expenses; and that notice of termination was properly given. The Conovers responded that statements made by Viola in her December 1984 letter to them, set out in relevant part above, raised material issues of fact with regard to whether Viola gifted the ranch to the Conovers or whether she amended the lease and specifically relinquished her right of termination. The District Court concluded that Roger was entitled to a judgment terminating the lease based on need.
¶12 On appeal, the Conovers contend that Viola's letters amended the termination provision of the original lease agreement because they make clear her intention that the Conovers should have the ranch. Roger contends that Viola's letter does not modify the lease. Roger notes that the letter reaffirms the existence of the lease by referring to the agreement between the parties as a lease and discussing the Conovers' “use” of the property. Roger also states that the lease was already “in a sense, a lease in perpetuity because it allows for renewal at the end of the ninety-nine year period so long as the property stays in the Conover family.” Roger insists that nothing in Viola's letters purports to modify the right of termination in case of need or manifests an intent to gift the ranch to the Conovers.
¶13 The Conovers appear to be contending that the letter is either evidence that Viola intended to give them the ranch or evidence that Viola intended to amend the lease to relinquish her right of termination based on need. We will address each contention separately. In doing so, we are mindful that in a summary judgment proceeding “[a]ll reasonable inferences which may be drawn from the offered proof must be drawn in favor of the party opposing summary judgment.” Johnson v. Barrett, 1999 MT 594, ¶ 8, 295 Mont. 254, ¶ 8, 983 P.2d 925, ¶ 8.
¶14 The Conovers' argument that Viola's 1984 letter is evidence that she intended to terminate the lease and give them the ranch is specious. The Conovers rely on Viola's statement in her December 1984 letter that “[i]t has been, and still is, my intention that you, John and Alan, are to have the use of the ranch as long as this Age lasts.” However, as Roger notes, the lease already allowed the Conovers to renew on the same conditions upon expiration of the lease term. Thus, granting the Conovers use of the ranch for “as long as this Age lasts” does not indicate that Viola intended to give them the ranch. More importantly, as the District Court observed, Viola consistently used the term “use” throughout the letter and she also repeatedly reaffirmed the continued existence of the lease by stating, among other things, that, “[ajccording to the lease no one outside of your family is ever to be there using the land or the buildings.” Lastly, we note that John Conover claimed, in an affidavit opposing summary judgment, that Viola's letter constituted a gift “subject to [the Conovers] paying a lease payment for 99 years.” We have previously stated that “[t]o be a gift, a transfer of property must be irrevocable, complete, without adequate consideration or full consideration, and unmistakably intended to divest the donor of the title, dominion and control over the property.” Estate of Parini v. Montana Dept. of Revenue (1996), 279 Mont. 85, 92, 926 P.2d 741, 745. Granting the Conovers the use of the ranch subject to a “lease payment for 99 years” is simply a lease, nothing more.
¶15 Alternatively, the Conovers contend that, on the basis of her December 1984 letter, Viola intended to amend or modify the original lease to relinquish her right of termination. Conovers rely on the following statement from Viola's December 1984 letter: “So I will never sell it from you. As far as it is in my power it is for you to use till the end of this Age.”
¶16 The only reasonable inference we can draw in favor of the Conovers from Viola's 1984 letter is that at the time she wrote the letter she had a present intent not to exercise her right of termination in the future. In order for Viola's 1984 written letter to be a- valid modification of the lease, however, it must be a contract supported by sufficient consideration. See §§ 28-2-102 and -1602, MCA (providing that a contract in writing may only be altered by a contract in writing or by an executed oral agreement). A mere statement of present intent to perform or not perform an act in the future is not a contract. What the Conovers had from Viola Earl, if anything, was simply a gratuitous promise. Such a promise cannot be enforced at all. See Boise Cascade Corp. v. First Sec. Bank of Anaconda (1979), 183 Mont. 378, 391, 600 P.2d 173, 181.
ISSUE TWO
¶17 Did the District Court err in failing to address the Conovers' contention that letters written by Viola Earl constituted a holographic will?
¶18 As Roger correctly observes, whether letters written by Viola Earl constitute a holographic will is not at issue in this dispute. Viola passed away after the court had already issued its order granting summary judgment in Roger's favor. The issue of this case is whether the lease agreement was properly terminated, not whether Viola Earl's estate was properly distributed.
¶19 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, NELSON and TRIEWEILER concur
|
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On April 6, 2000, the Defendant was sentenced to four (4) years in the Montana State Prison.
On August 25, 2000, the Defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The Defendant was present and was represented by.Jeremy Gersovitz. The state was not represented.
The Defendant havingbeen duly informed ofthe amendedjudgment and commitment, and having not waived his right to appear before the undersigned for this pronouncement of sentence, whereupon,
IT IS ORDERED, ADJUDGED AND DECREED that the sentence is amended to a five (5) year commitment to the Department of Corrections. The Board recommends that the defendant be considered for the Treasure State Correctional Training Center, followed by the Connections Corrections Program in Butte, Montana.
Hon. Marc Buyske, District Court Judge
|
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Ronald Wooster (Wooster) appeals from the Second Judicial District Court’s finding that he suffers from a mental disease or defect and its order denying his petition for release from the Montana State Hospital. We affirm the finding and order of the District Court.
¶2 In 1978, Wooster confessed to the murders of his two-and-a-half-year-old daughter Stacy and his six-year-old daughter Kelly. He was acquitted of the deliberate homicide charges stemming from those deaths when the District Court concluded that Wooster suffered from a mental disease or defect which rendered him incapable of appreciating the criminality of his conduct or conforming it to the requirements of the law. Following acquittal, the District Court remanded Wooster to the permanent custody of the Montana State Hospital (MSH) subject to his right to future hearings regarding his mental condition.
¶3 Wooster petitioned for release in 1994. After taking testimony and reviewing the reports of examining experts, the District Court found that Wooster suffered from the mental disease or defect of “antisocial personality disorder.” Concluding that he would pose an unreasonable threat to himself or others if released, the District Court denied Wooster’s petition for release. Wooster appealed, claiming that antisocial personality disorder is not a mental disease or defect under the relevant statutory provision, § 46-14-101, MCA. State v. Wooster, 1999 MT 22, ¶ 21, 293 Mont. 195, ¶ 21, 974 P.2d 640, ¶ 21 (Wooster I).
¶4 In Wooster I, this Court determined that the definition of “mental disease or defect” was ambiguous and adopted an additional affirmative definition of mental disease or defect. After disposing of all other issues, we remanded for consideration of Wooster’s petition under this definition. Wooster I, ¶ 44. On remand, the District Court directed Dr. William Stratford, a consulting forensic psychiatrist, and Dr. Susan Sachsenmaier, staff psychologist at MSH, to evaluate Wooster and determine whether he suffered from a mental disease or defect as defined in Wooster I. Based on their findings, the District Court concluded that Wooster presently suffers from a mental disease or defect and denied his petition for discharge or release from MSH. Wooster appeals from the District Court’s findings and order, raising the following issues:
¶5 1. Did the District Court err when it determined that Wooster suffers from a mental disease or defect?
¶6 2. Did the District Court err by failing to consider alternatives to secure confinement and make specific findings regarding Wooster’s treatment?
DISCUSSION
¶7 We review a District Court’s finding of mental disease or defect under the clearly erroneous standard. Wooster I, ¶ 33; State v. Woods (1997), 285 Mont. 46, 53, 945 P.2d 918, 922. 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 a review of the record leaves this Court with a definite and firm conviction that a mistake has been committed. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.
¶8 1. Did the District Court err when it determined that Wooster suffers from a mental disease or defect?
¶9 In Wooster I, we held that mental disease or defect means “an affliction with a mental disease or mental condition that is manifested by a disorder or disturbance in behavior, feeling, thinking, or judgment to such an extent that the person afflicted requires care, treatment, and rehabilitation.” Wooster I, ¶ 43. This affirmative definition complements but does not alter the negative definition in § 46-14-101, MCA, which excludes from the definition of mental disease or defect any “abnormality manifested only by repeated criminal or other antisocial behavior.” Wooster I, ¶ 43.
¶10 On remand, the District Court directed Drs. Stratford and Sachsenmaier to determine whether Wooster suffered from a mental disease or defect as defined in Wooster I. Each reviewed existing files, conducted a psychological evaluation of Wooster and filed a report with the District Court. Dr. Stratford concluded that Wooster suffers from antisocial personality disorder with borderline and paranoid features. He stated his professional opinion that Wooster continues to suffer from a “serious mental condition manifested by disorders in behavior, feeling, thinking and judgment to the extent that he requires care, treatment and rehabilitation.” He strongly recommended against any conditional or unconditional release .Dr. Sachsenmaier concluded that, although he showed little or no behavioral evidence of an active antisocial personality disorder, Wooster retains that diagnosis and meets the criteria for possessing a mental disease or defect under the Wooster I standard. Dr. Sachsenmaier’s report did not contain any specific recommendation on release or treatment. Based on these conclusions and recommendations, the District Court concluded that Wooster suffers from a mental disease or defect and denied his petition for release.
¶11 Wooster does not dispute Drs. Stratford and Sachsenmaier’s conclusions that he suffers from a mental disease or defect under the affirmative definition set out in Wooster I. Rather, he continues to assert that his particular mental illness-antisocial personality disorder-is specifically excluded by § 46-14-101, MCA. However, this argument was rejected when this Court considered Wooster’s original appeal.
¶12 In Wooster I, we concluded that “a person with antisocial personality disorder has a condition that is manifest by much more than ‘only ... repeated criminal or other antisocial behavior’ and that this condition is not excluded by § 46-14-101, MCA.” Wooster I, ¶ 37. Under the doctrine of the law of the case, a prior decision of this Court resolving a particular issue between the same parties in the same case is binding and cannot be relitigated. State v. Woods (1997), 285 Mont. 46, 52, 945 P.2d 918, 921 (citing State v. Black (1990), 245 Mont. 39, 44, 798 P.2d 530, 533).
¶13 The District Court’s determination that Wooster suffered from a mental disease or defect was supported by substantial evidence in the form of extensive evaluation and comprehensive reports from Drs. Stratford and Sachsenmaier. Each concluded that Wooster suffered from mental disease or defect as those terms were defined by this Court in Wooster I. The District Court appropriately relied on the doctors’ conclusions when making its finding. Furthermore, under our holding in Wooster I, Wooster’s antisocial personality disorder is not excluded by the negative definition of § 46-14-101, MCA. We conclude, therefore, that the District Court’s finding that Wooster continues to suffer from a mental disease or defect was based on substantial credible evidence and was not clearly erroneous.
¶14 Did the District.Court err by failing to consider alternatives to secure confinement and make specific findings regarding Wooster’s treatment?
¶15 Wooster argues that the District Court failed to consider conditional release as an alternative to secure commitment and failed to make specific findings regarding treatment benefits from continued commitment to the MSH. He points to no statutory authority requiring these findings but claims, instead, that they are required to protect the due process rights of individuals committed under a diagnosis of antisocial personality disorder. Wooster contends that, absent specific findings related to both treatment and supervision alternatives, secure confinement of an individual with antisocial personality disorder is tantamount to punishment for criminal behavior without the process and safeguards normally afforded criminal defendants. Without addressing the due process argument, we note that the record does not support Wooster’s claims that the District Court failed to consider these issues or make appropriate findings.
¶16 There is no evidence in the record to support a finding that supervision alternatives such as conditional release are appropriate for Wooster. Prior to his first appeal, the District Court asked Drs. Stratford and Sachsenmaier to propose and prepare a conditional release plan. Despite contributing to the report at the District Court’s request, Dr. Stratford did not support Wooster’s conditional release. Dr. Sachsenmaier only supported conditional release if and when Wooster completed additional sex offender and chemical dependency treatment.
¶17 In their final reports to the District Court following remand, neither Dr. Stratford nor Dr. Sachsenmaier recommended conditional release. Dr. Stratford expressly disapproved of such a plan, stating:
While other professionals may evaluate him and may see this differently, I very strongly do not believe that he is re.ady for any conditional or unconditional discharge off the Warm Springs State Hospital campus.... The only thing which might be of benefit and be a little progressive is that I am told the State Hospital is developing a independent living situation on the campus with security and strong levels of supervision. If they finish this, as I am told they will in the next month, Mr. Wooster may be considered as a potential candidate for a campus only living arrangement with no outside or off hospital working, living or socialization.
Wooster presented the District Court with no evidence to support a finding that he would be suitable for a conditional release. His claim that the District Court failed to consider a lesser level of confinement is not supported by the record.
¶18 To the extent that the District Court did not make a specific finding regarding appropriate supervision alternatives, they are implicit. This Court has adopted the doctrine of implied findings for purposes of reviewing findings of fact. Interstate Brands Corp. v. Cannon (1985), 218 Mont. 380, 384, 708 P.2d 573, 576. That doctrine provides that where “findings are general in terms, any findings not specifically made, but necessary to the [determination], are deemed to have been implied, if supported by the evidence.” Interstate Brands, 218 Mont. at 384, 708 P.2d at 576. Here, the record clearly supports the finding that continued secure commitment was appropriate.
¶19 Wooster also argues that due process requires the District Court to make a specific finding that Wooster will receive effective treatment. He contends that, without such a finding, continued confinement at MSH is nothing more than punishment for past crimes, imposed under the “clear and convincing evidence” standard of civil commitment rather than the “beyond a reasonable doubt” standard required for a criminal conviction.
¶20 It is unnecessary to address the merits of this argument because there is no factual basis for Wooster’s contention that the Court failed to make a relevant finding. The District Court stated in its conclusions of law that:
The Defendant’s mental disease or defect poses an unreasonable and foreseeable risk of danger to himself or others if he is released or discharged from Montana State Hospital at this time. Accordingly, continued commitment of the Defendant is necessary under the circumstances to protect the Defendant and the public and to provide effective care, treatment and rehabilitation to the Defendant. [Emphasis added.]
While, the District Court did not set out a specific treatment plan, it did make a finding that the purpose of Wooster’s continuing commitment was for treatment, care and rehabilitation.
¶21 Finally, we note that Wooster’s due process arguments depend on a false premise: that there exists a direct link between the District Court’s finding of mental disease or defect and Wooster’s past criminal acts. Wooster’s argument assumes that the finding of mental disease or defect was based solely on his diagnosis of antisocial personality disorder and, in turn, that the diagnosis of antisocial personality disorder was based solely on Wooster’s past criminal activity. Neither of these assumptions are supported by the record.
¶22 First, the District Court’s finding that Wooster suffers from a mental disease or defect was not based strictly on his diagnosis of antisocial personality disorder. Rather, it was based on the conclusion of two mental health experts that Wooster suffers from a “mental condition manifested by disorders in his behavior, thinking or judgment to the extent that he requires care, treatment, rehabilitation and a secure structured environment.” While antisocial personality disorder may be the primary condition which, in Wooster’s case, gives rise to “disorders in his behaviors, thinking or judgment,” the finding of mental disease or defect is also based on Drs. Sachsenmaier and Stratford’s conclusions that those disorders are of the type that “require care, treatment and rehabilitation.” Both made specific conclusions and recommendations to that effect.
¶23 Second, Wooster’s diagnosis of antisocial personality disorder was not based on his history of past criminal activity. Rather, it was based on extensive psychological testing and evaluation. Both Dr. Stratford and Dr. Sachsenmaier thoroughly reviewed Wooster’s hospital records, past test results, conducted clinical interviews and administered and evaluated a new battery of psychological tests. The record indicates that their diagnoses were based on the results of their current psychological testing and clinical evaluation, not Wooster’s past criminal acts.
¶24 Wooster made no showing that the District Court’s findings were not supported by substantial credible evidence. Further, we' cannot say that the District Court misapprehended the effect of the evidence, or that a review of the record has left this Court with a definite and firm conviction that a mistake has been committed. Therefore, we must conclude that the District Court’s findings were not clearly erroneous.
¶25 We affirm the District Court’s order denying Wooster’s petition for release.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and TRIEWEILER concur.
|
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On April 10, 1997, the defendant was sentenced to a ten (10) year commitment to the Department of Corrections, with five (5) years ■suspended. This sentence shall run concurrently to the sentence imposed in ADC-97-24.
On April 14, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Peter Bovingdon. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.
Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive."
The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. Robert Boyd.
|
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] |
On July 17, 2000, the defendant was sentenced to the following: Count I: Six (6) year commitment to the Department of Corrections, with three (3) years suspended; Count II: Six (6) months in the Valley County Jail, all suspended, to run concurrently with the sentence in Count I; Count V: Two (2) year deferred imposition of sentence, to run consecutively to the sentences in Counts I and II; Count VI: Six (6) months in the Valley County Jail, all suspended, to run concurrently with the sentences in Counts I and II.
On November 2,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present, however, his court appointed counsel failed to appear at the hearing. The defendant was advised of his right to be represented by counsel. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he did not wish to proceed at this time.
It is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be continued to the first meeting of the Sentence Review Board, at the Montana State Prison, in 2001, thus allowing the defendant an opportunity to consult with his district court appointed counsel, Tony C. Koenig.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Bozeman City Judge Patricia Carlson (Carlson) brought this action to void portions of Bozeman Municipal Ordinance No. 1490 (BMO) which prohibit outside employment by the municipal court judge, and place the municipal court clerk under the supervision of the city finance department. Carlson also sought an award of attorney fees. Both parties moved for summary judgment. The Eighteenth Judicial District Court, Gallatin County, declared the two contested provisions of the BMO invalid, but dismissed Carlson’s request for fees. Carlson appeals from the dismissal of her attorney fees claim, and the City of Bozeman (City) cross-appeals from the orders declaring portions of the BMO invalid. We affirm in part and reverse in part and remand for further proceedings.
¶2 The parties raise three issues on appeal:
1. Did the District Court correctly declare invalid the portion of BMO § 2.06.050 prohibiting outside employment for a municipal judge?
2. Did the District Court correctly declare invalid the portion of BMO § 2.06.030 placing the clerk of the municipal court under the supervision of the department of finance?
3. Did the District Court correctly dismiss Carlson’s claim for attorney fees?
FACTUAL BACKGROUND
¶3 On April 19, 1999, the Bozeman City Commission adopted BMO which created a municipal court in the place of the pre-existing city court. At that time, Carlson was the Bozeman City Court Judge and the only candidate on the ballot for election as the new municipal court judge. She currently is the Bozeman Municipal Court Judge.
¶4 On July 15,1999, Carlson brought this action against City seeking to void portions of two sections of BMO: the portion of § 2.06.050 which prohibited the municipal court judge from obtaining outside employment; and the portion of § 2.06.030 which placed the clerk of the municipal court under the supervision and control of the City’s finance director instead of the municipal court judge (Complaint, Count I). Carlson also sought injunctive relief against the enforcement of these portions of BMO (Count II), a writ of mandamus requiring the city to repeal these portions of BMO (Count III), and her attorney fees (Count IV).
¶5 Both parties filed a flurry of motions and briefs. On December 22, 1999, the District Court issued an order ruling on various motions. This order dismissed Carlson’s claim for attorney fees, granted Carlson’s motion for summary judgment on the validity of that portion of BMO § 2.06.050 prohibiting outside employment, and set a hearing on the validity of that portion of BMO § 2.06.030 placing the municipal court clerk under the control of the finance department. The District Court also explained that it was basing its ruling upon the parties’ cross-motions for summary judgment and supporting briefs.
¶6 On January 6,2000, the District Court held a hearing on the issue of control over the municipal court clerk. On March 8, 2000, the District Court issued an order granting Carlson’s motion for summary judgment invalidating that portion of BMO § 2.06.030 placing the municipal court clerk under the control of the finance department. Carlson then filed a request for clarification regarding her claim for attorney fees. On March 23, 2000, the District Court issued an order clarifying that its December 22, 1999 order was intended to foreclose Carlson from recovering attorney fees on any issue in this case.
¶7 Carlson now appeals to this Court from the District Court’s dismissal of her attorney fee claim. City cross-appeals from the District Court’s order of summary judgment declaring both BMO provisions at issue invalid.
STANDARD OF REVIEW
¶8 We must first determine the appropriate standard of review to apply to the three issues raised. Both Carlson and City agree that the issue of the validity of that portion of BMO § 2.06.050 prohibiting outside employment by a municipal judge was decided upon summary judgment. However, they disagree on how the District Court decided the other two issues. Carlson argues that the District Court dismissed her attorney fee claim based on City’s Rule 12(b) motion. We disagree.
¶9 Although City originally moved to have Carlson’s attorney fee claim dismissed with a Rule 12(b) motion, it later moved for summary judgment on all issues. In its order dismissing Carlson’s attorney fee claim, the District Court explained,“The City filed a motion to dismiss (which was denied) and each party has filed motions for summary judgment as well as responses.” From this, we conclude that the District Court decided Carlson’s attorney fee claim on summary judgment.
¶10 Carlson also argues that the District Court decided the validity of that portion of BMO § 2.06.030 placing the municipal court clerk under the control of the finance department, on the merits after a trial. In a footnote to her statement of facts, Carlson maintains that because the District Court received testimony and exhibits during its hearing, the hearing had to be a trial, as it would be highly unusual to take evidence in a summary judgment hearing. We disagree. A district court has the discretion in a summary judgment hearing to allow oral testimony to establish whether genuine issues of material fact exist. Cole v. Flathead County (1989), 236 Mont. 412, 416, 771 P.2d 97, 99. Because the testimony was taken during a summary judgment hearing, we conclude that this issue was decided on summary judgment as well.
¶11 We review a district court’s order of summary judgment de novo. Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶ 21, 993 P.2d 11, ¶ 21. In our review, we apply the same evaluation as the district court does, based on Rule 56, M.R.Civ.P. Oliver, ¶ 21. Summary judgment is appropriate when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See Rule 56(c), M.R.Civ.P. We will apply this standard of review to all three issues raised on appeal.
ISSUE 1
¶12 Did the District Court correctly declare invalid the portion of BMO § 2.06.050 prohibiting outside employment for a municipal judge?
¶13 BMO § 2.06.050 provided in pertinent part that a municipal judge could not have any employment in addition to employment as a municipal judge. City contends that the language of § 3-6-101 et seq., MCA, and particularly § 3-6-202, MCA, expressly authorize it to enact legislation governing the qualifications of municipal court judges, as long as the ordinances do not violate Article VII, Section 9 of the Montana Constitution, which sets forth the qualifications for and restrictions upon district court judges and supreme court justices. City further argues that its ordinance prohibiting outside employment for a municipal judge is consistent with the provisions of § 3-1-604, MCA, which precludes a municipal court judge from practicing law in her own municipal court.
¶14 Carlson counters that the District Court properly invalidated the portion of BMO § 2.06.050 prohibiting outside employment by a municipal judge, because it conflicted with §§ 3-1-601 and -604, MCA, which by implication permit a municipal court judge to practice law in any other court but her own. Carlson argues that City is bound not only to avoid express conflicts with the statutes of this state, but is also bound not to adopt an ordinance which would frustrate the purpose behind state law or policy. Carlson contends that because the legislature intended to allow municipal judges to hold other employment, the ordinance forbidding this is invalid.
¶15 When interpreting statutes, this Court’s only function is to give effect to the intent of the legislature. Albright v. State by and through State (1997), 281 Mont. 196, 206, 933 P.2d 815, 821. The intention of the legislature in enacting all statutes must first be determined from the plain meaning of the words in the statute. State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333. The whole act must be read together and where possible, full effect will be given to all statutes involved. Albright, 281 Mont. at 206, 933 P.2d at 821. However, where the plain meaning of a statute is subject to more than one reasonable interpretation, we will examine the legislative history to discern intent. Committee for an Effective Judiciary v. State (1984), 209 Mont. 105, 114, 679 P.2d 1223, 1228.
¶16 We conclude that the portion of BMO § 2.06.050 prohibiting all outside employment by a municipal judge conflicts with § 3-1-604, MCA, when read in conjunction with § 3-1-601(1), MCA, and is therefore invalid. Section 3-1-604, MCA provides:
No municipal court judge may practice law before his own municipal court or hold office in a political party during his term of office.
Section 3-1-601(1), MCA, provides in pertinent part:
Except as provided in 3-1-604 ... no justice or judge of a court of record or clerk of any court may practice law in any court of this state...
¶17 Municipal judges are expressly prohibited in § 3-1-604, MCA, from practicing law in their own municipal courts. They are specially excepted in § 3-1-601(1), MCA, however, from the blanket prohibition preventing district court judges from practicing law in any court. City relied exclusively upon § 3-1-604, MCA, in its analysis, and failed to take § 3-1-601(1), MCA, into account. When these two statutes are read together, it appears that municipal judges should be free to practice law in any court except their own municipal court. However, City argues that, had the legislature intended to restrict its authority to prohibit outside employment for municipal court judges, it would have provided as much by amending § 3-6-202, MCA (setting forth the qualifications of and restrictions upon municipal court judges), to expressly allow such outside employment. Because the legislature did not do so, City argues, the only logical conclusion is that the legislature intended to leave to the cities the authority to decide whether to allow their respective municipal judges to have outside employment. To answer the question of what the legislature intended in this regard, we will look to the legislative history of §§ 3-1-604, and -601(1), MCA, set forth above.
¶18 The legislative history behind §§ 3-1-601 and -604, MCA, demonstrates that the legislature specially intended that municipal judges be allowed to practice law to supplement their incomes. The bill amending these statutes was titled “An Act to Allow a Municipal Court Judge ... to Practice Law Before Any Court of this State Except the Municipal Court of that Judge.” H.B. 415, 48th Legis. (Mont. 1983). This bill amended §§ 3-1-601 and 604, MCA, as follows:
3-1-601. Certain officers not to practice law or administer estates. (1) No Except as provided in 3-1-604, no justice or judge of a court of record or clerk of any court may practice law in any court in this state....
3-1-604. Restrictions on municipal court judges. No municipal court judge may practice law before his own municipal court or hold office in a political party during his term of office.
(Additions underlined, deletions stricken through). Representative Daily, who sponsored House Bill 415, introduced his bill to “allow a municipal court judge and his law partners to practice law before any court of this state except the court of that municipal judge.” Hearing on H.B. 415 before Comm. on Judiciary, 48th Legis. (1983). He further explained:
Current statutes do not allow a district court or municipal court judge to practice law in any court. This amendment would simply allow a municipal court judge to practice in other courts.
Hearing on H.B. 415 before Comm. on Judiciary, 48th Legis. (1983). Judge Geagan, who testified in support of the bill, told the House Judiciary Committee:
The municipal judge’s salary is not a generous one, so this bill will permit those judges to add to their income.
Hearing on H.B. 415 before Comm. on Judiciary, 48th Legis. (1983). Thus, it is clear that the legislature intended to allow municipal judges to practice law in all courts except their own municipal court.
¶19 City also presents a constitutional argument. It maintains that since Article VII, Section 9 of the Montana Constitution prohibits the outside employment of district court judges, and § 3-6-202, MCA, expressly requires a municipal court judge to have the same qualifications as are required of district court judges under Article VII, Section 9, its ordinance prohibiting outside employment for a municipal court judge actually complies with the Montana Constitution, and should therefore be upheld. We disagree. This argument totally ignores §§ 3-1-601(1) and -604, MCA, and confuses qualifications with restrictions.
¶20 Qualifications are threshold criteria one must meet in order to be considered for a judicial position. Article VII, Section 9(1) of the Montana Constitution, addresses the qualifications of supreme court and district court judges, including citizenship, residency, and number of years in the practice of law. The paragraph ends by providing that “qualifications and methods of selection of judges of other courts shall be provided by law.” The remaining subsections of Article 9, including the prohibition against the outside practice of law, are restrictions which apply specifically to supreme court and district court judges. Clearly, Section 9(1) gives the legislature the right to set additional qualifications forjudges of courts other than the district and supreme courts. That is precisely what the legislature has done. Section 3-6-202, MCA, which sets specific qualifications for municipal court judges, does not restrict them from having outside employment or engaging in the practice of law, and can be read in harmony with § 3-1-601(1), MCA, § 3-1-604, MCA, and Article VII, Section 9 of the Montana Constitution.
¶21 We have held that an ordinance which conflicts with a statute is void. State v. Police Court (1922), 65 Mont. 94, 100, 210 P. 1059, 1061. City is correct that it has implied authority to enact ordinances in certain situations; however, a city cannot enact ordinances which are repugnant to established law. Associated Students v. City of Missoula (1993), 261 Mont. 231, 234, 862 P.2d 380, 382.
¶22 The established law here does permit the outside practice of law by municipal court judges. While § 3-1-604, MCA, does not affirmatively declare that municipal judges can practice law outside their own municipal courts, its intent when read in conjunction with § 3-1-601(1), MCA, and'the legislative history of the two sections as amended, is clear. Because BMO § 2.06.050 forbids what §§ 3-1-601(1) and -604, MCA, implicitly authorize, it is in conflict with these statutes and is therefore invalid. The District Court is affirmed under this issue.
¶23 Carlson also argues that BMO § 2.06.050 violates her constitutional right to seek employment. Since we hold this city ordinance invalid for the reasons set forth above, we decline to address this issue.
ISSUE 2
¶24 Did the District Court correctly declare invalid the portion of BMO § 2.06.030 placing the clerk of the municipal court under the supervision of the department of finance?
¶25 City argues it had implied authority to enact an ordinance placing the municipal court- clerk under the supervision of the city department of finance. City argues that it falls upon the governing body to decide where its employees shall fall for supervision purposes, and that the District Court’s order voiding BMO § 2.06.030 violates City’s legislative authority and is a violation of the separation of powers.
¶26 Carlson counters that the municipal court clerk performs duties which are prescribed by statute and by the instructions of its court, and is a ministerial officer whom the municipal judge may and should control. Carlson argues that BMO § 2.06.030 is in conflict with § 3-1-111, MCA, which gives her court the authority to control the conduct of its ministerial officers. Carlson recites the testimony given by numerous city judges and clerks regarding the ministerial duties of municipal clerks, and maintains that the District Court had an ample record from which to conclude that the municipal clerk is in fact a ministerial position. Carlson also argues that placing the municipal clerk under the supervision of the executive branch would have the executive branch controlling judicial functions, in violation of the separation of powers’ clause of the Montana Constitution.
¶27 A ministerial officer is one who performs ministerial acts. Sprinkle v. Burton (1996), 280 Mont. 358, 367, 935 P.2d 1094, 1099. A ministerial act is one performed in obedience to authority without the exercise of judgment. Sprinkle, 280 Mont. at 367, 935 P.2d at 1099. In determining whether an officer is ministerial, we look to whether the officer has the right to exercise free judgment or discretion without constraint by legal authority. Sprinkle, 280 Mont. at 367, 935 P.2d at 1099.
¶28 A municipal court clerk must follow statutory directives regarding the filing and storage of records. Section 3-6-302, MCA. These duties allow for no real discretion. The municipal clerk must also follow the municipal judge’s orders regarding scheduling and the operation of the court. While some of these acts may call for the occasional exercise of independent judgment, this does not mean the clerk’s position is other than ministerial. State v. District Court (1990), 246 Mont. 225, 229, 805 P.2d 1272, 1275. The municipal clerk can exercise independent judgment only within those areas of responsibility in which the municipal judge allows him or her to do so.
¶29 A municipal court is empowered by statute to "... control, in furtherance of justice, the conduct of its ministerial officers.” Section 3-1-111(5), MCA. If the court were to be divested of this control, it would be powerless to regulate its own calendar, prioritize the time of its clerks to meet the needs of the court, or compel the clerks to obey its orders. In short, its power to conduct business would be impaired. Because BMO 2.06.030 would usurp the power of the municipal court to conduct its business, in violation of § 3-1-111, MCA, it is invalid. The District Court is affirmed on this issue.
¶30 Since we hold this city ordinance invalid on the grounds set forth above, we decline to address whether it is also an unconstitutional violation of separation of powers.
ISSUE 3
¶31 Did the District Court correctly dismiss Carlson’s claim for attorney fees?
¶32 Carlson argues that the District Court erred in dismissing her claim for attorney fees. However, we have held that the District Court disposed of this question on summary judgment, rather than by dismissal.
¶33 First, Carlson contends she is entitled to fees under the private attorney general doctrine. She claims this litigation vindicated important public policies grounded in the constitution, including the right to vote for qualified candidates, and the separation of powers among the equal branches of government. Private enforcement was required, Carlson argues, because City adopted the invalid ordinance even after she explained its infirmities. Carlson claims that a substantial number of persons have benefitted from her defense of the electorate’s right to vote for qualified candidates, and her support for the independence of the judicial branch. Second, Carlson argues she is entitled to fees and costs because City’s defense of BMO has been frivolous and in bad faith.
¶34 City contends the District Court was correct in denying Carlson her attorney fees under both the private attorney general doctrine and the bad faith theory. City argues that this case does not even remotely further or protect an issue of great societal importance. It points to the District Court’s finding that this action did not affect a large number of people as required for imposition of the doctrine, but rather affected only one individual, the municipal court judge. Further, City agrees with the District Court’s conclusion that it did not act with bad faith or malice, but in fact had legitimate concerns which it was attempting to address when enacting the subject ordinance.
¶35 A review of the record establishes that City first sought to dispose of Carlson’s claim for fees under a Rule 12 motion to dismiss. City later filed a motion for summary judgment on all counts. On October 27, 1999, the District Court held a hearing on Carlson’s motion for partial summary judgment. At the hearing, the District Court made it clear that City’s motion for summary judgment would not be heard at that time. The court then acknowledged on the record that there would need to be testimony on the attorney fee issue, and agreed with Carlson’s counsel that a two-tiered analysis on the fee question would likely be appropriate, to determine if Carlson should receive fees, and if so, how much. Two days after this hearing, Carlson filed her brief in opposition to City’s motion for summary judgment. In addressing the request for summary judgment on fees, she pointed out that the parties and the Court had already agreed during oral argument on other matters that disputed issues of fact concerning the fees rendered summary judgment on that point inappropriate.
¶36 On December 22, 1999, without ever holding a hearing on attorney fees, the District Court issued its order “dismissing” Carlson’s claim for fees. (As previously noted, the court indicated in the order that City’s motions to dismiss had previously been denied, and it was therefore proceeding to rule on the summary judgment motions). Subsequently, when Carlson sought clarification on the fee issue, the District Court entered another order clarifying that it intended to foreclose Carlson from recovering any attorney fees whatsoever.
¶37 After reviewing the record, we conclude the District Court erred in granting summary judgment on Carlson’s claim for attorney fees. Carlson clearly intended to preserve her right to present evidence on this issue, which the court earlier agreed would be appropriate. The court then summarily disposed of Carlson’s claim without giving her the opportunity to present evidence on bad faith, the private attorney general doctrine, or the nature and extent of her fees. As the District Court granted summary judgment on Carlson’s claim without giving her the benefit of the hearing that the parties and the court earlier contemplated, and in light of the fact that we uphold the District Court’s invalidation of the two contested portions of BMO, the District Court is reversed under this issue and this matter is remanded to the District Court for further proceedings consistent with this opinion.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER, TRIEWEILER and LEAPHART concur.
|
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01-137 03/27/01 Denied
Original Proceeding Supervisory Control
|
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] |
99-370 03/27/01 Affirmed Reversed
Dist. 11 (Flathead)
|
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] |
On April 4,2000, the defendant was sentenced to the following: DC-93-10757: Fifteen (15) years in the Montana State Prison, with five (5) years suspended; DC-93-10783: Ten (10) years each on Counts III, IV, and V in the Montana State Prison, all suspended. The sentences imposed in DC-93-10783 shall run concurrently with each other, but consecutively to the sentence imposed in DC-93-10757.
On November 2,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was advised of his right to be represented by counsel. The defendant proceeded pro se. The State was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (§46-18-904(3), MCA).
The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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] |
On May 3, 2000, the Defendant was sentenced to a thirteen (13) month commitment to the Department of Corrections, followed by four (4) years supervised probation.
On September 22, 2000, the Defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The Defendant was not present, but was represented by Steven Eschenbacher. The state was not represented.
DATED this 27th day of October, 2000.
The Defendant having been duly informed ofthe amended judgment and commitment, and having waived her right to appear before the undersigned for this pronouncement of sentence, whereupon,
IT IS ORDERED, ADJUDGED AND DECREED that the sentence shall be affirmed, with the amendment that the fine of $10,000 may have a credit applied to it for up to $5,000 which the defendant verifies she has paid to the classes of creditors listed in her Pre-Sentence Investigation Report, which include banks, credit cards, and doctors. This option is for debts accrued prior to sentencing.
Hon. Russell C. Fagg, District Court Judge
|
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On August 13, 1999, the defendant was sentenced to twenty (20) years in the Montana State Prison, to run concurrently with the sentences imposed in Cause Number DC-93-555, DC-98-870, DC-98-938, and DC-98-1005.
On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Richard Carstensen. The state was represented by Daniel Schwarz.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
It is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed, with the amendment that this sentence run consecutively to the sentence imposed in DC-98-938, but concurrently to the amended sentence imposed in DC-98-1005, with all time suspended. Further, the defendant must also successfully complete the Connections Corrections Program in Butte, Montana, prior to being discharged from parole.
The reason for this amendment is that the sentence is inadequate in that the defendant could be released within a few years, with no state supervision. The defendant's extensive criminal record, in such a short period of time, indicates that the defendant is more likely than not to relapse into drug use and a criminal lifestyle once discharged. The defendant has undergone numerous rehabilitation programs but has shown very little effect or commitment to live a law abiding lifestyle. The states supervision is necessary to buffer this defendant's rehabilitation potential and to protect the public.
DATED this 11th day of September, 2000.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
On February 23, 2000, the defendant was sentenced to thirty (30) years in the Montana State Prison, with ten (10) years suspended. The defendant is not eligible for parole until he completes the sexual offender treatment program.
On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by David Stenerson. The state was represented by Geoffrey Mahar.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
It is the unanimous decision of the Sentence Review Board that the sentence shall be amended to fifty (50) years in the Montana State Prison, with thirty (30) years suspended. Further, the Board lifts the parole restriction. As long as the defendant remains in some type of a sexual offender treatment program, he can be in that program within a community setting. The Board imposes an additional condition on this sentence, and that is that the defendant may not reside, or at any time be present, in Ravalli County or any county that is adjacent to or within fifty (50) miles of Ravalli County.
The reason for the amended sentence is that the sentence, as imposed, is clearly inadequate and should have a lengthier period of a suspended sentence on the end, partly because of the intelligence of the defendant and the fact that he committed a similar offense many years ago. The defendant clearly has the ability to groom a victim and to find his way into the trust of people who will be victimized by him, and will continue to have that ability. The Board feels it is absolutely necessary that the defendant be supervised for a very extended period of time. Additionally, it is important for the protection of this victim and his family that they not be subjected to contact with the defendant and that a condition needs to be imposed that will restrict the defendant's ability to have even inadvertent contact with the victim.
Done in open Court this 24th day of August, 2000.
DATED this 11th day of September, 2000.
Acting Chairwoman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. John Whelan.
|
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 The parents of C.B. and J.B. appeal the Findings of Fact, Conclusions of Law and Order issued by the Fifth Judicial District Court, Madison County, terminating their parental rights with respect to J.B. Resolution of the following issue is dispositive of this appeal: whether the District Court erred in determining that the State had demonstrated by clear and convincing evidence that the statutory criteria governing the termination of parental rights were satisfied. We affirm.
BACKGROUND
¶2 On December 10, 1998, the State filed a Petition for Temporary-Investigative Authority with regard to C.B. and J.B. Attached to the State's petition was a report generated by Kim K. Miller, a social worker for the Department of Public Health and Human Services (“DPHHS”). Miller stated that DPHHS had become involved with C.B. and J.B.'s family on November 2, 1998, based on a physical abuse referral. This was the third physical abuse referral received by the Madison County DPHHS concerning this family. Miller visited with C.B. (then five years old) at school and discovered numerous bruises on her body. C.B. informed Miller that the bruises were from her half-brother biting her as well as her mother spanking her “really hard” with a belt. An outreach worker from the Strengthening Families Program began visiting with the family in November 1998. The outreach worker informed Miller that on a visit to the family home on December 1, 1998, the home was extremely dirty and that J.B. (a daughter then five months old) was.in a baby swing soaking wet from sweat and urine and was very sick with a fever. The District Court granted the State's petition and C.B. and J.B. were removed from the family home.
¶3 The parents entered into a treatment plan on December 28,1998. The plan required the parents to undergo chemical dependency evaluations and psychological evaluations, participate in counseling and parenting classes, and provide a safe, stable, healthy environment for their children. The court extended temporary custody until May 18, 1999, and again through September 1, 1999. Another treatment plan was filed on June 30, 1999. Its requirements were similar to the previous plan.
-¶4 On September 3, 1999, Miller reported that although the parents had begun to comply with their treatment plans, they were still not in full compliance. The children's guardian ad litem also filed a report in which she stated that she was concerned about the cleanliness of the home. She recommended returning J.B. with the understanding that Family Services would be allowed to visit and would retain the right to remove J.B. at the first sign of a problem. She did not recommend returning C.B. On September 13, 1999, the District Court extended temporary custody of C.B. and J.B. for an additional six months and adopted a Family Preservation Conference Treatment Plan. The court ordered that J.B. begin a schedule of phased-in placement with her parents according to the treatment plan and that C.B. remain in foster care. On October 4,1999, Miller notified the parents that they were not in compliance with the court-approved treatment plan and informed them that if noncompliance continued DPHHS would seek further relief including termination of parental rights proceedings.
¶5 On December 16, 1999, DPHHS petitioned for permanent legal custody and termination of parental rights. On March 8, 2000, the parties entered into a stipulation agreeing that C.B.'s grandparents be appointed as her legal guardians. Pursuant to this stipulation, the District Court dismissed the State's petition as to C.B. The District Court held a hearing with regard to DPHHS's petition to terminate parental rights with respect to J.B. on March 8 and 13,2000. On March 30, 2000, the court issued its Findings of Fact, Conclusions of Law and Order terminating parental rights with respect to J.B. The court found that it would not be in J.B.'s best interest to be returned to the family home. The parents appeal.
STANDARD OF REVIEW
¶6 In reviewing a decision to terminate parental rights, we determine whether the district court's findings of fact supporting termination are clearly erroneous and whether the district court's conclusions of law are correct. In re B.F., 2000 MT 231, ¶ 7, [301 Mont. 281, ¶7], 8 P.3d 790, ¶ 7. In regard to the statutorily required findings of fact supporting termination, we have stated that a-natural parent's right to care and custody of a child is a fundamental liberty interest which must be protected by fundamentally fair procedures and, therefore, the burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In re P.M., 1998 MT 264, ¶ 12, 291 Mont. 297, ¶ 12, 967 P.2d 792, ¶ 12.
DISCUSSION
¶7 Did the District Court err in determining that the State demonstrated by clear and convincing evidence that the statutory criteria governing the termination of parental rights were satisfied?
¶8 Section 41-3-609(l)(f), MCA, provides that a district court may order the termination of the parent-child legal relationship upon a finding that the child is an adjudicated youth in need of care and both of the following exist:
(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.
¶9 The parents contend that they substantially complied with the Family Preservation Treatment Plan adopted by court order on September 9, 1999. We believe, however, that there is substantial credible evidence to support the District Court's finding that the treatment plan was neither complied with nor successful. The treatment plan listed four goals: (1) Plan for reunification, (2) Safety plan for the children, (3) Time lines, and (4) Backup plan, concurrent placement. The parents acknowledge that they did not substantially comply with the goal of completing tasks within the time lines established by the plan. For instance, as part of C.B.'s reunification plan, the parents were supposed to meet with Dr. Tim Casey, C.B.'s psychologist, by September 20,1999. The parents acknowledge that the father did not meet with Casey until November 1,1999, and the mother did not meet with Casey until January 6, 2000. The mother was to begin individual counseling on October 15,1999, but did not do so until November 22, 1999. The father was to complete the requirements of a chemical dependency evaluation by September 30, 1999, but did not begin the recommendations until November 22, 1999, and did not complete them until December 15,1999. Timeliness was material to the successful completion of the treatment plan — not only was timeliness one of the explicitly stated goals of the treatment plan, but DPHHS had also been working with the parents for over a year tb get them to complete their treatment plans in order to reunify the family.
¶10 Safety and cleanliness were also goals of the parents' treatment plans. The court found that the condition of the family home was not an environment for a child of J.B.'s age given the fact that the home was “cluttered with soiled laundry, unwashed dishes, excessive (24) beer cans, pornographic materials and dog and cat feces.” Photographs submitted by the State at trial support the court's characterization of the condition of the family home.
¶11 Kim Miller, the social worker from DPHHS that was in charge of the family's case, testified that the parent's compliance with the ongoing treatment plans was nominal and that she did not see any consistent change made for the benefit of the children. Rather, Miller testified that the parents' compliance with the various treatment plans was characterized by a pattern of increasing their efforts as hearings approached and then slipping back into their previous behavior patterns.
¶12 We also believe that there is substantial evidence in the record which supports the District Court's finding that the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. The District Court found that the psychological profile of each parent indicated a lack of ability to provide a safe environment for a young child. The testimony of psychologists, counselors, and social workers involved with this family support this finding. For instance, Dr. Richard W. Thomas, a licensed clinical professional counselor, testified that “[w]e had put a lot of resources into the family with very little change happening.” Dr. Thomas testified that he believed his counseling efforts were unsuccessful and that “these folks have not, in good faith, made an effort to be parents or to be husband and wife.” Dr. Ned Tranel, a child psychologist who conducted a psychological evaluation of both parents, testified that J.B.'s father lacked “the ability to identify and respond to the emotional state of another person in the absence of verbal cues.” Dr. Tranel testified that this inability compromises the father's capacity to nurture, bond, and protect a child.
¶13 The court also stated that “[t]he professionals are in agreement that the return of J.B. to the [family] home would not be in her best interest.” This finding is also supported by substantial evidence in the record. For instance, Dr. Thomas recommended that J.B. be put up for adoption because the parents were incapable of sustaining a relationship with each other as husband and wife or as mother and father. Dr. Tranel testified that he did not believe that J.B. would be safe in the care of her parents and he believed it would be in J.B.'s best interest to terminate parental rights because her parents are unable to generate a family environment at a threshold level to allow for the existence of the essential ingredients of child development. Dr. John Cook, a licensed clinical psychologist who performed two evaluations of J.B., testified that J.B. made significant developmental progress while in foster care and developed a strong bond to her foster parents. Dr. Cook testified that the information provided to him indicated that J.B.'s birth parents did not have the skills and abilities to meet the needs of a young child. Dr. Cook also testified that because of J.B.'s strong bond with her foster parents, returning J.B. to her birth parents would be traumatic and detrimental.
¶14 By-contrast, the parents refer us to their own testimony as well as the testimony of seven family members and one family friend. The District Court stated that testimony of the parents' family and friend was compromised by their lack of knowledge of the facts which motivated DPHHS's involvement and by the fact of their relationship with the family. A determination as to the credibility to be afforded to evidence is exclusively within the province of the finder of fact and will not be disturbed by this Court on appeal. State v. Boucher, 1999 MT 102, ¶ 19, 294 Mont. 296, ¶ 19, 980 P.2d 1058, ¶ 19.
¶15 The parents also refer us to the testimony of two home visitors from the Partnership to Strengthen Families Program (“Program”). Karen Swedman, a home visitor working with the Program, made eight scheduled visits with the family in the fall of 1999. Swedman did not recommend termination of parental rights but rather recommended ongoing treatment plans with visitation between the parents and J.B. in the family home. Swedman also testified that she found 24 cans of beer in the parents' bedroom during one visit and that J.B.'s mother told her that her husband had pushed her head through the parents' bedroom door. Laurie Bartoletti, another home visitor with the Program, made 27 scheduled and unscheduled in-home visits with the family. Bartoletti did not recommend termination of parental rights and stated that she did not believe that returning J.B. to the family home would threaten J.B.'s health or safety. Howéver, Bartoletti also admitted that she had only witnessed J.B. and her father interact on two occasions. Neither Swedman nor Bartoletti were familiar with the psychological evaluations of the parents or the parents' history of domestic violence. The court did not find the testimony of the Strengthening Families visitors credible because it sensed that their recommendations were “based on maternal instinct rather than fact.” As stated above, credibility determinations are exclusively within the province of the finder of fact and will not be disturbed on appeal. See Boucher, ¶ 19. Furthermore, the fact that the evidence presented in a case conflicts does not automatically preclude a finding that clear and convincing evidence to support a given position exists. In re J.L. (1996), 277 Mont. 284, 290, 922 P.2d 459, 462. We conclude that the District Court's findings are adequately supported by the record before us.
¶16 Lastly, the parents contend that the District Court erred in finding that J.B.'s mother had lost custody of another child because of her inability to parent. We agree that there is absolutely no evidence in the record to support this finding. However, as discussed above, there is sufficient evidence to support the termination of parental rights as to J.B. It is well established that “no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless.” In re A.N., 2000 MT 35, ¶ 39, 298 Mont. 237, ¶ 39, 995 P.2d 427, ¶ 39.
¶17 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, TRIEWEILER and NELSON concur.
|
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] |
01-083 03/13/01 Denied
Original Proceeding Habeas Corpus
|
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] |
On June 26, 2000, the defendant was sentenced to the following: ADC-99-467: Ten (10) years in the Montana State Prison, with five (5) years suspended, to run consecutively with ADC-99-395 and with any other sentence the defendant is presently serving; ADC-99-395: Twenty (20) years in the Montana State Prison, with ten (10) years suspended, to run consecutively with the sentence imposed in ADC-99-467 and with any other sentence.the defendant is currently serving. The defendant is ineligible for parole for the first ten (10) years; ADC-98-352-1: Ten (10) years in the Montana State Prison, with five (5) years suspended, to run consecutively to any other sentence the defendant is currently serving.
On November 2,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
Done in open Court this 2nd day of November, 2000.
DATED this 27th day of November, 2000.
The defendant was present and was advised of his right to be represented by counsel. The defendant proceeded pro se. The state was represented by Susan Weber.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a décision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (§46-18-904(3), MCA).
The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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] |
On July 18, 2000, the defendant was sentenced to a one (1) year commitment to the Department of Corrections, followed by three (3) years of probation.
On November 3,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Michael Klinkhammer. The state was represented by Daniel Schwarz.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
The sentence as imposed is clearly inadequate both for the safety of those who use the public streets, and for any prospects of rehabilitation for a repeat offender such as the defendant.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to a thirteen (13) month commitment to the Department of Corrections, followed by four (4) years of probation. All of the existing conditions shall remain in effect, with two additional conditions imposed by the Board: 1) prior to discharge of the Department of Corrections sentence, the defendant shall enroll in and successfully complete the Connections Corrections Program in Butte, Montana; and 2) during the probationary phase of the sentence, the defendant may not own, physically posse.ss, physically control, or operate a motor vehicle for any purpose.
Done in open Court this 3rd day of November, 2000.
DATED this 27th day of November, 2000.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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7
] |
98-036 02/22/01 Affirmed
Dist. 8 (Cascade)
|
[
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87,
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5
] |
01-181 03/27/01 Denied
Original Proceeding Supervisory Control
|
[
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] |
00-305 02/15/01 Affirmed
Dist. 1 (Lewis & Clark)
|
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] |
On October 26,1999, the defendant was sentenced to the following: Count I: Six (6) months in the Fergus County Jail, to run consecutively with Counts II and III, all suspended; Count II: Five (5) year commitment to the Department of Corrections; and Count III: Five (5) year commitment to the Department of Corrections, to run consecutively with Count II, all suspended.
On March 3, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was advised of his right to be represented by counsel. The defendant proceeded Pro Se. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive."
DATED this 28th day of March, 2000.
The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Done in open Court this 3rd day of March, 2000.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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On August 13, 1999, the defendant was sentenced to twenty (20) years in the Montana State Prison, to run concurrently with the sentences imposed in Cause Number DC-93-555, DC-98-870, DC-98-938, and DC-98-1005.
On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Richard Carstensen. The state was represented by Daniel Schwarz.
The Defendant having been dulyinformed of the amendedjudgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon,
IT IS ORDERED, ADJUDGED AND DECREED that the sentence shall be affirmed, with the amendment that this sentence run consecutively to the sentence imposed in DC-98-938, but concurrently to the amended sentence imposed in DC-98-1005, with all time suspended. Further, the defendant must also successfully complete the Connections Corrections Program in Butte, Montana prior to beings discharged from parole.
Hon. Ted L. Mizner, District Court. Judge.
|
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] |
On March 2, 2000, the defendant was sentenced to the following: Count I: Five (5) years in the Montana State Prison; and Count II: Six (6) months in the Gallatin County Detention Center, to run consecutively with Count I.
On August 25, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The Defendant was present and was represented by Brock Albin. The state was represented by Marty Lambert.
The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon,
DATED this 8th day of November, 2000.
IT IS ORDERED, ADJUDGED AND DECREED that the sentence shall be amended to the following: Count I: five (5) year commitment to the Department of Corrections; the sentence imposed in Count II shall remain the same. It is the Board’s recommendation that the defendant be screened for entry into the Treasure State Correctional Training Center. All of the conditions imposed by the trial court are affirmed, with the addition that the defendant be required to pay for and successfully complete a counseling assessment with a focus on violence, dangerousness, and chemical dependency as required by §45-5-206, MCA. The defendant shall follow through on any recommendations made by the counseling provider; the counseling provider is to be approved by the sentencing court; the counseling must include a counseling assessment and a minimum of 25 hours of counseling in addition to the assessment; the assessment and counseling must be with a person licensed under Title 37, chapter 17, 22, or 23; and the counseling must be directed to the defendant’s violent conduct.
Hon. Ted L. Mizner, District Court Judge
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Following a jury trial in the Twenty-second Judicial District Court, Michael Billedeaux was convicted of deliberate homicide (felony murder) and sentenced to forty years in Montana State Prison. He appeals his conviction, alleging that the District Court improperly denied his motion for a directed verdict, improperly instructed the jury and improperly denied his motion for a new trial. We affirm the rulings of the District Court on all issues raised.
BACKGROUND
¶2 On the evening of November 14, 1997, hours after getting married, Richard Whistling Elk (Whistling Elk) was attacked in the parking lot of the Town Pump convenience store in Hardin, Montana. He was first knocked to the ground and then beaten, kicked and stabbed by four young men: Michael Billedeaux (Billedeaux); Mike Hatton (Hatton); and two friends, Timothy Swank and Thomas Morrison. Whistling Elk died from five knife wounds received during the fight. After an investigation by police, all four individuals were arrested and faced trial on a variety of charges. Billedeaux was charged by information with accountability for deliberate homicide or, in the alternative, deliberate homicide under the felony murder rule of § 45-5-102(l)(b), MCA. A jury found him guilty of deliberate homicide (felony murder) and the District Court sentenced him to forty years in Montana State Prison with an additional ten years for the use of a weapon. He appeals his conviction, raising the following issues:
¶3 Issue 1. Did the District Court err when it denied Billedeaux’s motion for a directed verdict on the charge of deliberate homicide (felony murder)?
¶4 Issue 2. Did the District Court err by not giving a jury instruction on the lesser included offense of assault?
¶5 Issue 3. Did the District Court err when it denied Billedeaux’s motion for a new trial?
DISCUSSION
¶6 At the close of the State’s case, Billedeaux made a motion for a directed verdict of acquittal on both counts, arguing that the State did not present sufficient evidence to send- the case to the jury. The District Court denied his motion.
¶7 Issue 1. Did the District Court err when it denied Billedeaux’s motion for a directed verdict on the charge of deliberate homicide (felony murder)?
¶8 We review a district court’s decision to deny a criminal defendant’s motion for a directed verdict for an abuse of discretion. State v. Brady, 2000 MT 282, ¶ 20, 302 Mont. 174, ¶ 20, 13 P.3d 941, ¶ 20 (citing State v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141). When the evidence in a criminal case is insufficient to support a guilty verdict the court may, either on its own motion or on motion of the defendant, dismiss the action and discharge the defendant. Section 46-16-403, MCA (1997). A defendant is entitled to a directed verdict of acquittal if reasonable persons could not conclude from the evidence, taken in a light most favorable to the prosecution, that guilt was proven beyond a reasonable doubt. Therefore, a directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. Bromgard, 261 Mont. at 293, 862 P.2d at 1141.
¶9 Billedeaux was charged with accountability for deliberate homicide under § 45-2-301, MCA, and deliberate homicide under § 45-5-102(l)(b), MCA, the felony murder rule. His motion for directed verdict covered both counts but, as he was acquitted by the jury of accountability for deliberate homicide, the District Court’s denial of Billedeaux’s motion with respect to that charge is moot. Billedeaux’s sole claim on appeal, then, is whether the District Court improperly denied his motion on the felony murder charge.
¶10 To convict on a charge of deliberate homicide under the felony murder rule of § 45-5-102(l)(b), MCA, the State must show that:
the person attempts to commit, commits, or is legally accountable for the attempt or commission of. . . felony assault, aggravated assault, or any other forcible felony and in the course of the forcible felony ... the person or any other person legally accountable for the crime causes the death of another human being. •
Section 45-5-102(l)(b), MCA (1997). There is conflicting testimony about who did the stabbing, but there is no doubt that one of the four young men inflicted the knife wounds which caused Whistling Elk’s death. Therefore, to overcome Billedeaux’s motion for a directed verdict of acquittal on this charge, the State must have provided at least some evidénce (1) that Billedeaux was legally accountable for the attempt or commission of a forcible felony and (2) that in the course of that felony either he or another accountable person caused Whistling Elk’s death.
¶11' The State presented sufficient evidence for the jury to find that Billedeaux committed the forcible felony of felony assault. A person commits the offense of felony assault if the person purposely or knowingly causes bodily injury to another with a weapon. Section 45-5-202, MCA (1997). A “weapon” includes any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury. Section 45-2-101(76), MCA. Either a knife or shoes may be considered a weapon under this definition. State v. Mummey (1994), 264 Mont. 272, 277, 871 P.2d 868, 871 (holding that tennis shoes may be a weapon).
¶12 There was a great deal of conflicting testimony from the eyewitnesses in this case but two people, both of whom knew Billedeaux and had a clear view of the fight, testified that they saw him kicking Whistling Elk. Lorrie Harris, the cashier at the Town Pump, had worked with Billedeaux and knew him well. She testified that she saw him kicking Whistling Elk while he was on ground. Roberta Falls Down, the driver of the car in which Hatton, Billedeaux, Swank and Morrison had been riding, was parked a short distance away when the fight began. She testified that she saw Billedeaux kick Whistling Elk about three times.
¶13 We conclude, based on this record, that there was sufficient evidence for the jury to conclude that Billedeaux committed the offense of felony assault. Finally, although it is not known who inflicted the knife wounds, it is clear that Whistling Elk’s death was caused during the attack, either by Billedeaux himself or by one of the others who joined him in the attack. Under these circumstances, Billedeaux was not entitled to a directed verdict of acquittal on the felony murder charge, and the District Court correctly denied his motion.
¶14 Issue 2. Did the District Court err by not allowing a jury instruction on the lesser included offense of misdemeanor assault?
¶15 The District Court’s final jury instructions did not include an instruction on the lesser included offense of misdemeanor assault as an alternative to the accountability and deliberate homicide charges. Billedeaux argues that he was entitled to such an instruction and the District Court’s failure to provide one is reversible error. The State argues that Billedeaux did not properly request the assault instruction and did not object to its omission when the District Court asked for objections to the jury instructions. The State contends, and this Court agrees, that, having failed to adequately raise this issue at trial, Billedeaux has waived his right to do so on appeal.
¶ 16 A lesser included offense instruction must be given when there is a proper request by one of the parties. Section 46-16-607(2), MCA. However, absent such a request, the trial court has no duty to instruct the jury on a lesser included offense. State v. Sheppard (1992), 253 Mont. 118, 124, 832 P.2d 370, 373. This rule allows counsel to omit an otherwise appropriate lesser included offense instruction as part of a trial strategy of forcing the jury to choose between finding the defendant guilty of the greater offense or outright acquittal. Sheppard, 253 Mont. at 124, 832 P.2d at 373. Furthermore, a party may not assign as error any omission from instructions unless an objection was made specifically stating the matter objected to, and the grounds for the objection, at the settlement of instructions. Section 46-16-410(3), MCA.
¶17 There is some uncertainty about whether Billedeaux made a proper request for an instruction on a lesser included offense of misdemeanor assault. The initial set of eleven instructions he proposed- to the District Court did not include such an instruction. According to the briefs, at the informal settling of instructions the District Court inquired whether Billedeaux was going to offer a lesser included offense instruction. Billedeaux’s counsel then manually changed his offered instructions to read "12" offered instructions rather than "11" and added an assault instruction to his filing with the clerk. However, the set of proposed jury instructions given to the District Court only contained the original eleven, without the lesser included assault instruction.
¶18 Despite the technical filing of the instruction with the clerk, Billedeaux never informed the District Court that such an instruction was going to be filed or had been filed. Billedeaux as much as concedes that he never properly requested the lesser included offense instruction when he states in his brief that, after the District Court’s prompting, “he then drafted a lesser included instruction for assault and lodged it in the court [file]. However, there was no further discussion concerning the lesser included offense and consequently, none was offered or given.”
¶19 Even if Billedeaux’s filing of the additional instruction with the clerk could be said to be a proper request, he failed to object when the misdemeanor assault instruction was omitted from the District Court’s final set of jury instructions. When instructions were settled on the record, the District Court asked each party to state objections to instructions given or omitted. Billedeaux objected to the District Court’s refusal to give several of his other proposed instructions, but did not object to the omission of his proposed misdemeanor assault instruction.
¶20 Billedeaux concedes that he never actually offered a lesser included offense instruction. When the District Court declined to include one in the final instructions to the jury, he had the opportunity to object but declined to do so. We conclude that, under these circumstances, Billedeaux has failed to sufficiently raise an issue of reversible error with regard to the lesser included offense instruction.
¶21 Issue 3. Did the District Court err when it denied Billedeaux’s motion for a new trial?
¶22 Following the jury’s verdict, Billedeaux moved for a new trial alleging that the District Court failed to properly instruct on the lesser included offense of misdemeanor assault, it failed to grant Billedeaux’s motion for a directed verdict at the close the State’s case, and it allowed a flawed verdict form to be used by the jury. After briefing from both parties, the District Court denied the motion.
¶23 The trial court has discretion to grant a criminal defendant a new trial but may do so only if required in the interests of justice. Section 46-16-702(1), MCA. The court’s decision, whether to grant or deny a new trial, must be justified by the law and the weight of the evidence. Section 46-16-702(3), MCA. We review a district court’s decision on a motion for a new trial to determine whether the district court abused its discretion. Absent such abuse, we will affirm the district court’s decision. State v. Hocevar, 2000 MT 157, ¶ 36, 300 Mont. 167, ¶ 36, 7 P.3d 329, ¶ 36.
¶24 In addition to restating his claim that the District Court should have granted his motion for a directed verdict and instructed the jury on the lesser included offense of assault, Billedeaux argues that a new trial was warranted because of an error on the verdict form used by the jury. The first two issues have been addressed above.
¶25 Billedeaux was charged with two counts: Count I, accountability for deliberate homicide, and Count II, deliberate homicide under the felony murder rule. After the jury had returned its verdict, Billedeaux discovered that the word “accountability” had been omitted before the words “deliberate homicide” on Count I of the verdict form. Although Billedeaux never objected to the verdict form at trial and was, himself, the one who submitted the form to the court, he now claims that the District Court should have granted his motion for a new trial on the basis of his clerical error. We conclude that the error was harmless and that the District Court properly denied Billedeaux’s motion for a new trial.
¶26 The evidence, argument and instructions presented at trial left no doubt that the charge in Count I was accountability for deliberate homicide, not deliberate homicide. During the State’s opening argument, the prosecutor referred to the charge as “accountability for deliberate homicide” three times. During its closing statement, the State referred to the charge as “accountability for deliberate homicide” five times. Defense counsel referred to the charge of “accountability for deliberate homicide” three times during his closing statement. The State referred to “accountability for deliberate homicide” twice more during its rebuttal.
¶27 In addition to the arguments of the parties, the jury instructions informed the jury of the correct charge. Jury instruction No. 6 stated:
An information has been filed charging the defendant, Michael Vernon Billedeaux Jr., with the offense of COUNT I: ACCOUNT ABILITY FOR DELIBERATE HOMICIDE, or in the alternative to COUNT I: COUNT II: DELIBERATE HOMICIDE (FELONY MURDER).
Other instructions defined accountability, deliberate homicide and felony murder.
¶28 We conclude that the jury was correctly informed of the charges against Billedeaux and that the error on the verdict form had no effect on the outcome of the trial. Given our conclusions on issues one and two, we conclude that the District Court did not abuse its discretion when it denied Billedeaux’s motion for a new trial.
¶29 We affirm the District Court on all issues raised.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, TRIEWEILER and NELSON concur.
|
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] |
On January 14,2000, the defendant was sentenced to four (4) years in the Montana State Prison.
On August 25, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Jennifer Johnson. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
It is the unanimous decision of the Sentence Review Division that the sentence shall be amended to a four (4) year commitment to the Department of Corrections, with no recommendation to the Department of Corrections for placement of the defendant.
The reason for the amendment is to bring this sentence into compliance with the court's statutory authority at the time of the disposition hearing.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1. Darryl McKenzie appeals from the Order Denying Petition to Reinstate Driver's License issued by the Tenth Judicial District Court, Fergus County. McKenzie contends that the District Court erred when it denied his petition to reinstate his driver's license. We affirm.
BACKGROUND
¶2 On May 2, 1999, at 2:55 a.m., Officer Edward McLean of the Lewistown Police Department stopped Darryl McKenzie for driving 36 miles per hour in a 25 mile per hour speed zone. While speaking to McKenzie, Officer McLean smelled the odor of alcohol on his breath and asked him to step out of his vehicle. Officer McLean noticed that his eyes were bloodshot and watery and his speech was slurred. Suspecting that McKenzie had been driving under the influence of alcohol, Officer McLean asked McKenzie if he would submit to a preliminary alcohol screening test-specifically a portable breath test. McKenzie refused. Officer McLean read an implied consent advisory to McKenzie, informing him of the consequences of refusal and again asked him whether he would submit to a test. McKenzie refused again. Officer McLean placed McKenzie under arrest for DUI and transported him to the police station.
¶3 At the police station, Officer McLean read the Montana Department of Justice Implied Consent Advisory to McKenzie and requested that McKenzie submit to a blood test. Officer McLean erroneously informed McKenzie that his license could be suspended for six months for refusing the portable breath test in the field and an additional six months for refusing the blood test at the police station. See § 61-8-409(6), MCA (providing that the refusal of a preliminary alcohol screening test and a blood test during the same incident may not be considered as two separate refusals for purposes of revocation or suspension of driving privileges). McKenzie refused to submit to a blood test.
¶4 On May 17,1999, McKenzie filed a petition requesting a hearing on the suspension of his driver's license. The District Court held a hearing on August 31, 1999, at the conclusion of which it denied McKenzie's petition.. On September 30, 1999, the court issued an order and supporting memorandum denying McKenzie's petition for reinstatement. McKenzie appeals.
STANDARD OF REVIEW
¶5 In reviewing a district court's denial of a petition for reinstatement of a driver's license, we review the lower court's findings of fact to determine whether they are clearly erroneous audits conclusions of law to determine whether they are correct. Williams v. State, 1999 MT 5, ¶ 9, 293 Mont. 36, ¶ 9, 973 P.2d 218, ¶ 9.
DISCUSSION
¶6 Did the District Court err when it denied McKenzie's petition to reinstate his driver's license?
¶7 McKenzie contends that Officer McLean failed to comply with the requirements of § 61-8-409(3), MCA, by asking McKenzie whether he would submit to a portable breath test prior to reading McKenzie the required advisory. McKenzie acknowledges that Officer McLean subsequently advised him of his right to refuse and the consequences of refusal and again asked him to submit to a portable breath test, but McKenzie insists that this was too late to cure the statutory violation.
¶8 The State agrees that McKenzie's first refusal was invalid and could not be used as a basis to suspend McKenzie's license because it was made before Officer McLean informed McKenzie of the consequences of refusal. However, the State maintains that once Officer McLean informed McKenzie of the consequences of refusal, McKenzie's subsequent refusal to submit to a portable breath test was valid and, therefore, the court had the right to suspend or revoke his license for up to one year.
¶9 In a hearing on a petition to challenge a license suspension held pursuant to § 61-8-403, MCA, the district court may determine whether the person whose license was suspended refused to submit to one or more tests designated by the officer. Section 61-8-403(4)(a)(iv), MCA. Pursuant to § 61-8-409, MCA, a person who operates a vehicle upon public ways of the state of Montana is deemed to have given consent to a preliminary alcohol screening test of the person's breath, and refusal to submit will result in the suspension or revocation of that person's driver's license for up to one year. Section 61-8-409(3), MCA, provides that “[t]he peace officer shall inform the person of the right to refuse the test and that the refusal to submit to the preliminary alcohol screening test will result in the suspension or revocation for up to 1 year of that person's driver's license.”
¶10 We agree that McKenzie's initial refusals which occurred prior to being informed of both his right to refuse and the consequences of refusal are insufficient cause to suspend his license. Section 61-8-409(3), MCA, specifically requires that an officer inform the person stopped of the right to refuse and the consequences of refusal. Obviously, in order for this provision to be meaningful, notice of the right to refuse and the consequences of refusal must proceed the refusal itself. However, Officer McLean complied with § 61-8-409(3), MCA, by providing McKenzie with the requisite information and again asking McKenzie to submit to a test. McKenzie's refusal thereafter was sufficient cause to suspend his driver's license. Therefore, the District Court correctly concluded that McKenzie's license was properly suspended.
¶11 McKenzie also contends that the court should have granted his petition to reinstate his driver's license because at the police station Officer McLean misinformed him of the consequences for refusing a blood test. Both parties acknowledge that Officer McLean misinformed McKenzie that, because McKenzie had refused to submit to a portable breath test in the field, his subsequent refusal of a blood test could cause him to lose his license for one year-six months for each refusal. Pursuant to § 61-8-409(6), MCA, the refusal of a preliminary alcohol screening test and a blood test during the same incident may not be considered as two separate refusals for purposes of revocation or suspension of driving privileges. McKenzie argues that Officer McLean, by stating a greater penalty for refusal than provided by law, was unlawfully attempting to coerce him into consenting to submit to a blood alcohol test.
¶12 We decline to address the merits of this claim. McKenzie's refusal to submit to a portable breath test in the field after being informed of his right to refuse and the consequences of refusal is sufficient cause to suspend his license for six months. See §§ 61-8-409(4) and -402(6)(a), MCA.
¶13 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, LEA PH ART and TRIEWEILER concur. .
McKenzie insists that Officer McLean asked him twice whether he would submit to a breath test before reading McKenzie the implied consent advisory. We have listened to an audiotape of McKenzie's arrest and disagree. Furthermore, whether Officer McLean asked McKenzie once or twice prior to reading McKenzie the implied consent advisory is irrelevant to our holding.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Gulf Insurance Company (Gulf) and Security Insurance of Hartford (Security) appeal the summary judgment entered by the Twentieth Judicial District Court, Lake County, in favor of the Defendants, Donald Clark and Clark and Associates, Inc. (Clark). Gulf and Security contend that the District Court erred as a matter of law by applying the wrong statute of limitations to their claim brought under Montana’s Uniform Fraudulent Transfer Act.
¶2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 This controversy commenced in April of 1995, when Gulf and Security brought an action in federal district court in California against Clark and other parties. The action resulted from indemnity bond agreements concerning government construction contracts that had been breached by Clark and the other parties. Gulf and Security performed under the agreements-meaning they . completed performance under the contracts subsequent to Clark’s and the other parties’ default-and then demanded reimbursement pursuant to the underlying indemnity contract.
¶4 Gulf and Security eventually prevailed after the defendants failed to appear, and were awarded default judgments on August 25, 1997-approximately $573,000 in favor of Gulf and approximately $56,000 in favor of Security.
¶5 Meanwhile, it is undisputed that in May and June of 1995, Clark recorded five deeds conveying tracts of real property in Lake County from himself to Clark and Associates, Inc., a Montana corporation. Clark’s son is the sole shareholder of this corporation. Gulf and Security alleged that these transfers were made with the actual intent to prevent Gulf and Security from executing judgment against Clark, individually, and were made without Clark receiving the reasonably equivalent value as consideration. They further alleged that the transfers were made to an “insular transferee” and that Clark, individually, retained possession and control of the properties after the transfers were completed.
¶6 On July 21, 1999, Gulf and Security docketed their federal court judgment in federal district court in Montana. At that time, Gulf and Security also filed a verified complaint in state district court, seeking to have Clark’s alleged fraudulent conveyances deemed void under Montana’s Uniform Fraudulent Transfer Act (hereinafter UFTA). This action was filed within two years of the federal judgment being entered in their favor.
¶7 Clark moved for summary judgment on June 7, 2000, asserting, in part, that the applicable statute of limitations under UFTA extinguished the fraudulent transfer claim.
¶8 The District Court agreed with Clark and entered judgment in his favor on August 4, 2000. The court reasoned that under the clear mandate of § 31-2-341, MCA, under UFTA, a cause of action with respect to a fraudulént transfer must be brought within two years of the transfer itself, or, alternatively, within one year of the reasonable discovery of the transfer by the claimant.
¶9 Numerous affidavits before the court indicated that Gulf and Security were aware that Clark resided in Flathead County at the time the original indemnity agreements were entered in 1993, and then, in 1995 and 1996, the two parties used the services of several private investigators in collecting information on Clark’s whereabouts in Flathead County for the purpose of establishing proper service so that the default judgment could be entered. In light of these uncontested facts, the court determined that Gulf and Security’s claims missed the two-year-of-transfer deadline, and the five deeds conveyed by Clark in 1995 could reasonably have been discovered by Gulf and Security “at anytime following the date of recording....”
¶10 Gulf and Security appeal the judgment of the District Court.
DISCUSSION
¶11 The lone issue on appeal is whether the District Court erred when it ruled in its order granting summary judgment in favor of Clark that Gulf and Security’s fraudulent conveyance claim was time-barred by the statute of limitations under Montana’s Uniform Fraudulent Transfer Act, §§ 31-2-326 through 342, MCA (hereinafter UFTA). We note that another underlying issue in this matter-whether the default judgment was valid-was not addressed by the District Court and is therefore not before this Court on appeal.
¶12 This Court reviews an order granting summary judgment de novo, using the same Rule 56, M.R.Civ.P., criteria applied by the district court. See Spinier v. Allen, 1999 MT 160, ¶ 14, 295 Mont. 139, ¶ 14, 983 P.2d 348, ¶ 14.
¶13 Ordinarily, this Court looks to the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits to determine the existence or nonexistence of a genuine issue of material fact. See Erker v. Kester, 1999 MT 231, ¶ 17, 296 Mont. 123, ¶ 17, 988 P.2d 1221, ¶ 17. Here, Gulf and Security concede that no material facts remain at issue; rather this appeal focuses squarely on a question of law concerning the applicable statute of limitations. The standard of review for questions of law is whether they are correct. See Albright v. Department of Revenue (1997), 281 Mont. 196, 205, 933 P.2d 815, 821.
¶14 The question of law here involves an ancillary remedy, one that offers a creditor with a claim against a debtor the legal means to preserve its right to compensatory redress. Generally, UFTA addresses transfers of property that have already occurred. Under § 31-2-339, MCA, for example, an ancillary action may be brought by a creditor that (1) voids a previous transfer by the debtor, or (2) places an attachment on a transferred asset or other property in the hands of a transferee; or (3) enjoins either the debtor or transferee from further disposition of the transferred asset or other property. The statute also permits the appointment of a receiver and “any other relief the circumstances may require.” See § 31-2-339(l)(a) through (c), MCA. Finally, if the creditor has attained a judgment against the debtor, the creditor may levy execution on the transferred asset or its proceeds. See § 31-2-339(2), MCA.
¶15 Here, it is undisputed that Gulf and Security’s “claim” or right to payment arose before the transfers were made. Although the record is not clear on precisely when the breach occurred-apparently some time in 1993-the action in California commenced on April 25,1995, and the transfers in question occurred in May and June of 1995. Reading § 31-2-333 and 334, MCA together, the following may establish the liability of a debtor as to a creditor, whose “claim” arose before the transfer was made, if one of the following occur: .
(1) the debtor made the transfer with actual intent to hinder, delay, or defraud any creditor of the debtor. See § 31-2-333(l)(a), MCA.
(2) the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor: (i) was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or (ii) intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due. See § 31-2-333(1)0»), MCA.
(3) the debtor made the transfer without receiving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer. See § 31-2-334(1), MCA.
(4) the transfer was made to an “insider” for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent. See § 31-2-334(2), MCA.
¶16 The foregoing actions are subject to an explicit statute of limitations, however, under § 31-2-341, MCA, which bars a creditor’s right to bring an UFTA claim unless the action is commenced:
(1) within two years after the transfer was made, or, if later, within one year after the transfer was or could reasonably have been discovered by the claimant, for transfers subject to § 31-2-333(l)(a), MCA.
(2) within 2 years after the transfer was made for transfers subject to §§ 31-2-333(l)(b) or 31-2-334(1), MCA.
(3) within 1 year after the transfer was made for transfers subject to § 31-2-334(2), MCA.
Here, the claim asserted by Gulf and Security-that Clark transferred the assets with the intent to “hinder, delay, or defraud”-is afforded the most lenient statute of limitations, under § 31-2-341(1), MCA, which means they had either two years after the transfers were made, or one year after the transfers were or could have reasonably been discovered by Gulf and Security, to file suit.
¶17 Gulf and Security correctly point out that the statute of limitations under UFTA has not been fertile ground for the development of case law in Montana. Thus, in assisting our analysis here and in the future, our application of § 31-2-341(1), MCA, can be broken down into a three-step inquiry as follows:
(1) first, did the creditor bring his UFTA claim within one year of “discovering,” i.e., acquiring actual knowledge, of the transfer?'
Contrary to the general focus of the parties’ arguments, under UFTA, discovery of the transfer — not the date of the transfer itself-is the gravamen of the statute of limitations under § 31-2-341(1), MCA. If the answer to this first inquiry is an uncontested yes, then the creditor’s' claim may proceed regardless of when the transfer occurred, or when or if a judgment was entered. The second prong of our analysis addresses the question raised by the statute itself:
(2) is the date that the creditor claims he “discovered” the transfer reasonable?
Here, a court’s discretion may be invoked, where the rule focuses on the diligence of the creditor weighed against the stealth of the debtor under any given set of circumstances. To illustrate, suppose the creditor claims that he did not “discover” or acquire actual knowledge of a 1995 transfer until August of 1998, and then filed his UFTA claim in July of 1999, within the one-year limitation period. The debtor may challenge this by presenting evidence that the creditor could have “reasonably discovered” the transfer much earlier. See § 25-4-301, MCA (providing that if a statute of limitations allegation is controverted, “the party pleading must establish, on the trial, the facts showing that the cause of action is so barred”).
¶18 After this inquiry is resolved, if the answer is still yes, that it would be unreasonable to charge the creditor with knowledge of the transfer beyond one year prior to the date that the UFTA claim was filed, the creditor may proceed. If the answer is no-that a diligent creditor could have and should have discovered the transfer more than one year prior to filing his claim-then we proceed to our third and final prong:
(3) did the creditor nevertheless file his UFTA claim within two years of the debtor’s transfer?
Again, if the answer is yes, then the creditor’s UFTA claim may proceed. If the answer is no, then a claim brought under § 31-2-333(l)(a), MCA, is barred pursuant to the explicit terms of the Act, under § 31-2-341(1), MCA.
¶19 Applied to the case sub judice, the burden of establishing the facts necessary to bar Gulf and Security’s UFTA claim rests with Clark, pursuant to § 25-4-301, MCA. Therefore, in order to prevail as a matter of law on a motion for summary judgment Clark must establish as undisputed that (1) Gulf and Security discovered or could reasonably have discovered the transfers more than one year before the claim was filed; and (2) the transfers occurred more than two years before the claim was filed.
¶20 We conclude that the District Court did not err in determining that Clark met his burden. Clark presented uncontested evidence that Gulf and Security knew that Clark resided in Flathead County at the time the original indemnity agreement was entered in 1993. Further, Clark presented uncontested evidence that Gulf and Security, in late 1995 and 1996, hired private investigators to locate Clark for the purpose of establishing personal service in the underlying action. At that time, investigators confirmed his address in Big Fork-which is described as a ranch-but were unable to personally locate him. It is uncontested that all five transfers of property at issue had recently been recorded in Flathead County at that time, and could easily have been discovered with a reasonable amount of diligence.
¶21 Added to the foregoing is the glaring fact that Gulf and Security have failed to assert precisely when they discovered the transfers, or otherwise argue when they could have reasonably discovered the transfers, in relation to bringing their UFTA claim in July of 1999. Further, oddly enough, they have not contested the order of the District Court on these statutory grounds. Finally, it is beyond dispute that the UFTA claim here was filed more than two years after the transfers, which extinguishes any claims pursuant to the more stringent statute of limitations under § 31-2-341(1), (2) and (3), MCA.
¶22 Accordingly, based on our de novo review, we hold that the District Court did not err when it concluded that the transfers could have been reasonably discovered more than one year prior to Gulf and Security bringing this claim in 1999.
¶23 Despite the explicit requirements under UFTA, Gulf and Security nevertheless contend that as a matter of law and of public policy the statute of limitations should not have commenced in this action until they obtained the default judgment against Clark in August of 1997 in California.
¶24 As far as the law is concerned, Gulf and Security vigorously argue under the mistaken assumption that a creditor may not assert an UFTA claim until after the underlying judgment is entered. This persistent assumption represents a fundamental misunderstanding of the law under UFTA.
¶25 Gulf and Security base their theory on our decision in Murphy v. Atkinson (1993), 262 Mont. 164, 864 P.2d 273, as well as a recent appellate court decision from California, Cortez v. Vogt (Cal.Ct.App. 1997), 60 Cal.Rptr.2d 841, 853-54 (holding that, in view of legislative statements of policy and purpose of the UFTA as a “cumulative and additional remedy,” limitation period did not commence until debtor-creditor relationship existed after judgment was made final). In Murphy, we determined that a cause of action for a fraudulent conveyance does not accrue, and therefore the statutory period does not begin to run, until a judgment is obtained. See Murphy, 262 Mont. at 168-69, 864 P.2d at 275-76 (relying on Finch v. Kent (1900), 24 Mont. 268, 279, 61 P. 653, 658 (action for “creditors’ bill”), and § 27-2-203, MCA, which provides statute of limitation for fraud).
¶26 Gulf and Security are correct to the extent that prior to this state’s adoption of UFTA in 1991, the statute of limitations for fraudulent conveyances brought under the now repealed Uniform Fraudulent Conveyance Act (§§ 31-2-301 through 325, MCA) was supplied by the general rule for fraud under § 27-2-203, MCA, which provides that the two-year period prescribed for such an action accrues upon the discovery by the aggrieved party of the facts constituting the fraud or mistake. See Murphy, 262 Mont. at 168-69, 864 P.2d at 275-76. See also Eskridge v. Nalls (Okla.Ct.App. 1993), 852 P.2d 818, 820-21 (fraudulent transfer made prior to state’s 1986 adoption of UFTA governed by statute of limitations under prior law). The underlying reasoning of our decision in Murphy was that until a money judgment was entered in favor of a creditor, the creditor did not have a legal right-i. e., standing-to bring a fraudulent conveyance claim against the debtor. See Murphy, 262 Mont. at 168, 864 P.2d at 275-76 (stating that requiring judgment creditor to “file suit within two years of the recording of the transfer would have required that suit be filed before they had a right to do so”). See also Eskridge, 852 P.2d at 820 (creditor had no standing to bring an action prior to judgment under pre-UFTA statute of limitations for fraud).
¶27 In light of the foregoing, Gulf and Security proclaim that they are “entitled to rely on the rule of law” in this case, and if this Court “is now inclined to reverse this rule of law, it should do so prospectively, so that Gulf and Clark are not penalized for their reliance on the law as its exists.” We agree with Gulf and Security that they are entitled to rely on the rule of law.
¶28 Therefore, we agree with Clark and the District Court that once our Legislature adopted the current UFTA in 1991, Murphy, in conjunction with § 27-2-203, MCA, was no longer the “rule of law” concerning the statute of limitations for bringing a fraudulent transfer claim. See UFTA § 9, 7A U.L.A. 359 (1999) (recommending that the new 1984 statute of limitations should be four years after the transfer is made and providing comment that its purpose “is to make clear that lapse of the statutory periods prescribed by the section bars the right and not merely the remedy”) (emphasis added). If Gulf and Security had properly shepardized Murphy, or run a similar citation check in any number of legal databases, this manifest occurrence would have been revealed. Our preliminary research into this matter, for example, turned up an on-point 1996 Montana bankruptcy court decision which is noticeably absent from the parties’ briefs. See, e.g., Womack v. Eggebrecht (Bankr. D.Mont. 1996) 191 B.R. 851, 857-58 (ruling that “neither the Murphy holding nor § 27-2-203, MCA, apply to actions under the recently enacted UFTA” and applying October 1991 enactment of UFTA to alleged fraudulent transfers made in December 1991).
¶29 Contrary to Gulf and Security’s argument, therefore, a judgment in hand is not a legal prerequisite for establishing standing to bring an UFTA claim. The statute is quite explicit on this point. The logical progression flows as follows: first, under § 31-2-339(1), MCA, “a creditor” may obtain relief “against a transfer” under the act as prescribed under subparts (a) through (c); next, under § 31-2-328(4), MCA, the term “creditor” means a person who has a “claim”; and, finally, under § 31-2-328(3), MCA, the term “claim” means “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured, or unsecured” (emphasis added).
¶30 Accordingly, UFTA clearly altered if not broadened the' “accrual upon judgment” rule addressed by this Court in Murphy, and permits the diligent creditor to pursue its ancillary remedy long before a judgment is entered. Contrary to Gulf and Security’s strained assertions, not attaining standing to contest a known transfer until a judgment is in hand-which may take years-can hardly be construed as a boon to creditors. To the contrary, as § 31-2-340, MCA, makes clear, once the first transferee transfers the asset to a second transferee, the only remedy left to the creditor may be an equivalent-value money judgment against the fraudulent parties for the assets transferred. Thus, UFTA affords the diligent creditor one more opportunity to freeze a debtor’s assets before a judgment is entered, and then execute in satisfaction of the judgment at a later time. See § 31-2-339(2), MCA. See also § 1-3-218, MCA (stating maxim that the law helps the vigilant before those who sleep on their rights).
¶31 Aside from the clear mandate under UFTÁ, Gulf and Security nevertheless contend on public policy grounds that unless the statute of limitation period is tolled during the underlying case that establishes one party’s right as a creditor, the UFTA “actually encourages fraudulent transfers of the type that are alleged to have occurred in this case.” We fail to see the merit in this assertion for a number of reasons.
¶32 First, all that is required to toll the statute of limitations is the filing of a complaint. That, then, affords the creditor, pending the outcome of the underlying claim, a potential three-year leeway period under Rule 41(e), M.R.Civ.P. See § 27-2-102(l)(b), MCA (providing that for the purposes of statutes of limitations, an action is commenced when the complaint is filed).
¶33 Next, it is not clear why a special public policy exception should be carved from an otherwise explicit statute to accommodate a creditor who acquires knowledge of a transfer and then waits, without reasonable explanation, for more than one year to file his complaint.
¶34 This Court also looks with disfavor on a public policy argument that clearly misconstrues the underlying intent of a uniform act. Here, Gulf and Security suggest that the UFTA commissioners’ Prefatory Note reveals that “[t]he law governing limitations on actions to avoid fraudulent transfers among the states is unclear and full of diversity” and uses this comment to buttress its contention that, due to an alleged split among jurisdictions that have adopted UFTA, we should look favorably upon a more creditor-friendly interpretation as provided under the Cortez decision. See UFTA, Prefatory Note, 7A U.L.A. 271 (1999). The commissioners’ subsequent comments under the statute of limitations provision reveal, however, that the reference to “unclear and full of diversity” is a condition that the adoption of an explicit statute of limitations under the 1984 UFTA was intended to correct. The comments provide that “this section [§ 9, which is codified as § 31-2-341, MCA] should mitigate the uncertainty and diversity that have characterized the decisions applying statutes of limitations to actions to fraudulent transfers and obligations.” See UFTA § 9 cmt.2, 7A U.L.A. 359 (1999).
¶35 Finally, however compelling Gulf and Security’s public policy argument may seem, it must be placed in its proper, broader context of available remedies under Montana law. Montana law governing the creditor-debtor relationship hardly binds the hands of the diligent creditor in favor of the evasive debtor. To the contrary, in addition to UFTA, the law provides creditors with numerous viable ancillary remedies.
¶36 For example, a creditor may seek an injunction. See § 27-19-201(4), MCA (providing that when it appears that the adverse party, during the pendency of the action, threatens or is about to remove or to dispose of the adverse party’s property with intent to defraud the applicant, an injunction order may be granted to restrain the removal or disposition).
¶37 Also, it is not uncommon for the diligent creditor in actions based in contract, pursuant to § 27-18-101, MCA, to seek a pre-judgment writ of attachment. Such a writ, which may be issued with the summons, secures a defendant’s property, both real and personal, “for the satisfaction of any judgment that may be recovered.” See § 27-181201, MCA.
¶38 With a judgment in hand, as is the case here, a creditor has at a minimum six years to execute on the judgment. See §§ 25-13-101 and 102, MCA. Property subject to an execution includes “[sjhares and interest in any corporation or company, debts and credits, and all other property, both real and personal, or any interest in either real or personal property....” See § 25-13-501, MCA. If such an execution is returned unsatisfied “in whole or in part,” the judgment creditor is then “entitled to an order from a judge of the court requiring such judgment debtor to appear and answer concerning his property....” See § 25-14-101, MCA. '
¶39 Similarly, if, to the “satisfaction of a judge of the court that any judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment,” the judgment debtor may be ordered to appear and “such proceedings may thereupon be had for the application of the property of the judgment debtor toward the satisfaction of the judgment ....” See § 25-14-102, MCA. Also, upon “proof, by affidavit or otherwise, to the satisfaction of the judge that any person or corporation has property of such judgment debtor or is indebted to him in an amount exceeding $50, the judge may, by an order, require such person or corporation or any officer or member thereof to appear at a specified time and place before him... an answer concerning the same.” See § 25-14-103, MCA. Then, if it appears that the person or corporation alleged to have property of the judgment debtor or to be indebted to him claims an interest in the property adverse to him or denies the debt, “the court or judge may authorize ... the judgment creditor to institute an action against such person or corporation for the recovery of such interest or debt... and the court or judge may, by order, forbid a transfer or other disposition of such interest or debt until an action can be commenced and prosecuted to judgment.” See § 25-14-104, MCA.
¶40 Finally, a judge may “order any property of a judgment debtor, not exempt from execution, in the hands of such debtor or any other person or due to the judgment debtor, to be applied toward the satisfaction of the judgment.” See § 25-14-107, MCA.
¶41 Other potential remedies for the judgment creditor include the constructive trust and the equitable lien. See § 72-33-219, MCA (providing that a constructive trust arises when “a person holding title to property is subject to an equitable duty to convey it to another on the ground that the person holding title would be unjustly enriched if he were permitted to retain it”); Rase v. Castle Mountain Ranch, Inc. (1981), 193 Mont. 209, 222, 631 P.2d 680, 687 (affirming imposition of equitable lien and stating that a court of equity has all of the power requisite to render justice between the parties, particularly if the intent and disposition of one of the parties is not to perform his contractual obligations).
¶42 Thus, Montana’s UFTA may be relied upon as a supplement to the foregoing or other similar remedies, as-perhaps-a more convenient and effective means to void questionable property transfers and stem the likelihood of further transfers by the debtor or a subsequent transferee. As § 31-2-342, MCA, makes clear, by no means is an action under UFTA an exclusive remedy. See § 31-2-342, MCA (providing that unless displaced by provisions under UFTA, “the principles of law and equity ... supplement its provisions”). To this end we observe that although another remedy at equity or law may be available-one which may in fact accrue at the time judgment is entered-UFTA clearly stands on its own unambiguous terms.
¶43 We therefore conclude that, contrary to Gulf and Security’s argument, the legal remedy available to the creditor in Murphy, brought under the now repealed Uniform Fraudulent Conveyance Act, is no longer available because that right was displaced by UFTA, which carries a clear, explicit statute of limitations. To this extent we join other jurisdictions which have criticized the ultimate determination of the California court in Cortez. See, e.g., Levy v. Markal Sales Corp. (Ill.App.Ct. 2000), 724 N.E.2d 1008, 1012 (stating that “[ajlthough a creditor may elect to pursue his claim to judgment before instituting a fraudulent transfer action, he does so at the risk of losing his right to relief,” and citing with approval Intili v. DiGiorgio (N.J.Sup.Ct.Ch.Div. 1997), 693 A.2d 573, 577, for the proposition that UFTA expressly limits a creditor’s right to set aside a transfer to the time period in the statute, notwithstanding the date a party obtains a final judgment).
¶44 Finally, although resolving a question of law, we must nevertheless narrowly draw our holding to encompass only the underlying facts. To this end, we observe that although the District Court concluded that Gulf and Security could reasonably have discovered the five real estate transfers “at anytime following the date of recording,” we do not confirm this as an absolute rule. The act of recording a transfer of real property in and of itself does not absolutely establish that a creditor has acquired actual or constructive knowledge of a transfer. Rather, we conclude that the “reasonable discovery” of the transfer is a discretionary ruling, one that must be adjudicated on a case-by-case basis.
¶45 Accordingly, the order of the District Court granting summary judgment in favor of Clark is affirmed.
CHIEF JUSTICE GRAY, JUSTICES TRIEWEILER, COTTER and REGNIER concur.
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] |
On March 20, 2000, the defendant was sentenced to four (4) years in the Montana State Prison.
On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Nik Geranios. The state was not represented.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (§46-18-904(3), MCA).
Done in open Court this 24th day of August, 2000.
DATED this 11th day of September, 2000.
The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Scott Radford (Radford) appeals, on constitutional grounds, a decision of the Eighth Judicial District Court, Cascade County, which affirmed his conviction of the misdemeanor offense of failure to obtain a Safety Inspection Certificate for his law office. We affirm.
¶2 The sole issue on appeal is whether the City of Great Falls (Great Falls), Montana, ordinance requiring Radford to obtain a Safety Inspection Certificate for his law office unconstitutionally impinges on this Court's power to regulate attorneys.
¶3 In 1995, Great Falls adopted a city ordinance requiring each business in the city to obtain an annual Safety Inspection Certificate (Certificate) “to ensure that the building, store, or office complies with uniform safety codes and other ordinances and regulations enacted for the purpose of protecting the health, safety, and welfare of the public.” Great Falls City Code § 5.02.100. The ordinance further authorizes a Certificate fee.
¶4 Radford is a licensed attorney who has a business office in Great Falls. In February of 1998, he was cited for failure to obtain a Certificate for his law office. Radford moved to dismiss the charge in the Great Falls Municipal Court (Municipal Court) on the basis that attorneys are licensed and regulated by the Montana Supreme Court and the Certificate requirement impermissibly subjected him to city licensing. The Municipal Court denied Radford's motion to dismiss and found him guilty of failure to obtain the Certificate. Radford was fined $105 plus a $15 surcharge.
¶5 Radford appealed the denial of his motion to dismiss to the District Court. The District Court also denied the motion. Radford appeals.
Discussion
¶6 Does the Great Falls ordinance requiring Radford to obtain a Certificate for his law office unconstitutionally impinge on this Court's power to regulate attorneys?
¶7 Because the motion to dismiss was denied as a matter of constitutional law, our standard of review is whether the District Court's decision was correct. State v. Butler, 1999 MT 70, ¶ 7, 294 Mont. 17, ¶ 7, 977 P.2d 1000, ¶ 7.
¶8 Radford points out that this Court possesses the constitutional authority to regulate Montana attorneys in their profession. See Art. VII, § 2, Mont. Const. He argues the Certificate requirement is unconstitutional as applied to attorneys under Harlen v. City of Helena (1984), 208 Mont. 45, 676 P.2d 191.
¶9 In Harlen, we concluded that an ordinance enacted by the City of Helena, Montana, which required attorneys, along with other businesspeople, to obtain an annual city business license was invalid because it infringed on our constitutional authority to supervise and regulate attorneys and the practice of law under Article VII, Section 2 of Montana's Constitution. Harlen, 208 Mont. at 49, 676 P.2d at 193. We noted several problems with the Helena ordinance:
[T]he language of the ordinance goes much further than the City probably intended. Section 18, for example, makes it abundantly clear that a person or persons may not carry on a profession or occupation without procuring the license and paying the appropriate fee. Section 11 broadly defines the scope of the City's police powers, such that attorneys could theoretically be subjected to future ordinances affecting standards of practice. Finally, Section 7 provides for revocation of the license for “a violation of any of the provisions of [the Helena City Code] ... or any State or Federal Statute.” When read in conjunction with Section 18, it is clear that the City could prohibit an attorney from practicing his profession if his license was revoked for any reason mentioned in Section 7.
Harlen, 208 Mont. at 50-51, 676 P.2d at 193-94. Based on these problems, we held that, “[d]espite its original intent, the City has adopted an ordinance which conditions an attorney's access to the practice of law. As such, the ordinance intrudes upon this Court's constitutional authority,” Harlen, 208 Mont. at 51, 676 P.2d at 194.
¶10 The problems with the Helena ordinance at issue in Harlen are not present here. The penalty for failure to renew a Certificate is authorized at Great Falls City Code § 5.01.070:
Late charge. A. Failure to renew the certificate or special license shall result in a delinquent charge as determined by resolution.
B. Each day that any violation of this chapter occurs or continues may constitute a separate offense and may be punishable as a separate violation.
(Emphasis added.) Great Falls concedes that the penalty for violation of its ordinance is limited to a fine or up to six months in jail. The Great Falls City Code additionally directs:
“Safety Inspection Certificate” is a certificate for a premise or occupation at a specific premise acknowledging inspection for uniform safety codes or other ordinances and regulations enacted for the purpose of protecting health, safety, and welfare of the public. The certificate is not intended, and shall not be used, to regulate or infringe upon the conduct of a business or profession!.]
Section 5.01.010(H), Great Falls City Code. Clearly, under its ordinance, Great Falls could not prohibit an attorney from practicing his or her profession as a result of violating the Certificate requirement.
¶11 Moreover, we have clearly recognized since Harten that “the fact that this Court has the exclusive authority to regulate the practice of law does not mean that the legislature cannot, in certain limited circumstances, act in this area.” Kradolfer v. Smith (1990), 246 Mont. 210, 214, 805 P.2d 1266, 1269. There, we determined that an annual $25 state license tax on attorneys was a reasonable amount to cover the .costs of processing licenses for attorneys and maintaining the list of attorneys licensed to practice law in this State, and was a “minimal and inoffensive intrusion upon this Court's constitutional prerogative.” Kradolfer, 246 Mont. at 215, 805 P.2d at 1269.
¶12 Similarly, the amount required to obtain the Great Falls Certificate pursuant to City of Great Falls License and Certificate Fee Resolution 8762, which varies according to the square footage of the business, represents a reasonable amount in relation to the safety inspection services as authorized by § 7-1-4123(7), MCA. On this record, we conclude that application of the Certificate requirement to Great Falls law offices represents a minimal and inoffensive intrusion on this Court's constitutional prerogative to reguiate attorneys.
¶13 We hold Radford has not established that the Great Falls Certificate requirement unconstitutionally impinges upon this Court's power to regulate attorneys.
¶14 Affirmed.
JUSTICES NELSON, TRIEWÉILER, REGNIER and LEAPHART concur.
|
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] |
On May 3, 2000, the defendant was sentenced to a thirteen (13) month commitment to the Department of Corrections, followed by four (4) years of supervised probation.
On September 22, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was not present, but was represented by Steve Eschenbacher. The state was not represented.
Before hearing the application, the defendant's attorney was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant's attorney was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant's attorney acknowledged that he understood this and stated that he wished to proceed on behalf of the defendant.
Done in open Court this 22nd day of September, 2000.
DATED this 16th day of October, 2000.
It is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed, with the amendment that the fine of $10,000 may have a credit applied to it for up to $5,000 which the defendant verifies she has paid to the classes of creditors listed in her Pre-Sentence Investigation Report, which include banks, credit cards, and doctors. This option is for debts accrued prior to sentencing.
The reasons for the amendment are that the defendant is fairly uneducated, she has significant debts, and the Board did not deem it equitable to have the fine used to deprive other citizens and creditors of payment. On the other hand, if the defendant makes a diligent effort to pay off those creditors and also to pay off this fine, but is unable to do so, she can present that evidence to the judge if a petition to revoke is filed and be excused. In other respects, none of the Board members can say that the sentence or the fine as imposed is clearly excessive under the circumstances, particularly where the defendant did sell the vehicle and received $3,100 that would have been subject to forfeiture at sentencing, and did so only two (2) weeks prior to her sentencing.
Acting Chairwoman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. G. Todd Baugh.
|
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On February 14,2000, the defendant was sentenced to five (5) years in the Montana State Prison.
On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Nik Gerardos. The state was not represented.
Before hearing the application, .the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
It is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed, with the amendment that the defendant receive credit for successful probation time from August 9, 1998, through February 22, 1999, after which he was found to be in violation of his probation.
The reasons for this' amendment are that the defendant did not violate any laws during that period of time, that have been established before this Court; and also that the defendant did suffer a severe head injury during this same time period and was receiving treatment.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
On December 22, 1999, the defendant was sentenced to the following: Count I: life in the Montana State Prison; and Count II: seventy-five (75) years in the Montana State Prison, to run consecutively to the sentence imposed in Count I.
On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant was present and was represented by Larry Mansch. The state was represented by Geoffrey Mahar.
Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.
Done in open Court this 24th day of August, 2000.
DATED this 11th day of September, 2000.
Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." (§46-18-904(3), MCA).
The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.
Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Acting Chairwoman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. John Whelan.
|
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] |
On October 13,1999, the defendant was sentenced to a thirteen (13) month commitment to the Department of Corrections, followed by four (4) years of supervised probation.
On April 14, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.
The defendant failed to appear for the hearing and was not represented by counsel. The state was not represented.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be continued to the next meeting of the Sentence Review Board at the Montana Women's Prison; thus allowing the defendant an opportunity to submit cause as to why she did not appear before the Board as previously scheduled, and to advise the Board of whether or not she would like to go forward with a sentence review hearing.
Chairman, Hon. Marge Johnson, Member, Hon. David Cybulski, Member, Hon. Robert Boyd.
|
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-29,
12,
11,
-59,
-42,
2,
-31,
49,
-30,
33,
-17,
19,
-1,
59,
-9,
-47,
-67,
6,
-1,
86,
26,
-72,
-44,
-5,
-27,
-26,
-3,
-30,
89,
27,
-59,
25,
-30,
10,
-49,
27,
10,
-18,
37,
-59,
-48,
19,
-2
] |
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