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On October 1, 1999, the defendant was sentenced to twenty (20) years in the Montana State Prison, to be served concurrently with the judgments rendered in Yellowstone County in Cause Numbers: DC-98-938, DC-98-1005; and DC-98-1006.
Done in open Court this 24th day of August, 2000.
DATED this 11th day of September, 2000.
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.
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, Member, Hon. David Cybulski.
|
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] |
On March 29, 2000, the defendant was sentenced to ten (10) years in the Montana State Prison, with five (5) years suspended.
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 not represented.
The Defendant having been duly informed of the amended judgment 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 ten (10) year commitment to the Department of Corrections, with five (5) years suspended.
Hon. Ted L. Mizner, District Court Judge
|
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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 CDC-96-250.
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 J ohnson, Member, Hon. David Cybulski, Alt. Member, Hon. Robert Boyd.
|
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] |
On December 6,1988, the defendant was sentenced to the following: Count I: one hundred (100) years in the Montana State Prison; for the use of a weapon in the commission of the offense, the defendant was sentenced to ten (10) years in the Montana State Prison; Count II; • twenty (20) years in the Montana State Prison; for the use of a weapon in the commission of the offense, the defendant was sentenced to ten (10) years in the Montana State Prison; Count III: one hundred (100) years in the Montana State Prison; for the use of a weapon in the commission of the offense, the defendant was sentenced to ten (10) years in the Montana Prison. All of the sentences are to run consecutively, for a total .of 250 years. The defendant was also sentenced to a term of one hundred (100) years in the Montana State Prison as a persistent felony offender, that sentence to run consecutive to the previously imposed sentence, for a total of 350 years in the Montana State Prison. The defendant is ineligible for parole or for supervised release from the prison.
On March 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 represented by Randi Hood. The state was represented by Mike McGrath.
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.
DATED this 3rd day of March, 2000.
Rule 17 of the Rules of the Sentence Review Division provides: "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." (Section 45-18-904(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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Done in open Court this 2nd day of March, 2000.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
On May 15, 2000, the defendant was sentenced to a ten (10) year commitment to the Department of Corrections, with five (5) years suspended.
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 present and was represented by Alice Kennedy. 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 did not wish to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
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 Russell Eugene Worrall appeals from the judgment entered by the Twelfth Judicial District Court, Chouteau County, on his guilty plea to thé offense of criminal manufacture or production of dangerous drugs (marijuana). Having reserved the right to do so, Worrall specifically appeals the court's denial of his motion to suppress evidence. We affirm.
¶2 The sole issue is whether the District Court erred in concluding that probable cause supported the issuance of a search warrant for Worrall's property.
¶3 We set forth the facts of this case in State v. Worrall, 1999 MT 55, 293 Mont. 439, 976 P.2d 968 (Worrall I). Briefly stated, Worrall was charged with three drug-related offenses after preteen boys reported to their parents and the Chouteau County Sheriff s Department that they had entered Worrall's property to hunt snakes and saw what they believed to be marijuana plants. A search warrant was issued for the property and the subsequent search resulted in criminal charges against Worrall. After the District Court denied his motion to suppress the evidence from the search, Worrall pled guilty to the criminal manufacture or production of dangerous drugs charge, reserving his right to appeal the court's denial of his motion to suppress.
¶4 One issue in Worrall I was whether the district court erred in determining Worrall had failed to prove that the application for a search warrant contained material false statements made knowingly, intentionally, or with reckless disregard for the truth. Worrall I, ¶ 24. The issue arose from discrepancies between the officer's statements in the application for the search warrant and the boys' testimony at the hearing on Worrall’s motion to suppress. Worrall argued that the officer's statements which conflicted with the boys' testimony were false and, if they were excised from the search warrant application, insufficient information would remain to establish probable cause for the issuance of the search warrant. We adopted a new burden of proof which does not require a defendant to prove that a
person providing false information in the application for a search warrant did so knowingly, intentionally, or with a reckless disregard for the truth before those false statements may be excised.
Worrall I, ¶ 34. We ultimately remanded the case to allow the district court to reconsider Worrall's motion to suppress, viewing “with distrust” any of the investigating officer's statements in the application for a search warrant allegedly made by the boys but not supported by a tangible record of those statements. Worrall I, ¶¶ 55, 59.
¶5 On remand, the parties stipulated that the District Court could decide the case based on the record from the original hearing on Worrall's motion to suppress and further briefing. In its subsequent order, the court stated it viewed with distrust the officer's recitation of what the boys told him and excised those portions of the application for the search warrant. The court noted, however, that “[n]o similar limitation is placed on the Court in evaluating the testimony of [the boys].”
¶6 The District Court found the following facts to be true:
1. Erik, an 11 year old boy, knew and could identify a marijuana plant. He had seen a real or false marijuana plant at his aunt's house and pictures on cigarette lighters.
2. Erik saw and reported to [Deputy] Burdock that there were marijuana plants growing on Worrall's property.
3. Erik appeared sincere when meeting with the deputy. He had not previously been in trouble in Fort Benton.
4. Erik voluntarily went to law enforcement in Fort Benton to report what he perceived to be criminal activity.
Based on these facts from the application for a search warrant which were consistent with the boys' testimony, the District Court concluded probable cause existed and the search warrant was properly issued. As a result, it denied Worrall's motion to suppress. Worrall appeals.
Discussion
¶7 Did the District Court err in concluding that probable cause supported the issuance of a search warrant for Worrall's property?
¶8 A judge shall issue a search warrant upon sworn application that:
1) states facts sufficient to support probable cause to believe that an offense has been committed;
(2) states fact sufficient to support probable cause to believe that evidence, contraband, or persons connected with the offense may be found;
(3) particularly describes the place, object, or persons to be searched; and
(4) particularly describes who or what is to be seized.
Section 46-5-221, MCA. Worrall argues that in this case the “scant” information from a juvenile citizen informant fails to establish the requisite probable cause under § 46-5-221(1), MCA, to believe he was committing an offense..
¶9 Probable cause must be determined exclusively from the four corners of the search warrant application and is based on a determination of whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. “Probable cause requires a determination that there is a probability of criminal activity.” State v. Kuneff, 1998 MT 287, ¶¶ 21-22, 291 Mont. 474, ¶¶ 21-22, 970 P.2d 556, ¶¶ 21-22 (citations omitted).
¶10 In Kuneff, this Court made a de novo determination that probable cause to issue a search warrant still existed after we excised from the affidavit information deemed improper. We are not required to make such a de novo ruling here because in Worrall I, we remanded to allow the District Court to conduct a de novo hearing and then make a ruling on Worrall's motion to suppress. Worrall I, ¶ 59. In this second appeal, Worrall does not argue for any further excisions from the affidavit or that the District Court considered anything it should not have considered. Therefore, our standard of review is to determine whether there was a substantial basis for concluding that probable cause existed. See State v. Adams (1997), 284 Mont. 25, 35, 943 P.2d 955, 961.
¶11 Worrall compares this case to Adams and State v. Rinehart (1993), 262 Mont. 204, 864 P.2d 1219. Citing the citizen informants' information in those cases about indoor marijuana grow operations and, in Rinehart, about the defendant's marijuana distribution system (Adams, 284 Mont. at 27-28, 943 P.2d at 956-57; Rinehart, 262 Mont. at 209, 864 P.2d at 1221-22), he contends that, unlike the evidence in those cases, the evidence in this case does not include sufficient “probative force.”
¶12 The State correctly points out that, because this case did not involve an indoor grow operation, the informants could not report details of such an operation as did the informants in Adams and Rinehart. Moreover, because the boys did not observe distribution of marijuana, they could not report distribution methods, as did the informant in Rinehart. Thus, while the evidence in Adams and Rinehart certainly was more extensive than the evidence here, the circumstances in those cases were significantly different. Nor does Adams or Rinehart hold-or even suggest-that the quantum or quality of the evidence therein is a prerequisite to a probable cause determination.
¶13 Returning to the case at hand, Worrall argues that statements of a mere boy-Erik-are not sufficiently reliable to serve as the sole basis for the issuance of a search warrant. This argument is refuted by our decision .in Worrall I.
¶14 There, Worrall argued that the unproven statements of a child informant were not a sufficiently reliable basis for a search warrant. He did not, however, challenge the competency of the' child informants at the suppression hearing. See Worrall I, ¶¶ 19-20. We stated:
The search warrant application related that Erik personally observed marijuana plants on Worrall's property, that he recognized the plants as marijuana, and that he knew the difference between marijuana plants and tomato plants. These assertions were sufficient to demonstrate the reasonable probability that Erik's information was reliable and not merely speculative.
Worrall I, ¶ 21. We concluded Erik's statement did not need corroboration by law enforcement officers because Erik was not an anonymous informant and the information he provided was based on personal observation, not hearsay. Worrall I, ¶ 22 (citations omitted). We held that the unproven statements of a child informant such as Erik may serve as the sole basis for issuance of a search warrant. Worrall I, ¶ 23.
¶15 Worrall does not challenge the truthfulness of any of the remaining unexcised facts in the warrant application which the District Court considered on remand. Erik personally observed marijuana plants on Worrall's property, recognized the plants as marijuana and knew what marijuana plants looked like. That Erik appeared sincere, had not previously been in trouble, and voluntarily went to the sheriff s office to report his observations provided the District Court with further support for the reliability of Erik's statements, which are presumed reliable in any event. See Kuneff, ¶ 24.
¶16 We conclude the facts determined by the District Court to be true and not disputed by Worrall, considered under all the circumstances, form a substantial basis for concluding that probable cause supported the issuance of a search warrant for Worrall's property. We hold, therefore, that the District Court properly denied Worrall's motion to suppress following its de novo review on remand.
¶17 Affirmed.
JUSTICES NELSON, LEAPHART, REGNIER and TRIEWEILER concur.
|
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Defendant Gary St. John (St. John) appeals froni the District Court’s judgment entered July 8,1999, following his conviction by plea of guilty to the offense of felony escape, in violation of § 45-7-306, MCA. The District Court sentenced St. John to a term of two years in the custody of the Department of Corrections, this sentence to run consecutively to the term of imprisonment which St. John was already serving. We affirm.
ISSUES
¶2 On appeal St. John raises four issues:
¶3 1. Whether the District Court erred by failing to consider sentencing alternatives other than imprisonment.
¶4 2. Whether the District Court erred by failing to conform its reasons for imposing the sentence announced orally from the bench with its written judgment.
¶5 3. Whether the State breached its plea agreement by failing to honor promises allegedly made by federal agents.
¶6 4. Whether trial counsel was ineffective for failing to preserve sentencing issues for appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶7 On September 22,1996, while serving a prison term for burglary and criminal mischief convictions, St. John escaped from the Missoula Pre-Release Center. He surrendered to law enforcement authorities in Butte, Montana, on February 7, 1999. St. John was charged with felony escape on February 18,1999, by the Powell County Attorney. St. John was appointed defense counsel.
¶8 Several months later, St. John signed an “Acknowledgment of Waiver of Rights by Alford Plea of Guilty” as part of a plea agreement wherein he agreed to plead guilty in exchange for the State’s recommendation of a two-year sentence to the Department of Corrections, this sentence to run consecutively with St. John’s underlying sentence. St. John reserved his right to argue for a reduced sentence at the sentencing hearing.
¶9 At the sentencing hearing, St. John argued for a concurrent sentence. Also, his mother claimed that an FBI agent named Kennedy told her that if St. John returned to custody he would receive only an additional “couple of months” of imprisonment. St. John maintains that, at least in part, he acted on this representation.
¶10 In any event, upon the close of the sentencing hearing, the court, as noted above, sentenced St. John to two years with the Department of Corrections to run consecutively with his previous sentence. St. John timely appealed. After filing an Anders brief, trial counsel withdrew and, pursuant to an order of this Court, new counsel was appointed to represent St. John in this appeal.
STANDARD OF REVIEW
¶11 Our review of criminal sentencing questions is guided by two principles. We review a criminal sentence only for legality. And, we review questions of law de novo to determine whether the court's interpretation of the law is correct. State v. Johnson, 2000 MT 290, ¶ 13, 302 Mont. 265, ¶ 13, 14 P.3d 480, ¶ 13 (citations omitted).
DISCUSSION
¶12 St. John argues that, as a non-violent offender, the District Court erred when it sentenced him to an additional two-year term with the Department of Corrections without first weighing the various sentencing alternatives set out at § 46-18-225, MCA. St. John also argues that the District Court erred by failing to set forth its reasons for rejecting an alternative sentence and by failing to mention in its written judgment that it was imposing the sentence because it desired St. John to receive the same sentence the court had imposed on other similarly situated inmates. Finally, St. John argues that he did not receive effective assistance of counsel because his trial attorney failed to seek enforcement of the alleged promises made by the FBI and because his counsel failed to enter any sentencing objections.
¶13 We will address each of St. John’s issues in turn.
Issue 1
¶14 Whether the District Court erred by failing to consider sentencing alternatives other than imprisonment.
¶15 St. John first argues that the court erred by failing to consider sentencing alternatives to imprisonment, pursuant to § 46-18-225, MCA. The State responds that because St. John failed to object to the District Court’s failure to consider sentencing alternatives, St. John is now barred from raising this issue on appeal. We agree with the State.
¶16 Our review of the record reveals that St. John did not object to the District Court’s failure to consider sentencing alternatives under § 46-18-225, MCA, nor did he request reconsideration of the court’s sentence under § 46-18-117, MCA .
¶17 Section 46-20-104(2), MCA, provides that an appellant waives all errors to which he does not object at trial. Section 46-20-701(2), MCA, allows three narrow exceptions to this rule, none of which apply under the circumstances here.
¶18 More to the point, we have previously refused to review whether a district court failed to consider alternatives to imprisonment when this issue was not preserved by being first raised in the district court. State v. Harper (1997), 284 Mont. 185, 189, 943 P.2d 1255, 1257; State v. Goulet (1996), 277 Mont. 308, 311-12, 921 P.2d 1245, 1247; State v. Nelson (1995), 274 Mont. 11, 19-20, 906 P.2d 663, 667-68.
¶19 Notwithstanding, St. John appears to argue that we should address this claim under our inherent, discretionary power of “plain error” review. See State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. We decline to do so. We engage in plain error review only where the claim of error implicates a criminal defendant's fundamental constitutional rights and only in circumstances where failing to review the error might result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial or proceedings, or compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at 215. Moreover, we use this inherent power sparingly, on a case-by-case basis, Finley, 276 Mont. at 138, 915 P.2d at 215, and only in “exceptional cases,” taking into consideration “the totality of circumstances of each case,” State v. Brown, 1999 MT 31, ¶ 12, 293 Mont. 268, ¶ 12, 975 P.2d 321, ¶ 12.
¶20 St. John fails to meet these strict standards. His arguments for application of this doctrine are contained in a single conclusory sentence, unsupported by analysis or authority. Accordingly, it is inappropriate that we consider his plain error argument further. See Rule 23(a)(4), M.R.App.P.; Johansen v. State Dept. of Natural Resources, 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d 653, ¶ 24 (it is not this Court's obligation to conduct legal research on a party's behalf, guess at the party's precise position, or develop a legal analysis which may lend support to that position).
¶21 Therefore, based on the foregoing authorities, we decline to review this claim of error further.
Issue 2
¶22 Whether the District Court erred by failing to conform its reasons for imposing the sentence announced orally from the bench with its written judgment.
¶23 St. John next argues that the District Court failed to set forth the same reasons for its sentence pronounced in open court as the court set forth in its written judgment. We note that the variation at issue does not go to the term of commitment, but only to the reasons for imposing sentence.
¶24 As with his claim that the court failed to consider sentencing alternatives, St. John failed to raise this issue before the District Court. As a result, the State argues that we should refuse to consider St. John’s claim of error as it is being reused for the first time on appeal.
¶25 In spite of the State's position, however, we have previously held that we will review any sentence imposed in a criminal case if it is alleged that such sentence is illegal or exceeds statutory mandates-even if no objection was made at the time of sentencing. Nelson, 274 Mont. at 18, 906 P.2d at 667 (citations omitted). For purposes of this appeal, we deem St. John's argument to be that the court's imposition of sentence was unlawful.
¶26 In Johnson, we discussed at some length the question of whether any portion of a subsequent written judgment that fails to conform or in some manner conflicts with an oral sentence renders the written judgment unlawful by reason of the inconsistency. After reviewing the development of Montana’s case authority on this issue, we concluded that to answer this question we need only determine two things: first, whether the defendant was afforded the opportunity to respond to the inconsistent matter in the written judgment upon sufficient notice at sentencing; and, second, whether that portion of the written judgment substantively increased either the defendant’s loss of liberty or, the defendant’s sacrifice of property. Johnson, ¶ 24.
¶27 In the case at bar St. John was afforded a full sentencing hearing with the opportunity to testify and to call witnesses on his behalf. St. John, in fact, did testify on his own behalf and did call a supporting witness. While Montana law requires the sentencing court to .state all of the reasons for its sentence (see § 46-18-115(6), MCA and § 46-18-102(3)(b), MCA), nonetheless, we have not required a district court to give an extensive statement of its sentencing reasons. Goulet, 277 Mont. at 310, 921 P.2d at 1246.
¶28 In the court’s oral pronouncement of sentence the court stated that it had considered the nature of St. John’s offense; the fact that he turned himself into the authorities; and his good time situation and past criminal record in making its decision. In its written judgment the court did not state these reasons, but, rather, stated that it had considered the need to protect society during the term of St. John’s incarceration; the possibilities of his being rehabilitated; and the fact that his conduct jeopardized the Low Security Program for other inmates. Admittedly, the court's sentencing reasons pronounced orally varied from those it expressed in its written judgment.
¶29 Importantly, however, the court sentenced St. John to two years with the Department of Corrections to run consecutively with his previous sentence in both the oral pronouncement of sentence and in the written judgment. The fact that the District Court articulated different reasons for sentencing in the oral pronouncement of sentence from those in the written judgment neither increased St. John’s loss of liberty nor his sacrifice of property. Johnson, ¶ 24. Accordingly, under the test articulated in Johnson we conclude that the subsequent written judgment imposed by the District Court in the case at bar was not unlawful.
¶30 Moreover, despite the court's failure to set forth the same reasons for imposing sentence in both the oral pronouncement and the written judgment, St. John has failed to demonstrate that he has been prejudiced. He received the same sentence-a term of two years with the Department of Corrections, to be served consecutively to his existing sentence-in both instances. See § 46-1-103(3), MCA (“Any irregularity in a proceeding specified by [Title 46] that does not affect the substantial rights of the accused must be disregarded.”).
¶31 Therefore, we decline to disturb the written judgment entered by the District Court in this case.
Issue 3
¶32 Whether the State breached its plea agreement by failing to honor promises allegedly made by federal agents.
¶33 St. John next claims that the prosecutor failed to abide by a purported agreement between himself and the State for his surrender to authorities. Again, St. John claims that this purported breach entitles him to re-sentencing under the terms of the agreement.
¶34 For the same reasons that we discussed under Issue 1, we decline to review this issue on appeal. St. John did not make this argument before the District Court nor did he file any post-judgment motion asking the court to reconsider his sentence. The District Court had no opportunity to address this claim of error, and accordingly, St. John is barred from raising this issue on appeal. Section 46-20-104, MCA; State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321.
Issue 4
¶35 Whether trial counsel was ineffective for failing to preserve sentencing issues for appeal.
¶36 Finally, St. John claims that his counsel’s failure to preserve Issues 1,2 and 3 for appeal constitutes ineffective assistance of counsel which should excuse these waivers.
¶37 In deciding ineffective assistance of counsel claims, we have adopted the two-prong test from Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. Under this test the defendant bears the burden of showing that counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064; State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185. Second, the defendant must show that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different-i.e., that the defendant was prejudiced by counsel’s errors. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Strickler v. Greene (1999), 527 U.S. 263, 291, 119 S.Ct. 1936, 1953, 144 L.Ed.2d 286.
¶38 The prejudice prong of the Strickland test focuses on whether counsel’s deficient performance renders the trial result unreliable or the proceeding fundamentally unfair. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The presumption is that counsel has rendered adequate assistance and has made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. Accord State v. Langford (1991), 248 Mont. 420, 432-33, 813 P.2d 936, 946. Defense counsel’s use of objections lies within his or her sound discretion. State v. Baker (1995), 272 Mont. 273, 284, 901 P.2d 54, 60, cert denied, 516 U.S. 1125, 116 S.Ct. 940, 133 L.Ed.2d 865 (1996). Finally, a defendant claiming ineffective assistance of counsel must ground his or her proof on facts within the record and not on mere conclusory allegations. State v. Hurlbert (1988), 232 Mont. 115, 120, 756 P.2d 1110, 1113.
¶39 We turn, then, to the application of these standards to the issues already discussed.
¶40 First, as to St. John’s allegation that his trial counsel was ineffective for failing to object to the court’s not considering sentencing alternatives, the record is silent as to why St. John’s counsel failed to act in the challenged manner. When the record does not provide the basis for the challenged acts or omissions of counsel, a defendant claiming ineffective assistance of counsel more appropriately makes his claims in a petition for postconviction relief. See State v. Bromgard (1995), 273 Mont. 20, 23, 901 P.2d 611, 613; State v. Black (1995), 270 Mont. 329, 338, 891 P.2d 1162, 1167-68; State v. Courchene (1992), 256 Mont. 381, 389, 847 P.2d 271, 276; State v. Black (1990), 245 Mont. 39, 43, 798 P.2d 530, 532-33. Accordingly, because we cannot address this aspect of St. John’s ineffective assistance of counsel claim without considering matters outside the record, we decline to review this issue further. See State v. Henry (1995), 271 Mont. 491, 496, 898 P.2d 1195, 1198, cert. denied, 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed.2d 730 (1996).
¶41 Second, as to St. John’s claim of inconsistency between the oral and written sentencing pronouncement, we have previously concluded that the written judgment is not unlawful and that St. John was not prejudiced. Thus, St. John has failed to state a claim of ineffective assistance of counsel as to this issue.
¶42 Finally, St. John’s broad, conclusory allegation that counsel was ineffective by failing to seek to hold the State to an alleged bargain regarding his surrender is entirely unsupported by the record. There is absolutely nothing in the record before us which even hints at State misconduct. Indeed, the evidence is entirely to the contrary. Assuming, arguendo, that Agent Kennedy made the statement to St. John's mother to which she testified-i.e., that if St. John surrendered he would “only get a .couple of months,’’-the evidence presented at the sentencing hearing was clear that the State had nothing to do with this representation being made, ñor was the State even made aware of this statement prior to St. John's surrender. Again, St. John’s conclusory statements of prosecutorial misconduct-ánd hence, ineffective assistance of counsel by his attorney's failing to make an issue of that alleged misconduct-fails to satisfy the Strickland standard. See State v. Tome (1987), 228 Mont. 398, 403, 742 P.2d 479, 482; Hurlbert, 232 Mont. at 120, 756 P.2d at 1113.
CONCLUSION
¶43 Based upon the foregoing, we find no reversible error in any of the four issues raised by St. John on appeal. Accordingly, the District Court’s sentence is affirmed.
JUSTICES TRIEWEILER, REGNIER and LEAPHART concur.
This statutes provides: “The court may correct an erroneous sentence or disposition at any time and may correct a sentence imposed in an illegal manner within 120 days after the sentence is imposed or after remand from an appellate court.”
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Kade Krause (Krause) appeals from the final parenting determination of the Montana Fifth Judicial District Court, granting primary custody of his son to the boy’s mother, Julie Sisk (Sisk). Krause contends that the District Court’s appointment and use of a guardian ad litem violated his due process rights as a parent. We affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Krause and Sisk lived together in Jackson, Montana, but were never married. The subject of the custody proceeding, John Remington Krause (John), is their infant son. The couple had what was described as a volatile relationship, and in July of 1999 Sisk moved to Michigan, taking John with her.
¶3 Krause immediately retained counsel and filed an ex parte petition for a parenting determination pursuant to § 40-4-220(2)(a), MCA. The District Court temporarily adopted Krause’s interim parenting plan, granted him temporary custody of his son and set the matter for a hearing. Sisk filed motions for appointment of a guardian ad litem and to quash the interim parenting plan. Three days later, the District Court appointed Mary Shafaieh (Shafaieh), a local volunteer, to serve as guardian ad litem. She was instructed to conduct interviews and recommend an appropriate parenting plan.
¶4 The District Court conducted a hearing on August 31, 1999, although the parties disagree as to whether this was a show cause hearing on the interim parenting plan or an evidentiary hearing for a final parenting determination. Both Krause and Sisk were represented by counsel and each called a number of witnesses. The guardian ad litem was also present. Although neither party asked her to testify, she apparently gave the District Court a preliminary recommendation in chambers. At the conclusion of the hearing, the District Court issued a temporary order vacating its interim parenting plan for thirty days and approving Sisk’s interim parenting plan for the same period. It also ordered Shafaieh to provide copies of her final report to the parties within ten days and directed the parties to submit proposed findings of fact, conclusions of law and orders no more than 20 days thereafter. The District Court declared that, upon submission of the final report and proposed findings, the matter would be deemed submitted for a final decision.
¶5 The guardian filed her report with the District Court on September 10, 1999. In it she expressed a concern that Krause may “have a short temper and low tolerance for stressful situations.” Noting that Sisk had a stable environment and a good support system with family members in Michigan, Shafaieh recommended that the child remain with his mother. Krause and Sisk each received a copy of the report.
¶6 Following release of the report, Krause sought discovery of the guardian ad litem’s records and filed motions to terminate Shafaieh and appoint a new guardian. The District Court denied the attempted discovery as well as both motions.
DISCUSSION
¶7 Krause couches most of his issues in terms of due process violations. However, in large part, his due process claims merely allege that the District Court either made incorrect discretionary rulings or misapplied the law. Where appropriate, we haye restated the issues in those terms.
¶8 Issue 1. Did the District Court err when it appointed a lay volunteer as guardian ad litem without a prior hearing?
¶9 Characterizing the guardian ad litem as an expert witness, Krause argues that the District Court erred by appointing a “lay volunteer with no experience or qualifications” and by making the appointment without first providing him an opportunity to examine or contest her qualifications. He contends that he should have been allowed ten days in which to respond to Julie’s motion for appointment and that he was entitled to a hearing on the matter.
¶10 A. Did the District Court err by appointing a lay volunteer to act as guardian ad litem?
¶11 Krause likens a guardian ad litem to an expert witness and contends that a lay volunteer is unqualified to serve in that capacity. He argues that the District Court committed reversible error by appointing a citizen volunteer with “no known or disclosed experience or qualifications ... and who could not have qualified to testify as an expert witness with respect to her recommendations or opinions.” This view fundamentally misconstrues the role of the guardian ad litem in a child custody proceeding.
¶12 A guardian ad litem is an officer of the court, assigned to represent the interests of a minor. Therefore, selection of a guardian ad litem is a matter which is committed largely to the discretion of the appointing judge. This Court will interfere with the exercise of that discretion only in a case of clear abuse. Matter of Watson (1997), 283 Mont. 57, 60, 939 P.2d 982, 984 (citing Matter of Nelson (1983), 204 Mont. 90, 94, 663 P.2d 316, 318).
¶13 Montana law provides few restrictions on the court’s discretion to choose a guardian ad litem. Generally, the court may appoint any person whose appointment would be in the best interests of the child. See § 72-5-223, MCA. There is no requirement that the person appointed even be a wholly disinterested or neutral person. Watson, 283 Mont. at 61, 939 P.2d at 985. The only specific requirement is that the person appointed must not have interests adverse to those of the child. Watson, 283 Mont. at 60, 939 P.2d at 984. Although Krause sought to terminate the guardian and strike her report, he has never alleged, either to the District Court or to this Court on appeal, that the guardian ad litem was unqualified under this standard.
¶14 Krause’s argument, in fact, is not addressed so much to the guardian’s qualifications as it is to the conclusions in her report. He argues that the report contains inaccuracies and that the guardian ad litem “failed to disclose her work product to the parties as required by law.” These are serious contentions that properly should have been brought to the District Court’s attention during a final hearing-but that is a separate issue. Nonetheless, allegations about the guardian’s conclusions are not relevant to the question of whether the District Court had the authority to appoint a lay volunteer in the first instance. Krause never argues that the guardian ad litem had anything but the child’s best interests at heart or that her interests were in any way adverse to those of the child. As such, he provides this Court with no basis to conclude that the District Court abused its discretion when it appointed a lay yolunteer to act as guardian ad litem.
¶15 B. Did the District Court violate Krause’s due process rights when it appointed a guardian ad litem without a prior hearing?
¶16 Our review of constitutional questions is plenary. State v. Pritchett, 2000 MT 261, ¶ 27, 302 Mont. 1, ¶ 27,11 P.3d 539, ¶ 27 (citing State v. Anderson, 1998 MT 258, ¶ 6, 291 Mont. 242, ¶ 6, 967 P.2d 413, ¶ 6). Our standard of review for conclusions of law is whether the trial judge’s interpretation of the law is correct. In re A.R.A. (1996), 277 Mont. 66, 70, 919 P.2d 388, 391.
¶17 Montana law permits a court to appoint a guardian ad litem to represent the interests of a minor dependent child. Section 40-4-205(1), MCA. This appointment may be made by the court on motion of either parent or by the court on its own motion. See Commissioner’s Note to § 40-4-205(1), MCA. Krause concedes that the District Court has authority to appoint a guardian ad litem on its own motion but contends that the District Court should have afforded him an opportunity for a hearing and that, when it did not do so, it violated his right to due process under Article II, Section 17, of the Montana Constitution and under the Fourteenth Amendment to the United States Constitution.
¶18 Krause argues that both the Montana and United States constitutions provide that no person shall be deprived of liberty without due process of law; that parents have a protected liberty interest in the care, custody and management of their children; and that due process requires both notice and a hearing. This argument is well-taken, as far as it goes, but Krause fails to argue or provide any authority for the necessary premise of his challenge-that by appointing a guardian ad litem, the District Court in some way, deprived him of a fundamental liberty.
¶19 This Court has consistently held that parents have a liberty interest in the custody of their children. However, absent any showing that appointment of a guardian ad litem somehow infringes upon this fundamental interest, we cannot override the District Court’s clear statutory authority to appoint a guardian ad litem on its own motion.
¶20 Issue 2. Did the District Court err by not allowing the parties access to the data and reports of the guardian ad litem prior to the custody hearing?
¶21 The District Court appointed the guardian ad litem on August 23, 1999, just seven days before the temporary custody hearing. The guardian did not file her final written report with the District Court and the parties until September 10, 1999. After the August 31, 1999 hearing but before the District Court issued its final ruling, Krause sent a discovery request to the guardian ad litem which included interrogatories directed toward her qualifications and to studies or reference materials she relied upon in forming her recommendation to the court. Sisk objected to this discovery, arguing that, as the temporary custody hearing had already been held and proposed findings had been submitted by both parties, further discovery served no useful purpose. The District Court ruled that the guardian was not subject to discovery and denied the request.
¶22 Generally, district courts have substantial discretion to control discovery. Anderson v. Werner, 1998 MT 333, ¶ 13, 292 Mont. 284, ¶ 13, 972 P.2d 806, ¶ 13. Krause argues that, in this case, the scope of that discretion is defined by § 40-4-215, MCA, which specifically compels release of the reports and data of a guardian ad litem. Sisk responds that this provision applies only to professional investigations by counselors, social workers and doctors and not to guardians ad litem. We disagree with Sisk’s interpretation of the statute.
¶23 Section 40-4-215, MCA, provides:
(1) If... the court finds that a parenting proceeding is contested, the court may order an investigation and report concerning parenting arrangements for the child. The investigator may be the child’s guardian ad litem ....
(4) The court shall mail the investigator’s report to counsel and to any party not represented by counsel at least 10 days prior to the hearing. When consistent with state and federal law, the investigator shall make available to counsel and to any party not represented by counsel the investigator’s file of underlying data and reports, complete texts of diagnostic reports made to the investigator pursuant to the provisions of subsection (3), and the names and addresses of all persons whom the investigator has consulted,
¶24 The District Court, when it appointed the guardian ad' litem, directed her to “conduct interviews with both parties and other relevant witnesses” and to “make a recommendation to the Court regarding a parenting plan.” Having been ordered by the District Court to make an investigation and report, § 40-4-215(4), MCA, requires that the guardian disclose her data, underlying reports, and names of persons consulted, to the extent that release of that information is consistent with state and federal law.
¶25 Despite the statute’s provision that the investigator, to whom the subsequent disclosure requirements apply, “may be a guardian ad litem,” Sisk asserts that § 40-4-215, MCA, is inapplicable. She notes that our reported cases applying § 40-4-215, MCA, all deal with professionals other than guardians ad /¿fern-social workers, counselors and doctors-and concludes, on that basis, that the reporting requirements are applicable only to those professionals. We disagree.
¶26 First, the absence of case law is not, generally, authority for the proposition that a statute does not apply to a particular category of persons — especially when the clear language of the statute indicates otherwise. Second, none of the cases cited by Sisk address the question of the type of investigator to which the'disclosure provision applies. Sisk is correct that the limited number of our reported cases dealing with the application of § 40-4-215, MCA, all deal with investigations conducted by social workers and other professionals. However, none of these cases hold that § 40-4-215, MCA, only applies to social workers, counselors and doctors and not to guardians ad litem. In contrast, the statute clearly declares that the investigator, to whom the disclosure requirement applies, may be a guardian ad litem.
¶27 Sisk contends next that, since the guardian ad litem was appointed under § 40-4-205, MCA, which does not contain the disclosure requirements of § 40-4-215, MCA, no disclosure is required. This argument is unconvincing. Section 40-4-205, MCA, authorizes the court to appoint a guardian ad litem. That it does not address disclosure of a guardian’s reports does not mean that disclosure is not required. It only means that the section does not address the issue.
¶28 We conclude, based on the plain language of the statute, that the disclosure requirements of § 40-4-215, MCA, apply to court-appointed guardians ad litem. When consistent with state and federal law, the guardian’s reports, data and persons consulted must be disclosed to the párties at least ten days prior to a hearing on the matter. We hold, therefore, that the District Court abused its discretion when it denied Krause access to this information. Because this provision requires that the information be released at least ten days prior to a hearing on the matter, we are ordering the District Court to order release of the statutorily-required information and to conduct a final evidentiary hearing on custody no fewer than ten days thereafter. We note that § 40-4-215, MCA, does not require disclosure of information on the guardian's qualifications and experience. It remains within the discretion of the trial judge to order or limit discovery of such information.
¶29 Issue 3. Did the District Court improperly use confidential criminal justice information?
¶30 After the hearing but before the District Court issued its final decision, local law enforcement officers cited Krause for DUI. After learning of the incident, the District Court directed Shafaieh to investigate and prepare a supplemental report. Shafaieh investigated and reported that Krause had been cited for DUI and that a blood test taken after the incident indicated a blood alcohol level in excess of the legal limit. The District Court considered this information and incorporated it into its final findings of fact, conclusions of law and order.
¶31 Krause states his issue on appeal as whether the “District Court err[ed] by specifically requesting the consideration of confidential criminal justice information not properly in the record?” It is not clear from his argument whether he considers it improper for the District Court to have directed the guardian to acquire this information, for the District Court to have considered it in reaching its final custody decision, or both. In any case, he provides no authority for either contention and, on that basis, we decline to address the issue.
¶32 The argument portion of an appellate brief must contain the contentions of the appellant with respect to the issues presented with citations to the authorities relied on. Rule 23(a)(4), M.R.App.P. This Court has repeatedly held that we will not consider unsupported issues or arguments. See In re Pfennigs, 1999 MT 250, ¶ 32, 296 Mont. 242, ¶ 32, 989 P.2d 327, ¶ 32, and the cases cited therein.
¶33 Instead of addressing the stated issue, Krause argues that, by publishing information about Krause’s DUI citation and excessive blood alcohol level in a nonconfidential order, the District Court violated provisions of the Montana Criminal Justice Information Act of 1979 (Act). This Act prohibits “dissemination” of “confidential criminal justice information” except under conditions designed to balance the public’s right to know with the privacy interests of the parties involved. See § 44-5-303, MCA. Sisk responds that the Act authorizes the court to disseminate “criminal history information” when it finds it necessary to do so. See § 44-5-302, MCA. Neither Krause nor Sisk address the meaning of the relevant definitions or their applicability to the DUI information at issue here. Other than asserting that their favored rule is applicable, neither cites any authority for their respective conclusions.
¶34 Analysis of this issue properly requires an inquiry into the meaning of “criminal history information” versus “confidential criminal justice information;” whether the information at issue here fits either of those definitions; whether the District Court’s inclusion of that information in a nonconfidential order constitutes “dissemination” as that term is defined by law; whether the District Court’s action satisfied the procedural requirements of the statute; and whether the court appropriately weighed the relevant privacy and disclosure interests involved. Not one of these questions is addressed in the parties’ arguments, and this Court declines to supply the missing analysis.
¶35 Issue 4. Did the District Court err when it considered the temporary recommendations of the guardian ad litem following a hearing in which the guardian did not testify or present her recommendations to the parties?
¶36 The guardian did not testify or make any oral recommendations in open court during the hearing on August 31, 1999. Instead, she made a confidential report to the judge immediately afterwards. Krause contends that this procedure violated his due process rights. The crux of Krause’s complaint is not that he was denied an opportunity to examine the guardian; she was available to testify at the hearing and could have been called by either party. Rather, he asserts that, without access to the guardian’s report and sources prior to the hearing, he had no basis upon which to conduct a meaningful examination. Since we have addressed this issue above and concluded that he was entitled to this information prior to the hearing, we need not consider it further.
¶37 Issue 5. Did the District Court err by failing to conduct a final evidentiary hearing?
¶38 Krause argues that the purpose of the August 31, 1999 hearing was to show cause why the District Court’s interim parenting plan should not remain in effect until a final parenting determination. He contends that by resolving the merits of his petition for a final parenting plan at a hearing held to determine temporary custody, the District Court denied him an opportunity to be heard and that this was a violation of his due process rights. Having already determined that Krause is entitled to his discovery and a new hearing on other grounds, we decline to address the merits of this issue.
¶39 We affirm in part, reverse in part and remand to the District Court for discovery consistent with this opinion and for a final evidentiary hearing and parenting determination.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and TRIEWEILER concur.
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On May 10, 2000, the defendant was sentenced to a ten (10) year commitment to the Department of Corrections, with five (5) years suspended.
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 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 this case be remanded to the district court for the appointment of a public defender to represent the defendant before the Sentence Review Board. This hearing is continued to the first meeting of the Board, at the Montana State Prison, in 2001.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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] |
On March 3, 2000, the defendant was sentenced to the following: Count I: Fifty (50) years in the Montana State Prison, with forty (40) years suspended; Count II: Ten (10) years in the Montana State Prison, to rim concurrently with Count I.
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 represented by Alice Kennedy. 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 this hearing be continued, thus allowing Ms. Kennedy an opportunity to obtain a copy of the sentencing transcript in this matter.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 This is an appeal from the judgment of the First Judicial District Court awarding pre-judgment interest and costs to respondents following our remand and notice of remittitur in a prior appeal. We reverse the District Court’s award of prejudgment interest and affirm its award of costs.
BACKGROUND
¶2 This suit arises out of a contract dispute between the Montana Department of Transportation (Department) and a number contractors employed by the Department on a highway construction project (Contractors). The Department withheld certain payments as a penalty, and the Contractors sued to recover these payments. Following a bench trial, the District Court entered judgment in favor of the Contractors in the amount of $319,823.00 for the withheld payments, attorneys’ fees, costs and pre- and postjudgment interest. The Department tendered full payment under protest and appealed the District Court’s judgment.
¶3 This Court reversed and issued notice of remittitur to the District Court. Thereafter, the District Court entered judgment ordering the Contractors to reimburse the $319,823.00 and pay costs in the amount of $6,771.03. In addition, the District Court ordered the Contractors to pay interest on the $319,823.00, accruing from the date the Department tendered payment. The Contractors reimbursed the $319,823.00 and paid $51,546.27 in postjudgment interest and costs. They refused, however, to pay any prejudgment interest for the period between August 7, 1998, when they received the money from the Department, and January 6,2000, when the District Court entered its final judgment ordering them to make reimbursement. The Contractors appealed, seeking review of the District Court’s award of costs and prejudgment interest and raising the following issues:
¶4 1. Did the District Court err when it ordered the Contractors to pay prejudgment interest on money they received from the Department?
¶5 2. Did the District Court err when it awarded presettlement offer costs to the Department?
DISCUSSION
¶6 Issue 1. Did the District Court err when it ordered the Contractors to pay prejudgment interest on money they received from the Department?
¶7 The Contractors argue, as a matter of law, that the District Court may not award prejudgment interest on reimbursement payments. The Department characterized the reimbursement payment as “damages” and argued to the District Court and to this Court on appeal, that it is entitled to interest under § 27-1-211, MCA. We disagree and conclude that the District Court erred when it ordered the Contractors to pay prejudgment interest on the reimbursement.
¶8 We review a District Court’s interpretation of the law for correctness. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. The Department argues that it is entitled to interest payments under § 27-1-211, MCA. That section provides:
Every person who is entitled to recover damages ... is entitled also to recover interest thereon .... [Emphasis added.]
The question, then, is whether court-ordered reimbursement payments are “damages” for the purpose of this section. We have previously held that they are not. Heine v. Siebert (1985), 217 Mont. 224, 228, 703 P.2d 865, 868. ’
¶9 In Heine, we held that § 27-1-211, MCA, does not authorize an award of prejudgment interest on a reimbursement payment:
The... issue is whether [the purchaser] should have been awarded prejudgment interest on the accounts payable which he had paid after his default, pursuant to § 27-1-211, MCA. ... The District Court held, and correctly so, that prejudgment interest under that statute applies only to an award of damages, and that the award in this case to [the purchaser] was one of reimbursement, not damages. [Emphasis added.]
Heine, 217 Mont. at 228, 703 P.2d at 868. Like Heine, this case deals with reimbursement, not damages. When it ordered reimbursement, the District Court was not making an award of damages. It was merely ordering repayment of funds that, by virtue of our reversal of the original action, the Contractors were no longer entitled to retain. Section 27-1-211, MCA, because it applies only to damages, does not grant authority for the District Court to order payment of prejudgment interest on reimbursements. We conclude, therefore, that the District Court incorrectly determined that the Department was entitled to prejudgment interest on the reimbursement payment.
¶10 Issue 2. Did the District Court err when it awarded presettlement offer costs to the Department?
¶11 Following our remand and remittitur, the Department filed a memorandum claiming costs of $6,771.03. The Contractors did not object to payment of the Department’s legitimate costs of appeal but contested the District Court’s authority, under Rule 68, M.R.Civ.P., to impose any of the pretrial costs specified in the Department’s memorandum. They also argued that costs of certain depositions were not recoverable because these depositions were never used at trial. After briefing on the issue, the District Court awarded costs to the Department in the full amount requested.
¶12 Generally, courts may, in their discretion, impose and apportion allowable costs between the parties. Section 25-10-103, MCA. However, the issue in this case is not whether the District Court abused its discretion in awarding costs, but whether the presettlement offer and deposition costs it awarded were of the type allowed. This is a question of law which we review for correctness. Carbon County, 271 Mont. at 469, 898 P.2d at 686.
¶13 A. Does Rule 68, M.R.Civ.P., prohibit the District Court from imposing presettlement offer costs against the Contractors ?
¶14 The Department made a pretrial offer of settlement on May 8, 1997. The Contractors rejected this offer and were later subject to a less favorable judgment. They argue that, under these circumstances, Rule 68, M.R.Civ.P., limits allowable costs to those incurred after the offer of settlement. The Department counters that Rule 68, M.R.Civ.P., mandates imposition of postoffer costs but does not preclude imposition of other preoffer costs of the type at issue in this case. We agree.
¶15 Rule 68, M.R.Civ.P., does not restrict the court’s ability to impose preoffer costs. The rule provides only that where a settlement offer has been made and rejected prior to trial, and the subsequent judgment was not more favorable to the offeree, then the offeree must pay postoffer costs:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer of judgment to be taken against the defending party.... If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. [Emphasis added.]
Mandating award of postoffer costs is not the same as prohibiting the award of preoffer costs. An award of preoffer costs is within the general discretion of the court under § 25-10-103, MCA, and the Contractors have made no argument suggesting that the District Court abused that discretion. We conclude, therefore, that the Contractors’ Rule 68, M.R.Civ.P., argument is without merit.
¶16 B. Did the District Court impose costs that were not allowable as a matter of law?
¶17 The Department’s memorandum of costs includes charges for depositions, copies of videotapes, printing of the Department’s appellate briefs and a transcript of the District Court trial. The Contractors argue that the costs of certain depositions and exhibits are not allowable, as a matter of law, because those items were not used at trial. They cite Fisher v. State Farm Ins. Cos. (1997), 281 Mont. 236, 239, 934 P.2d 163, 164, for the proposition that unless an item is entered into evidence, used to impeach a witness, or somehow relied upon by the court in making its decision, it is not a recoverable cost. The Department argues that costs of the contested items are all allowable under § 25-10-201, MCA, and points out that the contested items all satisfy the rule set out in Fisher. After examining the record, we agree.
¶18 Section 25-10-201, MCA, provides that a party to whom costs are allowed is entitled to include in his bill of costs his necessary disbursements for the following items:
(1) the legal fees of witnesses, including mileage, or referees and other officers;
(2) the expenses of taking depositions;
(4) the legal fees paid for filing and recording papers and certified copies thereof used in the action or on the trial;
(7) the reasonable expenses of making transcript for the supreme court;
(9) such other reasonable and necessary expenses ....
Section 25-10-201, MCA. With regard to deposition expenses, this Court has limited recovery to the cost of those depositions used as evidence or for impeachment during trial. Fisher, 281 Mont. at 239, 934 P.2d at 164. This Court’s examination of the record indicates that all of the depositions listed in the Department’s memorandum of costs were either used for impeachment purposes or introduced into evidence at trial and are, therefore, consistent with the special limitation of Fisher. Ml of the other items listed in the Department’s memorandum of costs are allowable under § 25-10-201, MCA. Therefore, we conclude that the District Court correctly applied the law when it awarded the Department its costs in the amount of $6,771.03.
¶19 We reverse the order of the District Court awarding the Department prejudgment interest on the reimbursement payment of $319,823.00, affirm the District Court’s award of costs to the Department in the amount of $6,771.03 and remand for proceedings consistent with this opinion.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and TRIEWEILER concur.
|
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] |
On February 17,1999, the defendant was sentenced to the Montana State Prison for ten (10) years, with eight (8) years suspended.
On March 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 not present 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 dismissed.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
On December 16, 1999, the defendant was sentenced to a seven (7) year commitment to the Department of Corrections, with three (3) years suspended.
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 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 itis 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, Member, Hon. David Cybulski.
|
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On April 6,2000, the defendant was sentenced to fifty-five (55) years in the Montana State Prison, to be served consecutive to the existing Nevada and Wisconsin sentences. For the first three years of this sentence the defendant will have no telephone privileges; no visitor privileges; and no mail, except legal mail.
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, via telephone, and was represented by Patrick Gallagher. The state was represented by Elizabeth Horsman.
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.
Done in open Court this 25th day of August, 2000.
DATED this 11th day of September, 2000.
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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On October 15, 1999, the defendant was sentenced to one hundred (100) years in the Montana State Prison, plus an additional ten (10) years for the use of a weapon in the commission of the underlying offense, to run consecutively. The defendant shall be ineligible for parole or participation in a supervised release program during the entire 110-year term of imprisonment.
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, via telephone, and was represented by Brad Belke. The state was represented by Brad Newman.
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 arid 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."
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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] |
On December 21, 1999, the defendant was sentenced to a thirteen (13) month commitment to the Department of Corrections, followed by probation for period of forty-two (42) months.
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, via telephone, and was represented by Michael Klinkhammer. 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, Member, Hon. David Cybulski.
|
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On October 20,1988, the defendant was sentenced to fifty (50) years in the Women's Correctional Facility at Warm Springs, Montana, with an additional ten (10) years for the use of a weapon during the commission of the offense, to run consecutively to each other.
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 James Taylor. The state wás 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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that this sentence shall be amended to eighty (80) years in the Montana Women's Prison, with forty (40) years suspended, plus an additional ten (10) years for the use of a weapon during the commission of the underlying offense, to run consecutively to the underlying sentence.
Defendant is subject to the following conditions with respect to parole or probation:
1. The Defendant shall be under the supervision of the Adult Probation and Parole Bureau and subject to all of their rules and regulations.
2. . The Defendant shall obtain and complete a chemical dependency evaluation at her own expense and follow through with any and all recommendations thereof, including treatment and after care if such is recommended.
3. The Defendant shall complete her GED and enter and complete vocational training.
4. The Defendant shall not possess or consume alcohol and/or illicit drugs unless prescribed by a licensed physician, and may not enter or frequent any establishment where intoxicants are the chief item of sale.
5. The Defendant shall not associate with persons who engage in the consumption of alcohol and/or drugs.
6. The Defendant shall submit to random testing of her blood, breath, or other bodily fluids at the request of her supervising officer. The Defendant shall be tested at least once a month randomly for the first two years that she is in any community.
7. The Defendant shall be subject to search and seizure of her residence, person, and/or vehicle upon request of her probation officer at any time with or without a warrant, with or without probable cause.
8. The Defendant shall not own, possess, or be in control of any firearms or deadly weapons, including black powder, as defined by state or federal law.
9. The Defendant shall participate in chemical dependency treatment, aftercare, or a structured relapse prevention program throughout the entire term of this sentence. Attendance at AA/NA meetings at least 3 times per week with two sponsors, one whom has been sober at least 5 years, will satisfy this condition, as will participation in the Crossroads Recidivism Reduction Program. The Defendant shall provide her supervising officer with verification of attendance on a monthly basis.
10. Pursuant to Section 45-5-206(4), MCA, the Defendant shall pay for and complete a counseling assessment with a focus on violence, dangerousness, and chemical dependency. The Defendant must follow through with all recommendations made by the counseling provider. The counseling provider must be approved by Defendant's supervising officer. The counseling must include a counseling assessment and a minimum of 25 hours of counseling, in addition to the assessment. The counseling must be directed to the violent conduct of the Defendant. Other issues indicated by the assessment may be addressed in additional counseling beyond the minimum 25 hours.
11. The Defendant shall obtain and maintain full time employment,' perform community service, or pursue further education, or a combination of any of those on a full time basis, and shall provide verification of those activities at each supervision meeting.
12. The Defendant shall perform 200 hours of community service on a monthly schedule adopted by her supervising officer and shall pay the administrative and workers compensation fee associated with such service. This service shall be performed at the rate of at least 10 hours per month.
Done in open Court this 14th day of April, 2000.
DATED this 4th day of May, 2000.
13. The Defendant shall enter and complete a PreRelease Program and an Intensive Supervision Program.
14. The Defendant shall have no contact with any relatives of the victim of this crime.
15. The Defendant shall be jointly and severally liable for payment of restitution for funeral expenses for the victim and any counseling obtained by family members as a result of this homicide, together with the 10% restitution fee which may not, under law, exceed $250.
16. The Defendant shall pay the mandatory $120 supervision fee for each year of supervision.
17. The Defendant shall pay the mandatory $20 surcharge as to each felony charge and $15 surcharge as to each misdemeanor charge for a total due of $20.
18. The Defendant shall pay the mandatory $10 surcharge as to each charge for victim witness programs, for a total due of $10.
19. The Defendant shall pay a $5 user surcharge as to each charge for Court information technology to the original Court of jurisdiction, for a total due of $5.
20. All monies required by this ordered to be paid shall be paid through the Clerk of the District Court, Missoula County Courthouse, Missoula, Montana, in monthly payments of no less than $50.
The reasons for the amended sentence are that this was a particularly vicious offense; the needs of this defendant make it very clear that she is going to need lifelong help in order to rehabilitate; and the safety of the community requires her long-term supervision. The Defendant appears to be someone who did not receive much help in her earlier years, and was, at the time of sentencing, deemed to be amenable to treatment. The Board believes that the 40 years of committed time on the deliberate homicide conviction will allow the Defendant time to earn a right to be paroled and if she is paroled, to have an immediate recommitment which will ensure the safety of the community. The Board also believes the viciousness of this crime, and the senselessness of it, justified the ten year weapons enhancement commitment.
Chairman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. Robert Boyd.
|
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JUSTICE REGNIER
delivered, the Opinion of the Court.
¶1 Jay Burke Whipple appeals from the Judgment entered by the Fourth Judicial District Court, Missoula County, sentencing him to twenty years imprisonment on each of four counts of felony sexual assault with five years bf each sentence suspended, sentences to run concurrently. We affirm.
¶2 Whipple raises the following issues on appeal:
¶3 1. Whether the District Court erred when it allowed a physician to testify as to what the two complaining witnesses told him during his examination of them?
¶4 2. Whether the admission of testimony that allegedly bolstered the credibility of the complaining witnesses should be reviewed for plain error?
BACKGROUND
¶5 On January 8, 1998, the State charged Whipple by Information with four counts of felony sexual assault in violation of § 45-5-502, MCA. The Information alleged three instances of sexual contact with A.N.P., who was nine years old at the time of contact, and one instance of sexual contact with A.B.P., who was eight years old at the time. Whipple entered a plea of “Not Guilty” to all charges on January 9, 1998.
¶6 A jury trial was held on July 13 and 14, 1998. The State's first witness was Timothy W. Carte, M.D., a pediatrician. Dr. Carte testified that he examined A.N.P. and A.B.P. in May 1997 after their mother brought them to him to be examined for possible sexual abuse. Dr. Carte took a health history of each child and, on the basis of what they told him, decided that a further physical examination was unnecessary. During the State's examination of Dr. Carte, the court allowed Dr. Carte to testify, over a hearsay objection, as to what the children told him had occurred between themselves and Whipple. Dr. Carte also testified, without objection, as to the credibility of the children's stories.
¶7 The State then called Kirsten, the girls' mother. Kirsten testified that Whipple was her uncle, her mother's youngest brother, and that she had not had much to do with him until he moved from California to Montana in January 1996. Whipple worked the graveyard shift at a ranch near Potomac, Montana. Kirsten testified that Whipple invited the girls out to the ranch during calving to watch the calves being born. Kirsten allowed the girls to go to the ranch sometime between February and April 1996. A.N.P. went unaccompanied one night. A.B.P. went unaccompanied the following night. In early May 1996, Kirsten and her children visited Whipple at his trailerhome near Potomac. They had dinner, used the hot tub, and stayed the night. A.N.P. subsequently spent a night at Whipple's trailer after Whipple's wife and daughter moved from California. Kirsten testified that at the time, she had no reason to suspect that anything unusual occurred between Whipple and her daughters. The first time Kirsten became aware that something had happened was on Mother's Day of 1997. A.N.P. gave Kirsten a card which stated that Whipple had touched her on three separate occasions. A.B.P. also informed Kirsten that Whipple had inappropriately touched her on one occasion. Kirsten went to the police, who told her to have her daughters examined by a doctor. Lastly, Kirsten testified, without objection, that she did not believe the girls had lied about these incidents.
¶8 The State's next witness was Ramona, Kirsten's mother and Whipple's half-sister. Ramona testified that she accompanied the girls to their appointment with Dr. Carte and was present during Dr. Carte's examination of each girl. Ramona testified, without objection, that she had no reason to believe that what the girls told their mother or Dr. Carte was untrue.
¶9 The State then called A.N.P. to the stand. A.N.P., who was eleven years old at the time of trial, testified that the first incident of inappropriate touching occurred in the spring of 1996. Whipple invited her to the ranch where he worked. They checked on the cows and then watched some movies together in the basement of the ranch house. A.N.P. testified that while they were watching movies, Whipple told her to go to the couch and then he started massaging her legs. He then unbuttoned her pants, took them off, and got on top of her. A.N.P. stated that Whipple touched her vagina with his penis and his hands for about two minutes. Whipple drove A.N.P. back to Missoula, Montana, the next day. A.N.P. testified that she did not tell her mother because she did not think her mother would believe her, but she did tell her sister about the incident.
¶10 A.N.P. testified that the next incident occurred a couple of weeks later when her family was visiting Whipple at his trailerhome. A.N.P. stated that they used Whipple's hot tub, watched a T.V. show, and then went to bed in Whipple's living room. A.N.P. testified that while everyone else was sleeping, Whipple laid down next to her, took off her pajama pants, and started touching her with his penis and hands for about two minutes. A.N.P. testified that the last incident occurred about a month later at Whipple's trailer. She was staying with Whipple, Whipple's wife Sue, and Whipple's daughter Emily. A woman who was lost stopped by the trailer and asked for a ride. Sue Whipple gave the woman a ride home. While Sue was gone, Whipple took A.N.P. to his bedroom where he repeated what he had done before. A.N.P. testified that no other incidents of sexual contact occurred, and she subsequently avoided Whipple.
¶11 A.B.P., who was nine and a half years old at the time of trial, testified next. A.B.P. testified that she spent a night alone with Whipple during the spring of 1996. She and Whipple watched a movie in the basement of the ranch house. A.B.P. testified that Whipple unbuttoned her clothes and put his fingers in her vagina. A.B.P. said that Wfhipple told her that if she told her mother, he would slap her. On cross-examination, A.B.P. admitted that she did not tell Dr. Carte that Whipple put his fingers “inside her body.” A.B.P. stated that she “didn't really want to tell anybody about it” and was scared.
¶12 The State then called Myra Ducharme, a clinical social worker. Ducharme testified that she had been working with A.N.P. and A.B.P. since shortly after they reported sexual abuse to their mother. Ducharme testified, without objection, that in her experience younger children like A.N.P. and A.B.P. do not lie about sexual abuse. She also testified, again without objection, that she had no reason to believe that the girls had been untruthful..
¶13 The State's final witness was Thomas Gregory Hintz, a deputy sheriff of Missoula County. Hintz was the primary investigator on the charges against WTdpple. Hintz interviewed Kirsten and each of the girls separately. Hintz testified, without objection, that the testimony of A.N.P. and A.B.P. did not differ in any significant way from what they told him during his interviews of them.
¶14 The State rested its case. WTiipple then testified on his own behalf. WTiipple testified that both girls had spent the night at the ranch house during calving season but denied having any inappropriate contact with them. Whipple also denied having any inappropriate contact with A.N.P. on any other occasion.
¶15 Whipple's counsel then called James Meyers, a licensed clinical professional counselor. Meyers testified that he conducted a sexual offender evaluation of Whipple to determine if he fit the profile of known sexual offenders. Meyers stated that he did not see anything that would make him believe that WTiipple was a sexual offender. At the conclusion of Meyers' testimony, the defense rested its case.
¶16 On July 14, 1998, the jury returned verdicts of guilty on all four Counts. On-September 4,1998, the District Court sentenced Whipple to twenty years in the Montana State Prison on each of the four counts, the sentences to run concurrently. The court suspended five years of each sentence on certain terms and conditions. The court entered Judgment on September 16, 1998. From this judgment, WTiipple appeals.
STANDARD OF REVIEW
¶17 Whether evidence is relevant and admissible is left to the sound discretion of the district court and will not be overturned on appeal absent an abuse of that discretion. State v. Sweeney, 2000 MT 74, ¶ 13, 299 Mont. 111, ¶ 13, 999 P.2d 296, ¶ 13.
ISSUE ONE
¶18 Whether the District Court erred when it allowed a physician to testify as to what the two complaining witnesses told him during his examination of them?
¶19 Kirsten testified that after her children told her that they had been sexually abused by Whipple, she talked to a member of the Missoula Police Department who told her to have her daughters examined by a doctor before coming into the station to file a report. Kirsten brought her children to Dr. Carte to be examined for possible sexual abuse. Dr. Carte examined each child separately, and on the basis of what each child told him, determined that further physical examination was unnecessary. During the State's examination of Dr. Carte, the State asked Dr. Carte to “tell us essentially what [A.N.P.] told you had happened.” Whipple's counsel objected on the grounds that the testimony was hearsay. The State argued that Dr. Carte's testimony was admissible because “this was done for the purposes of a medical diagnosis and, secondly, that the witness will be called and will be subject to cross-examination herself.” The District Court overruled the objection and allowed Dr. Carte to testify regarding what both A.N.P. and A.B.P. had told him had occurred. The court did not state on what basis it was allowing the testimony.
¶20 Whipple contends that the District Court erred in allowing Dr. Carte to testify as to what the girls told him during his examination. Whipple argues that Dr. Carte's testimony was not admissible under the “medical treatment exception” to the hearsay rule because the girls' statements to Dr. Carte were not motivated by a desire to obtain medical treatment and the trustworthiness of their statements were not assured where they had no medical conditions which required diagnosis or treatment.
¶21 The State agrees that Dr. Carte's testimony about what the girls told him was hearsay but contends that it was admissible under the “medical treatment exception.” The State argues that Kirsten was seeking treatment for her daughters when she took them to Dr. Carte and that there was no indication that the girls were not aware that they should tell Dr. Carte the truth. The State admits, however, that A.B.P.'s testimony differs from what Dr. Carte testified she told him. A.B.P. testified that Whipple had penetrated her but she denied penetration when asked by Dr. Carte.
¶22 Rule 803(4), M.R.Evid., provides that “[sjtatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment” are admissible even though the declarant is available as a witness. To be admissible under this exception to the hearsay rule, the statements must be made with an intention that is consistent with seeking medical treatment and must be statements that would be relied upon by a doctor when making decisions regarding diagnosis or treatment. State v. Huerta (1997), 285 Mont. 245, 258, 947 P.2d 483, 491. The rationale behind the medical treatment exception to the hearsay rule is that the reliability of the out of court statements are assured by the first prong of the test. The declarant who seeks medical treatment possesses a selfish motive in telling the truth because the declarant knows that “the effectiveness of the treatment [the declarant] receives may depend largely upon the accuracy of the information [the declarant] provides.” State v. Harris (1991), 247 Mont. 405, 412-13, 808 P.2d 453, 457.
¶23 We have previously voiced concerns about the admission of hearsay statements of young children under this exception. In State v. J.C.E. (1988), 235 Mont. 264, 271, 767 P.2d 309, 314, we noted that “the rationale behind the medical treatment exception is less forceful where a very young child is concerned. The child might not comprehend the necessity of telling a doctor the truth in order to aid diagnosis and treatment.” Accord State v. Henderson (1994), 265 Mont. 454, 462, 877 P.2d 1013, 1018. In J.C.E., we refused to allow the admission of a child's hearsay statements regarding alleged incidents of sexual abuse through the testimony of a family counselor. J.C.E., 235 Mont. at 270-71, 767 P.2d at 313-14.
¶24 There are instances in which we have allowed physicians to testify as to statements made to them by youthful patients. In State v. Thompson (1993), 263 Mont. 17, 865 P.2d 1125, we upheld the admission of the testimony of an emergency room physician as to statements made by a ten-year old patient. The child had informed a teacher at her school that her stepfather had repeatedly kicked her. The teacher contacted social services and the police, who interviewed the child. The child was then taken to the emergency room because she complained of pain when she coughed and when she breathed. The emergency room physician examined the child and observed numerous bruises over her chest, back, right leg and left arm. When the physician asked the child why she was there to see him, she told him that her stepfather had kicked her numerous times. The physician noted that the bruises were 20-30 hours old and were consistent with injuries sustained from kicking. Thompson, 263 Mont. at 22, 865 P.2d at 1128.
¶25 We do not believe that the facts of the instant case contain sufficient indicia of reliability such as those present in Thompson. To be admissible under the medical treatment exception, the statements must be made with an intention that is consistent with seeking medical treatment. Huerta, 285 Mont. at 258, 947 P.2d at 491. In Thompson, the circumstances indicate that the child victim's statements were made with the intention of seeking effective treatment. The child had been taken to the hospital because she was suffering from pain when she coughed and breathed and she made the statements to her doctor in response to a question as to how she received her injuries. Thompson, 263 Mont. at 30, 865 P.2d at 1133-34. However, under the present circumstances, it does not appear A.N.P. and A.B.P.'s statements to Dr. Carte were made with an intention of seeking effective medical treatment. The children were not suffering from any physical trauma or condition which required treatment or diagnosis at the time Dr. Carte interviewed them. Instead, they were examined by Dr. Carte at the suggestion of a member of the Missoula Police Department almost a year after the incidences of sexual assault had occurred. The State did not provide the District Court nor has it provided us with any evidence which would indicate that under these circumstances the children believed they needed to tell Dr. Carte the truth in order to receive effective treatment or diagnosis.
¶26 We hold that the District Court abused its discretion in admitting Dr. Carte's testimony as to what A.N.P. and A.B.P. told him. However, “a judgment of conviction will not be reversed unless the error prejudiced or tended to prejudice the substantive rights of the • defendant.” State v. Berosik, 1999 MT 238, ¶ 20, 296 Mont. 165, ¶ 20, 988 P.2d 775, ¶ 20. We find reversible error based on prejudice to the defendant only where there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction. State v. Benson, 1999 MT 324, ¶ 22, 297 Mont. 321, ¶ 22, 992 P.2d 831, ¶ 22.
¶27 Whipple has not established that he was prejudiced by Dr. Carte's testimony. The State claims that the admission of the testimony was harmless because “[w]hat the girls said to Dr. Carte was, with one-exception, what they said at trial.” We agree. Dr. Carte's testimony was largely repetitive of the testimony of A.N.P., A.B.P., and their mother, all of which was properly admitted. See State v. Alexander (1994), 265 Mont. 192, 198, 875 P.2d 345, 349 (holding that erroneously admitted evidence was harmless because “it did not include any information that was not verified by the. victim later during the course of the trial”); see also State v. Washington (N.C. Ct. App. 1998), 506 S.E.2d 283, 288 (holding that erroneously admitted statements by non-testifying rape victim to police officers did not prejudice defendant because they were repetitive of admissible statements made by victim to other witnesses).
¶28 We conclude that although the District Court abused its discretion when admitting the statements made by A.N.P. and A.B.P. to Dr. Carte, Whipple was not harmed by that error.
ISSUE TWO
¶29 Whether the admission of testimony that allegedly bolstered the credibility of the complaining witnesses should be reviewed for plain error?
¶30 Whipple contends for the first time on appeal that the admission of the following, testimony was erroneous: Dr. Carte testified that he did not have any reason to believe that either child fabricated their allegations. Kirsten, the girls' mother, testified that “[tjheir stories have never changed” and had no réason to believe that the girls made up their allegations. Ramona., the girls' grandmother, testified that she had no reason to believe that the girls' allegations were untrue. Ducharme, the girls' counselor, testified that in her experience, “younger children don't lie about child sexual abuse, because they don't know how to.” Shé also testified that she had no indication that the girls were being untruthful. Lastly, Hintz, the primary investigating officer, testified that he was present during the girls' testimony and that their testimony did not differ in any significant way from what they told him when he first interviewed them. Whipple failed to make á contemporaneous objection to any of this testimony.
¶31 Whipple now contends that the admission of this testimony bolstered the girls' credibility and was therefore erroneous pursuant to our decision in State v. Hensley (1991), 250 Mont. 478, 821 P.2d 1029. Whipple observes that in Hensley we held that expert testimony regarding credibility was admissible in a sexual abuse case involving a young child only if the child testifies at trial, the child's credibility is brought into question, and the expert witness is properly qualified. See Hensley, 250 Mont. at 481, 821 P.2d at 1031. Whipple acknowledges that he did not make a contemporaneous objection to this testimony and does not contend that his claim of error is reviewable pursuant to § 46-20-701(2), MCA. Instead, Whipple argues that we should review his claim pursuant to State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. In this regard, Whipple contends that his “right to a fair trial was compromised by the cumulative effect of five witnesses' testimony that the complaining witnesses were credible.” Whipple insists thát the jury cannot be said to have exercised its function of determining the credibility of the complaining witnesses.
¶32 We have held that, notwithstanding the failure to object to an alleged error and the inapplicability of § 46-20-701(2), MCA, we may review a claimed error which affects fundamental constitutional rights where failing to review it may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at 215. In adopting this rule we also stated that we would “henceforth use our inherent power of common law plain error review sparingly, on a case-by-case basis, and [that we would] invoke that doctrine only in the class of cases aforementioned.” Finley, 276 Mont. at 138, 915 P.2d at 215. In order to invoke our power of review under Finley, the defendant must “demonstrate that a fundamental right constitutionally guaranteed to [the defendant] was implicated by the plain error which [the defendant] claims,” State v. Pizzichiello, 1999 MT 123, ¶ 11, 294 Mont. 436, ¶ 11, 983 P.2d 888, ¶ 11; and the defendant must “show that our failing to review the claimed error at issue would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial proceedings or compromise the integrity of the judicial process,” Pizzichiello, ¶15.
¶33 Whipple has not carried his initial burden of demonstrating that a fundamental right constitutionally guaranteed to him was implicated by the error which he claims. Whipple contends that his right to a fair trial as guaranteed by Article II, Section 24 of the Montana Constitution was “compromised.” However, an appellant who claims plain error must do more than simply point to the Constitution and insist that his or her rights were violated. Rather, the appellant's claim must be based on a specific provision. It is not obvious to us, nor was it likely obvious to the State when briefing this issue, exactly which right of Whipple's contained in Article II, Section 24 was “compromised” by the alleged error. Article II, Section 24 contains a “laundry list” of rights:
Rights of the accused. In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.
¶34 Because claims of plain error are almost invariably claims raised for the first time in a defendant's brief on appeal, a defendant must do more than simply make a generalized claim that his or her constitutional rights were violated by the alleged error. See Pizzichiello, ¶12 (observing that defendant had carried his initial burden by citing relevant federal and state authority). Otherwise, the defendant's claim is inadequately argued or not argued at all; the State is unable to respond to the defendant's arguments; and we are left completely without guidance.
¶35 Accordingly, we will continue to require that a defendant “demonstrate that a fundamental right constitutionally guaranteed to [the defendant] was implicated by the plain error which [the defendant] claims.” Pizzichiello, ¶ 11 (emphasis added). Because Whipple has not met his burden of demonstrating that a fundamental right constitutionally guaranteed to him was implicated by the allegedly erroneous admission of credibility testimony, we cannot review his claim.
¶36 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, LEAPHART and TRIEWEILER concur. ’ 1
Some commentators have been highly critical of the admission of statements by children describing abuse, contending that “doctors and social workers who interview children shortly after abuse occurs often act almost as extensions of the offices of prosecutors and police, and in some urban hospitals special areas are set aside to collect statements by abuse victims in order to qualify them under the [medical treatment] exception.” 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 442, at 464-65 (2d ed. 1994). Mueller and Kirkpatrick observe that “the criteria underlying the exception are not well-suited to appraising such statements.” Mueller & Kirkpatrick § 442, at 465.
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 Following a jury trial, the District Court, First Judicial District, Broadwater County, entered an order concluding that previous payments by Robert and Melanie Pankratz's insurer should be credited against the judgment. Karen and Doug O'Hern appeal and present the following question.
¶2 Did the District Court err in determining that medical payments made by the defendants' insurer prior to trial should be credited as voluntary payments Npursuant to § 26-1-706, MCA, against the judgment entered against the defendants?
¶3 We reverse.
BACKGROUND
¶4 On November 8,1997, plaintiff Karen O'Hern fell in the entryway of an apartment building owned by defendants Robert and Melanie Pankratz. Karen was initially treated at the emergency room at the Broadwater Health Center, Townsend, Montana. Later she was examined by her doctor who diagnosed her condition as a possible herniated disk. Approximately one month later, Karen underwent an abdominoplasty. The medical necessity of that procedure and others was disputed at trial.
¶5 On December 2, 1997, the Pankratzs' insurer, Allied Insurance Group, issued a check for $197.06 for payment of the emergency room expenses at Broadwater Health Center. On December 8, 1997, Allied wrote two checks totaling $4802.94. One of the checks, in the amount of $3500, was payable to Davis Ross, MD, as an advance payment for the abdominoplasty performed on December 9,1997. The second check, in the amount of $1302.94, was payable to Karen as reimbursement for medical expenses which she had previously incurred. The memo on the two larger checks indicates that they represented “medical payment coverage.”
¶6 On July 16, 1999, the O'Herns filed suit against the Pankratzs. Karen claimed damages for medical expenses, lost earnings, pain, suffering, emotional distress, and interference with the course of her life. Her husband, Doug O'Hern, claimed damages for loss of consortium. At trial Karen alleged medical expenses of $13,436.43.
¶7 After considering the evidence, a Broadwater jury rendered its verdict finding that Karen and the Pankratzs were each fifty percent negligent. The jury awarded O'Herns total damages of $10,154.56, including $2254.56 for Karen's medical expenses. On June 23,2000, the District Court entered judgment in favor of the O'Herns in the amount of $5401.07. The judgment amount reflected Karen's comparative negligence as determined by the jury and included costs.
¶8 In response to a post judgment motion filed by the Pankratzs, the District Court entered an order on July 7,2000, that effectively reduced the judgment by $5000. The District Court determined that the previous payments by Allied in the amount of $5000 were voluntarily paid pursuant to § 26-1-706, MCA, and should be credited against the judgment. The O'Herns appeal from this post judgment order.
STANDARD OF REVIEW
¶9 A district court's application of a credit against judgment pursuant to § 26-1-706, MCA, is a conclusion of law. We review a conclusion of law as to whether the district court's interpretation is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 456, 469, 898 P.2d 680, 686.
DISCUSSION
¶10 Did the District Court err in determining that medical payments made by the Pankratzs' insurer prior to trial should be credited as ■voluntary payments pursuant to § 26-1-706, MCA, against the judgment entered against the defendants?
¶11 The O'Herns argue that payments made by an insurer pursuant to medical payments coverage are not voluntary payments pursuant to § 26-1-706, MCA, but are subject to limitations of the collateral source reduction statute, § 27-1-308, MCA. The Pankratzs argue that the payments made to the O'Herns were voluntary partial payments of a potential future claim, and thus, pursuant to § 26-1-706, MCA, such payments should be treated as a credit against any eventual judgment,
a. Voluntary Payments
¶12 Section 26-1-706, MCA, provides in relevant part that “[ajfter entry of a judgment in an action for damages for personal injuries ... any voluntary partial payment theretofore made shall be treated as a credit against such judgment and shall be deductible from the amount of such judgment.” The Pankratzs argue that the payments made to Karen were voluntary, and thus must be credited towards the eventual judgment. We disagree.
¶13 Here, Karen received checks for medical expenses under a no-fault medical payment coverage provision in the Pankratzs' insurance policy. Notations on the checks indicated that the payments were made pursuant to “Medical Payments Coverage.” See § 33-18-201(10), MCA (requiring a statement setting forth the coverage under which payments are made.) The section of the insurance policy under which these payments were made states “[w]e will pay medical expenses ... for “bodily injury” caused by an accident.... We will make these payments regardless of fault.” (Emphasis added.) Thus, payments made under the “medical payment coverage” section of the Pankratzs' insurance policy are not voluntary payments pursuant to § 26-1-706, MCA, because Allied is contractually required to make such payments on demand.
b. Collateral Source Reduction
¶14 The collateral source reduction statute provides that in an action arising from bodily injury or death when the total award against all defendants is in excess of $50,000 and the plaintiff will be fully compensated for his damages, exclusive of court costs and attorney fees, a plaintiffs recovery must be reduced by any amount paid or payable from a collateral source that does not have a subrogation right. Section 27-1-308, MCA.
¶15 Here, the amount awarded against the defendant was less than the statutorily required amount of $50,000 that will trigger a reduction in judgment. See Liedle v. State Farm Mut. Auto. Ins Co. (1997), 283 Mont. 129, 134, 938 P.2d 1379, 1382. Thus, Karen's recovery may not be reduced pursuant to § 27-1-308, MCA.
c. Necessity of Abdominoplasty
¶16 The Pankratzs also contend that they should receive credit for the payments to Karen because the jury concluded that the abdominoplasty was not a necessary medical expense. It is true that the jury clearly determined that the abdominoplasty costs were not recoverable under the theory of tort liability litigated in the District Court. However, the insurer's obligation under the medical pay provisions of the defendants' policy was not litigated in this tort action. Medical pay provisions require payment regardless of fault. As stated above, payments under a medical pay provision are not voluntary payments that can be credited to a judgment pursuant to § 26-1-706, MCA. Such payments are contractual in nature. The jury did not consider nor decide the issue of whether the insurer was ultimately liable under the medical pay provisions of the defendants' policy and neither can we.
¶17 Reversed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, LEAPHART and TRIEWEILER concur.
|
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On March 2, 2000, the defendant was sentenced to ten (10) years in the Montana Women's Prison, with five (5) years suspended.
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 present and was represented by Everett Riggs. 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." (§46-18-904(3), MCA).
Done in open Court this 22nd day of September, 2000.
DATED this 12th day of October, 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, with the added condition of the probationary portion of the sentence that the defendant enroll in, and successfully complete a regimen of Financial Management Counseling, to be approved by her Probation Officer, at the defendant's expense.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
01-0603/27/01 Denied
Original Proceeding Habeas Corpus
|
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] |
On July 24, 2000, the defendant was sentenced to thirty (30) years in the Montana State Prison, plus an additional ten (10) years for being a persistent felony offender, to run consecutively, for a total of forty (40) years, which shall run consecutive to the sentences received in Cause Numbers DC-97-140 and DC-97-124.
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 represented by Mark McLaverty. The state was represented by Geoffrey Mahar.
The Defendant having been duly informed of the 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 tosixty (60) years in the Montana State Prison, with thirty (30) years suspended. The remainder of the sentence shall remain the same, with the conditions which Judge Langton imposed for parole also being applicable to any period of probation.
Hon. Ted L. Mizner, District Court Judge.
|
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01-042 03/06/01 Granted
Original Proceeding Habeas Corpus
|
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] |
On November 3, 1999, the defendant was sentenced to twenty (20) years in the Montana State Prison, with ten (10) years suspended, to run concurrently with Cause No. DC-94-11074 and Lewis and Clark County Cause No. BDC-99-23.
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 héaring 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, Member, Hon. David Cybulski.
|
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] |
00-434 02/15/01 Affirmed
Dist. 13 (Yellowstone)
|
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On March 22, 2000, the defendant was sentenced to ten (10) years in the Montana Women's Prison.
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 present and was represented by Dustin Gahagan. The state was not represented.
The Defendant having been duly informed of the amended judgment and commitment, and having waiver her right to appear before the ■undersigned for this pronouncement of sentence, whereupon,
IT IS ORDERED, ADJUDGED AND DECREED that the defendant is sentenced to a ten (10) year commitment to the Department of Corrections, with five (5) years suspended, with conditions as listed in the Sentence Review Board’s Decision of September 22, 2000.
Hon. Russell C. Fagg, District Court Judge.
|
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] |
On February 18,1999, the defendant was sentenced to the following: Counts II and III: Ten (10) years, on each count, in the Montana State Prison, all suspended; Count IV: Twenty (20) years in the Montana State Prison, with five (5) years suspended, to run concurrently with the sentences the defendant is serving in Missoula County Cause Numbers 11938 and 12007. The sentences imposed in Counts II and III shall run consecutively with each other and consecutively to the sentence imposed in Count IV.
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 stated that he did wish to have counsel, however, his court appointed counsel was allowed to withdraw from further representation in this matter. The state was represented by Fred VanValkenburg.
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.
Done in open Court this 2nd day of November, 2000.
DATED this 27th day of November, 2000.
It is the unanimous decision of the Sentence Review Division that this matter be remanded to the district court to determine whether or. not the defendant has a right to a sentence review hearing, based on the plea agreement, and whether or not the defendant has the right to new court appointed counsel to represent him at such a hearing, under the current circumstances.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
|
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] |
On November 15, 1999, the defendant was sentenced to a thirteen (13) month commitment to the Montana State Prison, followed by a four (4) year probationary period, plus an additional ten (10) years as a persistent felony offender. These sentences shall run concurrently with each other and concurrently with the four (4) year supervised release. The thirteen (13) month sentence and persistent felony offender sentence shall run consecutively to the sentence imposed in cause number DC-95-11881.
On March 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 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 did not wish to proceed.
Therefore, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Appellant Robert Wayne Shiplet (Shiplet) appeals from the Sixth Judicial District Court's denial of his petition for writ of review.
¶2 Shiplet was charged in Park County Justice Court with criminal misdemeanor trespass to the property of the Magalskys. Shiplet moved the. Justice Court to dismiss the criminal charges for lack of jurisdiction for the reason that, subsequent to the filing of the trespass charge, Shiplet filed a civil action in Park County District Court seeking to enjoin the Magalskys from interfering with Shiplet's purported ditch easement. In his motion to dismiss, Shiplet contended that the District Court, as opposed to the Justice Court, was the better forum to determine whether Shiplet was legally exercising his ditch rights when he was on the Magalskys’ property. When the Justice Court denied his motion to dismiss, Shiplet filed for a writ of review in the District Court. The District Court denied the petition for writ of review and Shiplet has appealed from that denial. We affirm the decision of the District Court.
¶3 The question presented by this appeal is whether the District Court abused its discretion in denying Shiplet's petition for a writ of review.
¶4 Shiplet contends that, since the District Court has jurisdiction over his civil suit for injunction and has concurrent jurisdiction over the misdemeanor trespass charge, it is the better or more convenient forum to litigate the various disputes concerning Shiplet's exercise of his ditch rights.
¶5 A writ of review is a discretionary writ issued by the Supreme Court or a district court, directed to an inferior tribunal. The purpose of the writ is to determine whether the inferior court exceeded its jurisdiction. Denial of the writ will be overturned only for an abuse of discretion. State v. McAllister (1985), 218 Mont. 196, 199, 708 P.2d 239, 241. Section 27-25-102(2), MCA, provides that a writ of review may be granted when a petitioner establishes that (1) the justice court exceeded its jurisdiction, and (2) there is no appeal or there is no plain, speedy and adequate remedy. Both tests must be satisfied, and if either or both elements are not established, then the court is without jurisdiction to issue the writ. BCPOA v. Planning & Zoning Comm'n (1995), 270 Mont. 160, 165, 890 P.2d 1268, 1271.
¶6 Shiplet's petition for a writ of review fails both of the above tests. Shiplet is charged with misdemeanor trespass, a charge which carries a fine of no more than $500 or imprisonment for a term not to exceed six months, or both. Section 45-6-203, MCA. Since the Justice Court clearly has jurisdiction over all misdemeanors punishable by a fine not exceeding $500 or imprisonment not exceeding six months, it cannot be said that the Justice Court exceeded its jurisdiction by proceeding with the trespass charge. Secondly, Shiplet has an adequate remedy of appeal from any judgment of the Justice Court. Sections 3-5-303 and 46-17-311, MCA.
¶7 In addition to not satisfying the two prerequisites for issuance of a writ of review, Shiplet's premise that the District Court has concurrent jurisdiction over the trespass charge is false. The extent of the District Court's concurrent jurisdiction is delineated in § 3-5-302(2), MCA, which provides as follows:
(2) The district court has concurrent original jurisdiction with the justice’s court in the following criminal cases amounting to misdemeanor:
(a) misdemeanors arising at the same time as and out of the same transaction as a felony or misdemeanor offense charged in district court;
(b) misdemeanors resulting from the reduction of a felony or misdemeanor offense charged in the district court; and
(c) misdemeanors resulting from a finding of a lesser included offense in a felony or misdemeanor case tried in district court.
¶8 A charge of misdemeanor trespass does not fit within any of the statutorily defined instances of concurrent jurisdiction.
¶9 The Justice Court did not exceed its jurisdiction in proceeding with the trespass charge, and the District Court did not have concurrent jurisdiction over that charge. We hold that the District Court did not abuse its discretion in denying Shiplet's petition for a writ of review.
¶10 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, NELSON and TRIEWEILER concur.
|
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] |
On August 13,1999, the defendant was sentenced to three (3) years and three (3) months to the Department of Corrections.
On March 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 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 did not wish to proceed.
Done in open Court this 2nd of March, 2000.
DATED this 28th day of March, 2000.
Therefore, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be dismissed.
Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
|
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] |
00-851 01/04/01 Denied
Original Proceeding Supervisory Control
|
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] |
On January 12, 2000, the defendant was sentenced to thirty (30) years in the Montana State Prison, with fifteen (15) years suspended.
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.
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.
Done in open Court this 24th day of August, 2000.
DATED this 11th day of September, 2000.
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 January 13,1999, the defendant was sentenced to the following: Count I: five (5) year commitment to the Department of Corrections, to run consecutively to the sentence in Count II; Count II: five (5) year commitment to the Department of Corrections, all time suspended. This sentence shall run concurrently with the sentence imposed in ADC-97-076.
Done in open Court this 14th day of April, 2000.
DATED this 4th day of May, 2000.
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 Ronald Bissell. 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. David Cybulski, Alt. Member, Hon. Robert Boyd.
The defendant and her counsel agreed to proceed with only two members of the Sentence Review Board present. Judge Johnson wás recused from this matter; Judge Langton was not available for the hearing.
|
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01-003 02/13/01 Denied
Original Proceeding Habeas Corpus
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Orlan and Trina Strom (Stroms) purchased a house from Robert and Elizabeth Logan (Logans) in Helena, Montana. The Stroms subsequently filed suit against the Logans alleging that the Logans had misrepresented that fire damage from a 1978 fire had been substantially repaired. The District Court, First Judicial District, issued judgment for the Stroms in the amount of $42,700. The Logans appeal from that judgment. We affirm the judgment.
¶2 The Logans raise the following issues on appeal:
¶3 1. Were the Stroms' claims barred by the three-year statute of limitations?
¶4 2. Did the District Court abuse its discretion in refusing to dismiss Elizabeth Logan as a party defendant?
¶5 3. Did the District Court err in finding that the Logans had no reasonable grounds to believe their representations were true?
¶6 4. Did the District Court err in failing to consider the Stroms' contributory negligence?
¶7 5. Did the District Court abuse its discretion by awarding prejudgment interest?
¶8 6. Did the District Court abuse its discretion by denying the Logans' motion for summary judgment?
Factual Background
¶9 On October 17,1994, the Stroms agreed to buy a Helena residence from the Logans. Robert Logan was a licensed real estate broker. The Stroms were purchasing their first house.
¶10 At the time of the purchase, Robert Logan orally represented to the Stroms that a fire had taken place in 1978 and that all damage had been repaired. Shortly after signing the Buy/Sell Agreement, the parties entered into a disclosure statement which indicated that there was a structural fire in the house and that the damage had been substantially repaired. The agreement also indicated that the property was subject to major fife damage. It further provided that, “the property is sold as is.”
¶11 Due to financial difficulties, the Stroms were unable to purchase the property as planned. On November 29, 1994, the parties entered into a lease and option to purchase. That document indicates that the Logans had not made any representations concerning the property and that the Stroms entered into the agreement in reliance upon their own independent inspection. Although the Stroms took possession of the property, in November 1994, title was not transferred until December 1995.
¶12 Due to a hail storm in June 1997, the Stroms had to have the roof repaired. The roof repair crew discovered that the sheeting underneath the roof and trusses underneath the sheeting had been severely damaged by fire. This was the first time the Stroms learned of the extent of the damage from the fire. At the roofer's suggestion, the Stroms had the roofing sheeting repaired at a cost of $2,700.
¶13 A structural engineer testified for the Stroms that the repairs made by Logan were of no structural benefit. Shane Martin of C&M Construction testified that it would cost $69,260 to repair the home. Martin indicated that he would have to take off the roof and trusses and the sheetrock in the interior to check all the walls for damage. For three or four months, the Stroms would not be able to occupy the house. He further testified that the repairs that had been done by the Logans were ineffectual and that the structure was not substantially repaired.
¶14 Based upon the above findings of fact, the District Court concluded that the Logans negligently misrepresented that the fire damage that occurred in 1978 had been substantially repaired. The court reasoned that the Stroms were not obligated to cut holes in the walls to determine the extent of the fire damage, and there was no easy access to the attic. The District Court determined that the $69,260 repair suggested by Martin went beyond the repair of the fire damage; that the repair of the fire damage alone would cost $40,000 plus the $2,700 the Stroms spent on new sheeting for the roof repair, for a total damage award of $42,700.
1. Were the Stroms' claims barred by the three-year statute of limitations?
¶15 The Logans contend that the Stroms' claim for negligent misrepresentation was barred by the three-year statute of limitations set forth in § 27-2-204, MCA. Although the Logans raised the statute of limitations defense in their amended answer and in the pretrial order, the District Court did not specifically rule on that issue.
¶16 The Logans contend that the statute of limitations began running in 1994 when the parties signed the disclosure statement which advised of the existence of fire damage and stated that the property was sold “as is.” Even assuming that the true condition of the house was concealed, the Logans contend that the Stroms could and should have discovered the house's true condition through the exercise of due diligence; in particular, they could have insisted upon a home inspection. The Stroms argue that they did not discover the fire damage until June 1997 when they had the roof repaired, and, as buyers, they had no duty to uncover the latent fire damage. Rather, the Logans, as the homeowner sellers, had a duty to “obtain and communicate information on the true condition of the house.” Wagner v. Cutler (1988), 232 Mont. 332, 339, 757 P.2d 779, 783. We agree.
¶17 Although the District Court did not address the statute of limitations argument, the Stroms point out that the court did conclude that, since there was no easy access to the burned area, the Stroms had no obligation to cut holes in the walls to ascertain the extent of the damage. This conclusion is consistent with our holding in Wagner, that the buyer is “under no additional duty to discover the latent defects in the house.” Wagner, 232 Mont. at 336-37, 757 P.2d at 782. Rather, the burden is on the homeowner to obtain and communicate information relating to the true condition of the home.
¶18 Where the facts constituting a claim are by their nature concealed, or where the defendant has taken action which prevents the injured party from discovering the injury or its cause, the three-year statute of limitations does not begin to run until the facts constituting the claim either were discovered or should have been discovered with due diligence. Section 27-2-102(3)(a), MCA. In the case sub judice, the fire damage was concealed behind new sheetrock. Furthermore, as noted above, due diligence did not require the Stroms to cut holes in the walls and ceilings.
¶19 We agree with the Stroms that they filed their complaint well within three years of first discovering the extent of the damage after the hail storm of June 1997.
¶20 We hold that the Stroms' claims were not barred by the statute of limitations.
2. Did the District Court abuse its discretion in refusing to dismiss Elizabeth Logan as a party defendant ?
¶21 The Logans contend that although Elizabeth Logan was a co-owner of the house, she made no oral representations as to the conditions of the house and thus she should have been dismissed as a defendant. The Stroms correctly point out that they relied upon both written and oral representations from the Logans, and the District Court so found. Elizabeth Logan was a signatory on the disclosure statement which contained representations as to the condition of the house and the repairs performed subsequent to the fire. Accordingly, she was a proper party defendant, and the District Court did not err in denying her motion to dismiss.
3. Did the District Court err in finding that• the Logans had no reasonable grounds to believe their representations were truel
¶22 The Logans note that one of the elements of the cause of action of negligent misrepresentation is that the defendant must have made the representation without any reasonable ground for believing it to be true. Mattingly v. First Bank of Lincoln (1997), 285 Mont. 209, 216, 947 P.2d 66, 70. The Logans contend that the District Court erred in finding that the Logans had no reasonable ground to believe Robert Logan's representation that the damage had been substantially repaired was true.
¶23 This Court reviews findings of a trial court to determine whether they are clearly erroneous. Rule 52(a), M.R.Civ.P. A district court's findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Engel v. Gampp, 2000 MT 17, ¶ 31, 298 Mont. 116, ¶ 31, 993 P.2d 701, ¶ 31. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be less than a preponderance. Barrett v. ASARCO, Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080.
¶24 The Logans argue that they lived in the house for some seventeen years after the fire and never experienced any problems related to the fire. However, the Stroms point out that Robert Logan conceded he was not familiar with the applicable Code requirements and that no qualified person ever inspected the work he and his son had performed on the house. The only expert testimony was from the Stroms' two witnesses: structural engineer Byron Stahley and contractor Shane Martin. Stahley testified that the repairs did not meet the Code in 1978, and the home was not structurally sound. Martin testified that it was unreasonable to represent that the damage had been substantially repaired.
¶25 Having reviewed the record, we determine that the District Court's findings, and in particular, the finding as to the falsity of the representations as to the repairs, are supported by substantial credible evidence. Based upon these findings of fact, the District Court correctly concluded that the Logans were negligent.
4. Did the District Court err in failing to consider the Stroms' contributory negligence?
¶26 The Logans contend that the Stroms, as purchasers of a home sold “as is,” and in light of the disclosure of fire damage, had an “independent obligation to act as a reasonable purchaser and secure an inspection of the property” and that their refusal to do so amounts to contributory negligence. Although the District Court did not specifically reference contributory negligence, it did conclude that there was no easy access to the attic area and the Stroms were not obligated to cut holes in the walls or ceilings to determine the extent of the fire damage. The District Court's rejection of the Logans' contentions is tantamount to a conclusion that the Stroms had no affirmative duty to inspect the property for latent defects. We turn then to the question of whether the District Court's conclusion of law is correct. .
¶27 In Wagner, the LDS church purchased a home in Gallatin County from Cutler. LDS did not occupy the house at any time. LDS then entered into a listing agreement with a realtor who listed the property with Multiple Listing Service (MLS). Based upon representations made by an MLS reáltor that the house was “well built” and “to code,” Wagner purchased the home. After taking possession, Wagner encountered numerous problems with the house, some of which were observable and some latent. She sued for misrepresentation and violation of the duty to inspect and disclose defects.
¶28 LDS contended, as do the Logans, that the “as is” and independent investigation clauses triggered the purchaser's obligation to thoroughly inspect the property to his own satisfaction and that failure to investigate bars the purchaser from any recovery. Citing Parkhill v. Fuselier (1981), 194 Mont. 415, 419, 632 P.2d 1132, 1135, we held that the independent investigation clause does not preclude justifiable reliance by a buyer upon misrepresentations of the seller and realtor. Wagner, 232 Mont. at 336, 757 P.2d at 782. Since Wagner relied upon the material misrepresentations of LDS as they appeared in the written listing agreement prepared by the realtor, she was under no additional duty to discover the latent defects in the house. We affirmed the court's holding that Wagner was accountable for obvious defects but was not responsible for latent defects.
¶29 LDS also argued that Wagner's failure to investigate constituted contributory negligence. As noted above, the district court only allowed recovery for latent defects (hazardous chimney, broken sewage pump, faulty lawn sprinkler) and held Wagner accountable only for the defects that a reasonable buyer would have noticed. “With that distinction, the court properly addressed Wagner's contributory conduct in the transaction.” Wagner, 232 Mont. at 339, 757 P.2d at 783.
¶30 The Logans, like LDS, argue that the buyer has an independent obligation to inspect the property and discover both latent and obvious defects and that failure to do so amounts to contributory negligence. We reject this contention as we did in Wagner. This is not a case where the defects were clearly observable like the unfinished basement, incomplete heating ducts and cracks in the patio. Rather, the defects in the Strom home were concealed behind walls and ceilings. Since the Stroms relied upon the Logans' representations that the repairs had been made, they had no independent obligation to cut holes in the walls or ceiling to ascertain the extent of the damage themselves. Their failure to take affirmative steps to discover latent defects does not amount to contributory negligence.
5. Did the District Court abuse its discretion in awarding prejudgment interest?
¶31 The District Court awarded the Stroms the sum . of $42,700 together with interest from July 1, 1997, until the date of judgment. The Logans assume that the District Court's award of prejudgment interest was pursuant to § 27-1-210(1), MCA, which creates an entitlement to interest for damages awarded “that are capable of being made certain by calculation...” The Logans then argue that the award of interest in a negligence case such as this does not meet the standard of being a sum capable of being made certain prior to the issuance of judgment.
¶32 The Stroms contend that the controlling statute is not § 27-1-210(1), MCA, but rather § 27-1-212, MCA, which authorizes a discretionary award of interest in cases not grounded in contract. That statute provides as follows:
In an action for the breach of an obligation not arising from contract and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury. This section does not apply in actions for recovery of damages arising from injury to a person or property brought against a governmental entity under Title 2, chapter 9, parts 1 through 3, as amended.
¶33 We have held that the statutory discretion granted to the jury to award interest applies as well to a judge sitting as the trier of fact in a negligence case. Semenza v. Bowman (1994), 268 Mont. 118, 127, 885 P.2d 451, 457. Furthermore, in Semenza we held that § 27-1-212, MCA, unlike § 27-1-210, MCA, does not have a certainty requirement; it does not require liquidated damages. We hold that the award of prejudgment interest was within the court's discretion under § 27-1-212, MCA.
6. Did the District Court abuse its discretion by denying the Logans' motion for summary judgment?
¶34 The Logans contend that the District Court erred in not granting them summary judgment as to Elizabeth Logan's status as a party, the Stroms' contributory negligence and the adequacy of Robert Logan's disclosure to the Stroms. Since these, issues have all been addressed above, there is no need to discuss them further.
¶35 The decision of the District Court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and TRIEWEILER concur.
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Appellant, ■ the natural father of K.C.H., appeals the District Court’s Order of January 9, 2002 terminating his parental rights. We affirm.
¶2 Appellant raises several issues on appeal which we have tailored for clarity as follows:
¶3 1. Whether the District Court erred in taking judicial notice of the natural mother’s prior termination proceeding?
¶4 2. Whether the District Court erred in adjudicating K.C.H. as a ‘Youth in Need of Care”?
¶5 3. Whether the District Court erred in terminating Appellant’s parental rights?
¶6 4. Whether § 41-3-301, MCA, the emergency protection service statute, is constitutional?
Background
¶7 In April 2000, the Department of Public Health and Human Services (Department) learned that R.B.-H. was due to deliver a child in June. R.B.-H. had previously been a party to a termination proceeding which culminated in her relinquishing custody of her three children to the Department on September 15,1998. Approximately one month before KC.H.’s birth, R.B.-H and Appellant were interviewed by a social worker for the Department. During the interview, Appellant stated that R.B.-H. would be the baby’s primary care giver because the Appellant worked nights.
¶8 K.C.H. was bom on June 9, 2000. At that time, social workers for the Department placed a forty-eight hour hold on the child as permitted by the emergency service protection statute, § 41-3-301, MCA. Two days later, the Department removed the child from the hospital for emergency placement and subsequently the Department filed a Petition for Temporary Custody. Soon thereafter, the District Court appointed counsel for both parents and a guardian ad litem for K.C.H. Over the course of a year, the Department filed two more petitions for Temporary Custody and Appellant signed off on two treatment plans. K.C.H. has been in the custody of the Department since her birth.
¶9 After Appellant established his paternity of K.C.H., the District Court addressed his motion for summary judgment which asserted that the emergency protective service statute, § 41-3-301, MCA, was unconstitutional. The District Court denied Appellant summary judgment and ruled that the emergency service protective statute was constitutional. In June 2001, the District Court adjudicated K.C.H. as a ‘Youth in Need of Care,” pursuant to § 41-3-102, MCA. Finally, in September 2001, the Department filed a Petition for Permanent Legal Custody, Termination of Parental Rights and Right to Consent to Adoption. Appellant then filed a Motion for a Directed Verdict. In response, the District Court entered its Findings of Fact, Conclusions of Law, and Order terminating Appellant’s parental rights.
¶10 Following the judgment, the Appellant filed a Notice of Appeal, stating he appealed “from the judgement and order of the Thirteenth District Court, Judge Diane Barz, presiding, Order dated January 9, 2002.” We affirm the District Court’s Order in its entirety.
Discussion
¶11 The decision to terminate parental rights is a discretionary ruling reviewed for an abuse of discretion. See In the Matter of C.P., 2001 MT 187, ¶ 9, 306 Mont. 238, ¶ 9, 32 P.3d 754, ¶ 9; In the Matter of J.M.J., 1999 MT 277, ¶ 16, 296 Mont. 510, ¶ 16, 989 P.2d 840, ¶ 16. The test for an abuse of discretion is “whether the trial court acted arbitrarily, without employment of conscientious judgment, or exceeded the bounds of reason resulting in substantial injustice.” In the Matter of C.P., ¶ 9 (citation omitted).
¶12 The standard of review of a district court’s findings of fact in a parental termination case is whether the findings in question are clearly erroneous. See In the Matter of P.E. (1997), 282 Mont. 52, 56, 934 P.2d 206, 209; In the Matter of J.L. (1996), 277 Mont. 284, 287, 922 P.2d 459, 461. The standard of review of a district court’s conclusions of law in such cases is whether its conclusions are correct. See In the Matter of P.E. (1997), 282 Mont. at 56-57, 934 P.2d at 209; In the Matter of J.L., 277 Mont. at 287, 922 P.2d at 461.
I
¶13 Whether the District Court erred in taking judicial notice of the natural mother’s prior termination proceeding?
¶14 Appellant claims that the District Court erred in taking judicial notice of the previous proceeding against R.B.-H., which culminated in her relinquishing custody of her three children in 1998. Appellant contends that the court records in that proceeding were sealed and, therefore, the District Court took notice of facts that were not known and could not be discovered by the Appellant. The Department points outs though, that Appellant was served three petitions. Attached to each petition was a “Report to the Court.” Each report contained over twenty pages detailing the Department’s interaction with R.B.-H. from 1991 until she relinquished her parental rights to the three children in 1998. The Reports included information regarding the removal of the three children from R.B.-H. and her relinquishment of parental rights. Appellant, undoubtedly, was aware of the prior termination proceeding. However, nothing in the present record indicates that he attempted to access the court records of the proceeding even though § 41-3-205(2), MCA, permits a court to disclose confidential records of termination of parental rights when disclosure is necessary for the fair resolution of an issue before it.
¶15 Rule 201, M.R.Evid., authorizes a court to take judicial notice of certain facts. “A fact to be judicially noticed must be one not subject to reasonable dispute in that it is ... (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Rule 201(b)(2), M.R.Evid. Rule 202 (b)(6), M.R.Evid., permits a court to take judicial notice of law, including the “[r]ecords of any court of this state ....”
¶16 Under Rule 202(b)(6), M.R.Evid., the District Court was correct in taking judicial notice of the proceeding involving R.B.-H. as it is a “record of a court of this state.” The fact that Appellant could not access these records without petitioning the Court for their disclosure does not make them entirely inaccessible. Therefore, the District Court did not err in taking judicial notice of the prior termination proceeding.
II
¶17 Did the District Court err in adjudicating K.C.H. as a “Youth in Need of Care”?
¶18 Before terminating parental rights, the district court must first adjudicate the child as a “Youth in Need of Care.” See § 41-3-609(l)(f), MCA. Under Montana Code, “[a] ‘[y]outh in need of care’ means a youth who has been adjudicated or determined, after a hearing, to be or to have been abused or neglected.” Section 41-3-102(23), MCA (1999). “‘Abused or neglected’ means the state or condition of a child who has suffered child abuse or neglect.” Section 41-3-102(3), MCA (1999). Child abuse or neglect is defined as either “actual harm to a child’s health or welfare” or “substantial risk of harm to a child’s health or welfare.” Section 41-3-102(7)(a)(i) and (ii), MCA (emphasis added).
¶19 The District Court’s order of June 11, 2001, in which it adjudicated K.C.H. a ‘Youth in Need of Care,” concluded that K.C.H. was “in immediate or apparent danger of harm.” Appellant argues that, because K.C.H. was removed from her parents at birth, she was never abused or neglected by them, and thus the District Court erred in adjudicating' K.C.H. as a ‘Youth in Need of Care.” Appellant contends that actual, not prospective, abuse or neglect is required for a child to be deemed a ‘Youth in Need of Care.” Appellant’s argument, however, ignores the plain language of § 41-3-102(7)(a)(ii), MCA. This statute provides that a “substantial risk of harm to a child’s health or welfare” constitutes child abuse.
¶20 Recently, this Court addressed the issue of prospective abuse in In the Matter of C.P., 2001 MT 187, 306 Mont. 238, 32 P.3d 754, where we upheld the termination of a natural mother’s parental rights and the adjudication of a ten-day-old newborn as a ‘Youth in Need of Care.” In that case, the mother’s parental rights to C.P.’s sibling had been terminated one month prior to C.P.’s birth. Although, like K.C.H., C.P. had not been actually abused or neglected by his mother, testimony from trial indicated that the mother presented a moderately high risk of child abuse. See C.P., ¶ 6. Ultimately, this Court concluded that “[t]he primary basis for the termination of parental rights was the court’s reliance on the fact that [the mother’s] parental rights to [the sibling], had been involuntarily terminated and the circumstances related to the termination remained relevant to her ability to adequately care for [her newborn],” C.P., ¶ 13. In affirming the termination of the mother’s parental rights, we held that “the continuation of the parent-child relationship between [the mother] and [child] will likely, result in substantial risk of harm to [the child’s] health or welfare.” C.P., ¶ 20.
¶21 Appellant’s statement that R.B.-H., KC.H.’s natural mother, would be the child’s primary care giver required the District Court to consider R.B.-H.’s circumstances even though she is not party to this appeal. If there was any indication that the Appellant would be the primary care giver, then the mother’s circumstances and the fact that she has been party to previous termination proceedings would be less relevant. As it stands, though, Appellant is on record as stating that R.B.-H. would be the child’s primary care giver. Thus, the District Court was called upon to determine whether the termination of R.B.H.’s parental rights to KC.H.’s three siblings remained relevant to her ability to adequately care for K.C.H. Dr. Tranel, the licensed psychologist who performed psychological evaluations on both parents, concluded that it was very unlikely that R.B.-H.’s “extensive limitations in parenting performance ha[d] changed from the previous years when it had been determined that she could not adequately provide for the needs of her young children.” The District Court, in its findings, similarly found that R.B.-H. “displayed the identical symptoms of a personality disorder in this case as she did in [the termination proceedings of KC.H.’s three siblings]: a pattern of detachment, lack of nurturing and warmth ...just like her pattern with the other three children.”
¶22 Therefore, because the circumstances related to the termination of R.B.-H.’s parental rights to K.C.H.’s three siblings have not changed, and because she would be KC.H.’s primary care giver, there was a substantial risk of harm posed to the health and welfare of K.C.H. The District Court did not err in finding that K.C.H. was “in immediate or apparent harm.” Accordingly, we affirm the District Court’s adjudication of K.C.H. as a “Youth in Need of Care.”
Ill
¶23 Whether the District Court erred in terminating Appellant’s parental rights?
¶24 Pursuant to § 41-3-609(f), MCA, once a child is adjudicated as a “Youth in Need of Care,” parental rights may be terminated if both of the following exist: (1) an appropriate treatment plan that has been approved by the court has not been complied with by the parent or has not been successful; and (2) the conduct or condition of the parent rendering them unfit is unlikely to change within a reasonable time. See § 41-3-443, MCA. Appellant argues that neither of his treatment plans were appropriate and, therefore, the District Court erred in terminating his parental rights to K.C.H.
¶25 Appellant maintains that his treatment plans were not “appropriate” because they did not satisfy the requirements of § 41-3-443, MCA. This section provides that every treatment plan must identify the “problems or conditions that resulted in the abuse or neglect of [the] child.” Section 41-3-443(2), MCA. Again, Appellant hangs his hat on the fact that K.C.H. was never actually abused and, consequently, his treatment plans necessarily failed to address the “problems or conditions that resulted in the abuse or neglect of’ K.C.H. While the Appellant is correct that his treatment plans did not identify the “problems or conditions that resulted in the abuse” because, as noted above, no actual abuse occurred, both of his plans did identify the problems or conditions creating the substantial risk of harm to the health and welfare of K.C.H., that is, the lack of a stable home and safe environment. Because of the natural mother’s demonstrated inability to care for her children, Appellant’s treatment plans put the onus on him to provide a safe environment for K.C.H. Both of Appellant’s treatment plans listed one of his primary goals as to “provide a stable home [for] his child with adequate housing and income.” Therefore, because Appellant’s treatment plans did identify the threshold “problems or conditions” creating the substantial risk of harm to the health and welfare of K.C.H., specifically that he, as opposed to R.B.H., provide K.C.H. a stable home with adequate housing and income, the plans were appropriate under § 41-3-443, MCA.
¶26 Appellant also contends that the District Court erred in concluding that he failed to comply with his treatment plans; however, Appellant offers no evidence of his substantial compliance with either plan. Again, the record is replete with evidence of his inability to secure either a residence or a job, key requirements of both treatment plans. On several occasions, social workers could not locate the Appellant at his listed address. Similarly, Appellant did not provide the Department with any evidence of gainful employment, such as pay stubs. The District Court did not abuse its discretion in determining that both elements of § 41-3-609(f), MCA, were present and accordingly terminating Appellant’s parental rights.
IV
¶27 Whether § 41-3-301, MCA, the emergency protection service statute, is constitutional?
¶28 Appellant claims that § 41-3-301, MCA (1999), which allows the immediate removal of the child from the family in emergency situations, is unconstitutional. The constitutionality of this statute, however, is not an issue properly brought for appeal as this issue was not addressed in the District Court’s final judgment, dated January 9, 2002, from which the Appellant appeals. Instead, the District Court ruled on the constitutionality of the statute in its denial of Appellant’s “Motion for Summary Judgment,” dated April 12, 2001.
¶29 Rule 4(c), M.R.App.P., requires that the notice of appeal designate the “judgment, order or part thereof appealed from.” In State v. Spotted Blanket, 1998 MT 59, ¶ 12, 288 Mont. 126, ¶ 12, 955 P.2d 1347, ¶ 12, this Court held that it “will not consider an appeal from an order not designated in the notice of appeal.” Therefore, this Court will not consider any judgment other than the one listed in Appellant’s notice of appeal. Appellant’s notice of appeal confined this appeal to “the judgement and order of the Thirteenth District Court, Judge Diane Barz, presiding, Order dated January 9, 2002.” Consequently, the Appellant has not preserved his right to appeal any ruling other than this judgment. Because Appellant did not preserve an appeal of the April 12, 2000, Order, and the issues contained therein, the constitutionality of the emergency protection service statute will not be addressed by this Court.
¶30 Therefore, we uphold the District Court’s adjudication of K.C.H. as a “Youth in Need of Care” and hold that it did not err in terminating Appellant’s parental rights.
CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER, REGNIER and RICE concur.
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Appellant Elroy Patrick Keenan (Keenan) appeals from the order entered by the Fourth Judicial District Court, Missoula County, denying Keenan’s motion to dismiss or to amend the charge of felony driving while under the influence of alcohol (DUI). We affirm.
¶2 The sole issue presented on appeal is whether the District Court erred in denying Keenan’s motion to dismiss or amend the charge.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On June 11, 1999, Keenan was arrested in Missoula County, Montana, on a charge of DUI. He was charged with a fourth lifetime offense DUI, a felony, based upon his previous DUI convictions in 1995,1990,1986.
¶4 Keenan filed a motion to dismiss or to amend the charge to misdemeanor DUI, asserting that one of his three prior DUI convictions was constitutionally infirm. Keenan contended that at the time he entered his guilty plea to the 1990 DUI charge, he could not afford to hire an attorney, he was not represented by an attorney, he did not recall being advised of his constitutional right to an attorney, and he did not recall waiving his right to counsel. The District Court denied Keenan’s motion to dismiss or amend the charge.
¶5 On March 15, 2001, the State of Montana and Keenan entered into a plea agreement wherein Keenan entered a conditional plea of guilty, and reserved his right to appeal the denial of his motion. The District Court entered judgment on July 12, 2001, and Keenan now appeals.
DISCUSSION
¶6 Did the District Court err in denying Keenan’s motion to dismiss or amend the charge of felony DUI?
¶7 When we review a district court’s conclusions of law, the standard of review is plenary and we must determine whether the district court’s conclusions are correct as a matter of law. State v. Olson (1997), 283 Mont. 27, 30, 938 P.2d 1321, 1324. When we review a district court’s findings of fact, the standard of review is whether those findings are clearly erroneous. Olson, 283 Mont. at 30, 938 P.2d at 1324.
¶8 Arebuttable presumption of regularity attaches to a prior DUI conviction subject to a collateral attack. State v. Okland (1997), 283 Mont. 10, 18, 941 P.2d 431, 436. This presumption maybe overcome by direct evidence of irregularity by the defendant. At that point, “the burden then shifts to the State to produce direct evidence and prove by a preponderance of the evidence that the prior conviction was not entered in violation of the defendant’s rights.” Okland, 283 Mont. at 18, 941 P.2d at 436; see also Olson, 283 Mont. at 31, 938 P.2d at 1324. ¶9 Pursuant to that procedural framework, we must first determine whether Keenan presented direct evidence that his constitutional rights were violated in the prior proceeding. In support of his claim, Keenan submitted an affidavit which states, in relevant part, as follows:
4. That I do not recall being advised of my constitutional right to an attorney, or appointment of an attorney if I could not afford one.
5. That I do not recall waiving my right to an attorney.
6. That I did not consult an attorney regarding this matter because, at the time, I did not have the money to retain an attorney.
Keenan notes that the record from his earlier conviction is silent on the question of whether he knowingly and intelligently waived his right to counsel because the audiotape of the 1990 arraignment could not be found. Citing to our holding in Okland, 283 Mont. at 15, 941 P.2d at 434, that a court may not presume waiver of counsel from a silent record, Keenan argues that his affidavit provides sufficient evidence to rebut the presumption of regularity.
¶10 In State v. Big Hair, 1998 MT 61, 288 Mont. 135, 955 P.2d 1352, we held that a defendant’s inability to recall whether he waived his right to counsel did not constitute direct evidence sufficient to rebut the presumption of regularity. We stated:
Big Hair did not present any direct evidence in support of his claim that his constitutional right to counsel was violated in the prior proceedings. He testified only that he could not recall whether he had been advised of his right to counsel and whether he had waived that right. We conclude that... Big Hair has failed to rebut the presumption of regularity with any direct evidence that his constitutional right to counsel was violated.
Big Hair, ¶ 18. Likewise, Keenan’s inability to recall whether he waived his right to counsel during the 1990 arraignment does not constitute direct evidence sufficient to rebut the presumption of regularity, even in the face of a silent record.
¶11 We have held that the presumption of regularity is not diminished by the absence of a transcript or record. Okland, 283 Mont. at 18, 941 P.2d at 435-36. There we concluded, based on Parke v. Raley (1992), 506 U.S. 20, 113 S.Ct. 517, 121 L.Ed.2d 391, that:
“The circumstance of a missing or nonexistent record is, we suspect, not atypical, particularly when the prior conviction is several years old.... On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights.”
Okland, 283 Mont. at 18, 941 P.2d at 435-36 (quoting Parke, 506 U.S. at 30, 113 S.Ct. at 524, 121 L.Ed.2d at 404). Keenan has made no allegation that the inability to locate the audiotape of the 1990 arraignment was due to governmental misconduct. Testimony presented to the District Court established that the inability to produce the audiotape was due to a recent move in storage facilities.
¶12 Based on the foregoing, Keenan has failed to rebut the presumption of regularity with any direct evidence that his constitutional right to counsel was violated. Therefore, we hold Keenan’s 1990 conviction was constitutionally sound, and we affirm the District Court’s order denying Keenan’s motion to dismiss or amend the charge.
JUSTICES NELSON, REGNIER and COTTER concur.
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] |
On May 1, 1997, the defendant was found guilty of Count II: Threats Against a Public Servant, a felony. The defendant is sentenced to imprisonment at the Montana State Prison for five (5) years and pursuant to Section 46-18-202, MCA, the defendant shall be ineligible for parole and/or participation in a supervised release program while serving that time. Sentence is to run concurrently with Criminal Cause # 97-2 in which the defendant was sentenced to five (5) years in the Montana State Prison. On the same date, defendant was found guilty of Count III: Privacy in Communications, a misdemeanor, and sentenced to six (6) months in the county jail. This sentence is to run concurrently with Count II, above, and with the sentence in Criminal Cause # 97-2. The defendant shall be given credit for time currently served in the county jail and no further jail time is needed.
On August 13,1998, 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 Kevin Brown and Karl Knuchel. 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 to 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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to two and one half (2 V2) years to the Montana State Prison, without the possibility of parole, to run concurrently with Criminal Cause # 97-2.
The reason for the amendment is to conform to the intent of the prosecution against the court at the time of sentencing.
Member, Hon. Jeff Langton, Alt. Member, Hon. Robert Boyd and Alt. Member, Hon. James Purcell.
The Sentence Review Board wishes to thank attorneys Karl Knuchel and Kevin Brown for representing Pete L. Goolsby in this matter.
|
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶ 1 Danny Dahlin appeals from his conviction of perjury in the Tenth Judicial District Court, Fergus County. We affirm.
¶2 The issues are:
¶3 1. Is Dahlin’s perjury conviction invalid because the court allowed as evidence testimony from his brother’s earlier DUI trial the result of which was later reversed on appeal?
¶4 2. Did the verdict form deny Dahlin’s right to a unanimous jury verdict?
¶5 3. Did the court err in admitting the testimony of Cami Meader that Dahlin’s brother had pushed her into the driver’s seat during the initial stop of the pickup and the testimony of Roxie Nilsen that she did not drive Dahlin to the pickup?
¶6 Dahlin was charged with perjury based on the allegation that he testified falsely at his brother’s trial for a January 2,1997 DUI (driving under the influence of alcohol) offense. The information alleged that Dahlin testified at his brother’s trial that he, not his brother, was driving the vehicle when his brother was arrested for DUI, and that this testimony was both false and material to the proceedings.
¶7 At his brother’s trial, Dahlin testified that he had been with his brothers, his mother, and Cami Meader at the Bar 19 in Lewistown, Montana, on the evening of January 2. Dahlin testified that he went home early and that Meader offered to drive his brother home. He testified that his brother later called him at home, saying he and Meader had been pulled over, Meader had been arrested for DUI and failure to carry insurance, and he needed someone to drive his truck home. Dahlin testified that because his mother was in bed and had been drinking, he called Roxie Nilsen and asked her for a ride into town to pick up his brother and the truck.
¶8 Dahlin further testified at his brother’s trial that when he did not find his brother where they had agreed to meet, he walked over to the parking lot where the truck was parked and found his brother sitting inside the pickup. Dahlin testified that he got in and began driving his brother home, but that when they saw a highway patrol officer following them, he became worried about being caught driving a vehicle with no insurance. He testified that he jumped out of the truck and ran away down an alley. Dahlin testified that he had lied in an earlier statement to the police when he said that his mother had given him a ride into town.
¶9 At Dahlin’s trial on the peijury charge, the State read into evidence Dahlin’s testimony at his brother’s DUI trial. The State then called Dahlin’s brother, who testified consistently with Dahlin’s testimony at the earlier trial.
¶10 Cami Meader testified at Dahlin’s perjury trial about events preceding the arrest of Dahlin’s brother for DUI. Meader testified that Dahlin’s brother had been driving the truck when it was stopped by Lewistown, Montana police officers but that he forced her into the driver’s seat after he was pulled over. Meader was arrested for DUI. ¶11 The State also presented the testimony of Kelly Mantooth, the Montana highway patrolman who arrested Dahlin’s brother for DUI. Mantooth testified that after Meader was arrested for DUI, the police officers moved the truck into a motel parking lot and instructed Dahlin’s brother, who appeared to be intoxicated and did not have a valid driver’s license, not to drive it. Dahlin’s brother walked away. Mantooth remained parked at the scene.
¶12 Mantooth soon saw a person wearing cowboy boots run from a motel across the street into the parking lot where the truck was parked. The truck drove off and Mantooth followed it through a series of turns. He lost sight of the truck for “a couple seconds” as it went around a corner, and then saw it stopped by the side of the road. When he approached, Dahlin’s brother was sitting in the passenger seat and no one was in the driver’s seat. The keys were on the road about twenty feet from the truck, and the driver’s side window was open. Mantooth arrested Dahlin’s brother for DUI. At the police station, Dahlin’s brother told Mantooth that Dahlin had been driving the truck but had run away.
¶13 According to Mantooth, Dahlin went to the police station the next day and executed a written statement concerning the events of the previous night. He wrote that he was driving with his mother when they saw his brother walking down the street; they picked the brother up and took him to his truck, and Dahlin began driving the brother home. Dahlin wrote that when he realized they were being pulled over, he ran away because he was afraid he would be arrested for driving an uninsured vehicle. Dahlin’s written statement was introduced into evidence at his trial. Also introduced into evidence was a second written statement executed by Dahlin later the same day, in which he wrote that the first statement was false and that he was at home when his brother was pulled over.
¶ 14 Roxie Nilsen testified at Dahlih’s trial that she was aware that Dahlin’s brother had been arrested for DUI. She testified that Dahlin and his brother asked her to help them by saying that she gave Dahlin a ride, but that she did not actually give him a ride that night.
¶15 In his defense, Dahlin presented expert testimony that Mantooth was far enough behind the truck that he would not have been able to see Dahlin running away from it. The jury found Dahlin guilty of peijury and he appeals.
Issue 1
¶ 16 Is Dahlin’s peijury conviction invalid because the court allowed as evidence testimony from his brother’s earlier trial the result of which was later reversed on appeal?
¶ 17 After Dahlin was convicted of peijury, this Court overturned his brother’s DUI conviction. State v. Dahlin, 1998 MT 113, [289 Mont. 182], 961 P.2d 1247. The basis for that decision was failure to provide a jury trial, which right Dahlin’s brother had not waived. Dahlin argues that evidence from his brother’s trial is no longer useable against him and that without the evidence from his brother’s trial the State cannot support the elements of his peijury conviction beyond a reasonable doubt. He maintains, therefore, that the peijury charge and his conviction of peijury must be dismissed with prejudice.
¶18 As authority for his position, Dahlin cites State v. White (Wash. App. 1982), 644 P.2d 693, and Loper v. Beto (1972), 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374. In White, the Court of Appeals ofWashington reversed defendant White’s peijury conviction after concluding that the testimony claimed to be peijury was literally true. The court then determined that the conviction was based upon insufficient evidence. White, 644 P.2d at 699. The court went on to rule, as to White’s separate trial on a theft charge, that the introduction of evidence of the peijury conviction for impeachment purposes rendered the conviction invalid. The court remanded so that a new trial could be held on the theft charge, excluding all evidence concerning the peijury conviction. White, 644 P.2d at 700.
¶19 In Loper, the United States Supreme Court overturned defendant’s conviction of statutory rape. At trial, the court had allowed into evidence testimony concerning defendant’s prior criminal convictions, which convictions the Loper Court held were constitutionally invalid because the defendant had been denied the assistance of counsel in those matters. The Court stated the issue as whether the use of prior void convictions for impeachment violated the right to due process of law when their use might well have influenced the outcome of the case. The Court held that retroactive application to invalidate the statutory rape conviction was proper because the absence of counsel in the prior convictions went to “the very integrity of the fact-finding process” and those convictions therefore lacked reliability. Loper, 405 U.S. at 484, 92 S.Ct. at 1019, 31 L.Ed.2d at 382.
¶20 Here, no prior conviction later determined invalid was introduced into evidence. Instead, the evidence introduced and now in dispute was the testimony of a witness, Dahlin, under oath at the prior trial. In contrast to the prior convictions at issue in White and Loper, Dahlin’s testimony has not been ruled invalid or void; the rationale for reversing Dahlin’s brother’s conviction was unrelated to Dahlin’s testimony. White and Loper are therefore not on point.
¶21 Dahlin argues that because his brother’s conviction has been reversed, there is nothing to indicate that he gave false testimony at an official proceeding. However, where a court has jurisdiction over subject matter, false testimony before the court is perjury, notwithstanding an ultimate determination that the proceeding is otherwise defective. United States v. Williams (1951), 341 U.S. 58, 68-69,71 S.Ct. 595, 601, 95 L.Ed. 747, 754-55. Dahlin concedes that the District Court had subject matter jurisdiction over his brother’s DUI trial and that it also had personal jurisdiction over his brother.
¶22 Further, this Court has upheld the use of evidence from a prior trial which has been declared invalid, as long as the evidence is otherwise admissible. State v. Hall (1988), 234 Mont. 57, 761 P.2d 1283; Waite v. Waite (1964), 143 Mont. 248, 389 P.2d 181. Apart from his argument that his testimony was inadmissible because his brother’s trial was later determined invalid, Dahlin has not argued that his testimony at that trial was otherwise inadmissible.
¶23 We hold that under these facts, Dahlin’s perjury conviction is not invalid due to the reliance upon testimony given at his brother’s DUI trial the result of which was later reversed.
Issue 2
¶24 Did the verdict form deny Dahlin’s right to a unanimous jury verdict?
¶25 The special verdict form given to the jury asked only for a finding of whether Dahlin was guilty or not guilty, without further elaboration. Jury Instruction No. 4 stated that Dahlin was charged with perjury, and Jury Instruction No. 13 defined that offense as “A person commits the offense of perjury if, in an official proceeding, he knowingly makes a false statement under oath or equivalent affirmation.” None of the jury instructions identified the specific date or facts of the charged act of perjury.
¶26 Dahlin argues on appeal that the jury instructions should have contained provisions limiting the jury’s consideration to the specific criminal act charged in the information — his testimony at his brother’s trial that he was driving his brother’s truck. Dahlin maintains that the jury, or some members thereof, may have voted to convict him for lying about other matters.
¶27 The difficulty in this argument is that Dahlin failed to offer a special verdict form containing the specifications which he now complains were fatally missing. Moreover, Dahlin’s counsel consented, during the settling of jury instructions, to the District Court’s suggestion that the jury be informed of the facts upon which the perjury charge was based in closing arguments. Counsel for both sides did, in fact, address this subject in their closing arguments.
¶28 Dahlin argues that this issue should nevertheless be reviewed under the plain error doctrine, citing State v. Weaver, 1998 MT 167, [290 Mont. 58], 964 P.2d 713. In Weaver, the alleged error was failure to properly instruct the jury on multiple counts. In that case, a majority of this Court determined that the requirements for plain error were present: an alleged error implicating a fundamental constitutional right, which error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of a trial, or compromise the integrity of the judicial process. Weaver, ¶ 25.
¶29 Dahlin also cites State v. Weldy (1995), 273 Mont. 68, 902 P.2d 1, in support of his plain error argument. In Weldy, the defendant was charged with felony assault under two alternative statutory subsections. The verdict form did not ask the jury to specify which of the two types of felony assault served as the basis for their finding; therefore, this Court concluded that the defendant’s constitutional right to a unanimous verdict was not protected by the jury instructions or the jury verdict form. Weldy, 273 Mont. at 78, 902 P.2d at 7.
¶30 In contrast to defendants Weaver and Weldy, Dahlin was charged with an offense under a single theory. Nothing in the arguments of counsel, the jury instructions, or the special verdict form contradicted this fact. We conclude that this is not a case in which review is justified under the plain error doctrine, and that this issue was waived in the proceedings below. It cannot now be raised on appeal.
Issue 3
¶31 Did the court err in admitting the testimony of Cami Meader that Dahlin’s brother had pushed her into the driver’s seat during the initial stop of the pickup and the testimony of Roxie Nilsen that she did not drive Dahlin to the pickup?
¶32 Our standard of review of a trial court’s decision on the admissibility of evidence is whether the court abused its discretion. State v. Medrano (1997), 285 Mont. 69, 72, 945 P.2d 937, 939.
¶33 Dahlin moved in limine to exclude Nilsen’s testimony on the basis that whether she gave him a ride to the pickup was immaterial or irrelevant to the perjury charge against him. The court found that Nilsen’s testimony was relevant. Dahlin argues on appeal that Nilsen’s testimony was both irrelevant and unduly prejudicial.
¶34 As the District Court noted, Dahlin’s story about how he arrived at his brother’s pickup truck was inseparably intertwined with his story about driving the pickup truck, as part of the res gestae. Well-established law allows the admission of evidence as to all facts and circumstances surrounding the commission of a crime. See, e.g., State v. Moore (1992), 254 Mont. 241, 836 P.2d 604. The jury was entitled to judge the credibility of Dahlin’s entire story in order to determine whether he lied about driving his brother’s truck.
¶35 Rule 403, M.R.Evid., provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Dahlin contends that Cami Meader’s testimony concerning the first traffic stop of his brother’s truck, when she was in the driver’s seat, should have been excluded under this rule. He asserts that other equally probative evidence was available to the State, apparently referring to his brother’s testimony about why he needed Dahlin to pick him up. He also asserts that the introduction of this particular evidence raised the risk that the jury would convict him for crimes other than those charged or that it would convict on the basis that “a bad person deserves punishment.”
¶36 We, unlike Dahlin, credit the jury with the ability to distinguish between evidence concerning bad acts of Dahlin’s brother and evidence concerning bad acts by Dahlin himself. We agree with the District Comb that the jury was entitled to hear from all the available witnesses how this event came about. We hold that the District Court did not abuse its discretion in admitting the testimony of Meader and Nilsen.
¶37 Affirmed.
JUSTICES NELSON, LEAPHART, HUNT and TRIEWEILER concur.
|
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On September 16,1997, the defendant was sentenced to a term of ten (10) years on Count II in the Montana State Prison. Additionally, pursuant to Section 46-18-221(1), MCA, for the use of a dangerous weapon during the commission of this offense, the Defendant is sentenced to ten (10) years in the Montana State Prison. Said sentence shall run consecutively with the sentence imposed. It was further ordered that the Defendant register as a violent offender, pursuant to Section 46-23-504, 46-23-505, and 46-23-506, MCA. Further, pursuant to Section 44-6-103, MCA, the Defendant shall provide a blood sample to be used for DNA testing. Defendant shall receive credit for fourteen (14) days already served.
On August 13,1998, 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 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 to 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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be held in abeyance until the time Mr. Rogers has finished the appeal process. At that time, the Defendant shall be given sixty (60) days in which to file for review of the sentence.
Done in open Court this 13th day of August, 1998.
DATED this 1st day of September, 1998.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeff Langton and Alt. Member, Hon. Robert Boyd.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 The plaintiffs, William and Gwyn Young, brought this action in the District Court for the Eleventh Judicial District in Flathead County to recover damages from the defendants, Security Union Title Insurance Company (Insurer), Security Union Title Company of Idaho (Title Company), Coldwell Banker Wachholz and Company, and Fred and Donna Early, based on limitations to the use of real property purchased by Youngs from Earlys which were allegedly not disclosed at the time of purchase. The Insurer and the Title Company moved for an order compelling arbitration pursuant to a provision for arbitration in the title insurance policy, and that motion was granted. However, when Youngs refused to pay in advance the anticipated costs of arbitration, the arbitrator for the American Arbitration Association declined to proceed; the Insurer and Title Company moved for summary judgment based on Youngs’ alleged refusal to comply with the court’s order compelling arbitration and; that motion was granted. Youngs appeal from the District Court’s order granting summary judgment to the Insurer and the Title Company. We reverse the order and judgment of the District Court.
¶2 The dispositive issue on appeal is whether the title insurance policy issued by Security Union Title Insurance Company includes a valid and binding arbitration clause.
FACTUAL BACKGROUND
¶3 The plaintiffs, William and Gwyn Young, filed a complaint in the District Court for the Eleventh Judicial District in Flathead County on November 6,1996, in which Security Union Title Insurance Company, Security Title Company of Idaho, Coldwell Banker Wachholz Company, and Fred and Donna Early were named as defendants.
¶4 Youngs’ complaint alleged that in June 1994 they purchased real property from Earlys and that Coldwell Banker Wachholz Company, a real estate broker, acted as a dual agent representing both the sellers and the buyers in that transaction.
¶5 Youngs alleged that prior to their purchase of property from Earlys the Title Company reviewed real estate records in Flathead County and reported no defects in the title to the property, nor restrictions on their use of the property, and that the Insurer sold them a policy of title insurance which insured the marketability of the title.
¶6 Youngs further alleged that in July 1996 they learned of a sanitary restriction on the property they had purchased and that the septic system on the property violated that restriction. They alleged that the restriction was evident from Flathead County property records, should have been noticed by the Title Company, and was a defect against which the Insurer insured them, but that the Insurer had refused to indemnify them pursuant to its contract with them.
¶7 For these reasons, Youngs alleged that the sellers and brokers misrepresented material facts to them and that the Insurer and Title Company breached material terms of their contracts with the Youngs, and that as a result of the conduct of all defendants, they had been significantly damaged.
¶8 After being served with the complaint, the Insurer and Title Company demanded that Youngs submit their dispute to arbitration pursuant to paragraph 14 of the title insurance policy, which provides, in relevant part, as follows:
Unless prohibited by applicable law, either the Company or the Insured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association. Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Insured arising out of or relating to this policy, any service of the Company in connection with its issuance or the breach of a policy provision or other obligation.
The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules.
¶9 Following receipt of the demand for arbitration, Youngs moved the District Court to stay arbitration based on their contention that the Insurer had violated § 27-5-114(4), MCA (1989), by its failure to provide notice on the first page of the insurance contract that it was subject to arbitration; and based on their contention that pursuant to § 27-5-114(2)(c), MCA, agreements to submit controversies relating to insurance policies to arbitration are not enforceable.
¶10 The Insurer and Title Company objected to Youngs’ motion to stay arbitration, and in reliance on paragraph 14 of the title insurance policy, moved the court for an order compelling arbitration. The Insurer and Title Company acknowledged that Montana law invalidates arbitration clauses in insurance policies, but contended that the law did not apply to title insurance policies. They also argued that since Youngs did not object to the existence of the clause in the policy when it was issued in 1994, their objection in the District Court was untimely.
¶11 The District Court denied Youngs’ motion to stay arbitration and granted the Insurer and Title Company’s motion to compel arbitration. There is no explanation in the District Court’s order for its decision, except the court’s belief that Youngs had failed to file a response to the motion to compel arbitration and, therefore, the District Court presumed it was well-taken. However, the District Court file indicates that Youngs had, in fact, filed a response.
¶ 12 Six months after the District Court’s order compelling arbitration, the Insurer and Title Company moved for summary judgment based on their allegation that Youngs had refused to comply with the court’s order and submit their dispute to arbitration.
¶ 13 In fact, Youngs had not refused to participate in arbitration, but had refused to advance the anticipated costs of arbitration for the reason that they were financially unable to do so. The American Arbitration Association had apparently sent a stipulation to the parties providing that the arbitrator would be compensated at the rate of $125 per hour during hearings, and $100 per hour for study time, and requesting that each party pay in advance the total expected cost of the arbitrator’s fees, plus his expenses. Youngs stated that they could not financially afford to do so and, therefore, the AAA advised that arbitration would not proceed without satisfactory arrangements for prepayment of fees.
¶14 In response to the Insurer’s motion for summary judgment, Youngs pointed out that William is a self-employed painter with little work to do during the winter months; Gwyn is employed at a local market where she earns $8.25 an hour, but is only guaranteed twenty hours of work per week; that their combined income ranges from $650 to $1350 per month; and that their average expenses exceed $1000 per month. They stated that while they were not refusing to participate in arbitration, based on their financial reality they were unable to prepay or guarantee payment of a proportionate share of the costs and fees for arbitration.
¶15 The District Court granted the motion for summary judgment with no explanation, other than that good cause had been shown. The parties then stipulated to stay further proceedings against Earlys and Coldwell Banker pending Youngs’ appeal from the District Court’s summary judgment order.
DISCUSSION
¶16 Does the title insurance policy issued by Security Union Title Insurance Company include a valid and binding arbitration clause?
¶17 Our standard of review on appeal from summary judgment orders is de novo. Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; 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.
¶18 On appeal, Youngs make the following arguments:
¶19 1. They did not refuse to comply with the District Court’s order compelling arbitration. They simply were unable to prepay costs or guarantee payment of any predetermined proportion of costs. However, there is no statutory requirement that they do so, nor were they required to do so by the rules of the American Arbitration Association;
¶20 2. The District Court erred when it denied Youngs’ motion to stay arbitration because the agreement did not comply with the notice requirements of § 27-5-114(4), MCA (1989);
¶21 3. Arbitration provisions in insurance contracts are invalid pursuant to § 27-5-114(2)(c), MCA; and
¶22 4. The Federal Arbitration Act is inapplicable because the contract in dispute did not involve interstate commerce.
¶23 In response, the Insurer and Title Company contend as follows:
¶24 1. Youngs’ refusal to share in the cost of arbitration equates with a refusal to participate in arbitration and, therefore, was a refusal to comply with the District Court’s order;
¶25 2. Although arbitration provisions in insurance policies are invalid pursuant to § 27-5-114(2)(c), MCA, that section does not apply to title insurance policies; and
¶26 3. Because Youngs accepted the insurance policy in June 1994 without objecting to the arbitration provision, they waived the right to object to it now.
¶27 We conclude that § 27-5-114(2)(c), MCA, is dispositive of Youngs’ appeal.
¶28 Paragraph 14 of Youngs’ policy of title insurance provides that the Insurer may demand arbitration “unless prohibited by applicable law.” The applicable law in Montana provides as follows:
(2) A written agreement to submit to arbitration any controversy arising between the parties after the agreement is made is valid and enforceable except upon grounds that exist at law or in equity for the revocation of a contract. Except as permitted under subsection (3), this subsection does not apply to:
(c) any agreement concerning or relating to insurance policies or annuity contracts except for those contracts between insurance companies ....
Section 27-5-114(2)(c), MCA.
¶29 Neither the Insurer nor the Title Company contend that Montana’s statutory provision exempting insurance policies from arbitration requirements is invalid or otherwise unenforceable as a matter of law. What they do contend is that the provision does not pertain to title insurance policies. However, the defendants offer no authority in support of such a distinction, and Montana statutory law would appear to be to the contrary. Chapter 15, of Title 33, of the Montana Code Annotated, which pertains to insurance contracts, does exclude title insurance from some of its provisions; however, § 33-15-101(4), MCA, specifically makes that part of Chapter 15 which defines an insurance “policy” applicable to title insurance. Section 33-15-102(1), MCA, provides that “ ‘[plolic/ means the written contract of or written agreement for or effecting insurance, by whatever name called, and includes all clauses, riders, endorsements, and papers attached thereto and a part thereof.”
¶30 Therefore, we conclude that when § 27-5-114(2)(c), MCA, provides that arbitration agreements in “insurance policies” are invalid and unenforceable, that provision pertains to title insurance policies, as well as other types of insurance coverage.
¶31 The Insurer contends that similar arbitration provisions have been upheld in other jurisdictions, and cites Fleet Mortgage Corporation v. Lynts (E.D. Wis. 1995), 885 F. Supp. 1187, 1188-90. However, the issue in that case was simply whether a lending institution was bound by the arbitration provision in a title insurance policy when, in fact, it had only been provided with a closing letter and was not a party to the policy. That case did not involve a statutory provision which invalidated arbitration provisions in insurance policies.
¶32 The Insurer also contends that Youngs waived any objection to the arbitration provision by not asserting that objection when the policy was issued in June 1994. In support of that contention, they cite Imperial Savings Association v. Lewis (D. Utah 1990), 730 F. Supp. 1068. However, the issue in Imperial was not whether the arbitration provision in the insurer’s policy was valid and enforceable, the issue was whether the parties had in fact agreed to submit to arbitration in the first place. Therefore, we find Imperial unpersuasive in support of the Insurer’s contention that its insured can waive the statutory protection provided by § 27-5-114(2)(c), MCA. We conclude that Youngs properly asserted their rights pursuant to Montana’s statutory law when they moved for a protective order staying arbitration in a timely manner after arbitration was demanded by the Insurer and the Title Company.
¶33 Because we conclude that the arbitration provision in Youngs’ title insurance policy was contrary to Montana’s statutory law and, therefore, unenforceable, we conclude that the District Court erred when it denied Youngs’ motion to stay arbitration and, therefore, erred when it granted summary judgment to the Insurer and Title Company based on the allegation that Youngs had not cooperated in the arbitration process.
¶34 We reverse the summary judgment order of the District Court and remand this case to the District Court for further proceedings consistent with this opinion.
JUSTICES REGNIER, NELSON, HUNT and LEAPHART concur.
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OPINION AND ORDER
¶1 On December 7,1998, Respondents/Cross- Appellants above named (collectively referred to as Respondents) filed their opening brief on appeal. This brief responds to Appellant’s opening brief and also argues Respondents’ cross-appeal. Respondents’ certificate of compliance states that their response brief contains 13,307 words and that their cross-appeal brief contains 6,856 words. On December 10,1998, we returned this brief to counsel for Respondents indicating that their brief violated the length requirements specified in Rule 27(dXi), M.R.App.P. Respondents have now filed a motion for order allowing them to file an over-length brief along with a supporting memorandum arguing, in the alternative, that their brief complies with Rule 27(dXi), but if not, that they should be allowed to file their 90 page brief with its existing word count of 20,163 words.
¶2 In their motion and memorandum, Respondents argue that under Rules 23(h) and 27(d)(i), M.R.App.P, they are entitled to file a response brief of a length not to exceed 14,000 words and a cross-appeal brief not to exceed 14,000 words. Respondents contend that neither rule limits them to one combined brief of14,000 words. We disagree.
¶3 Under Rule 23, M.R.App.P, there are designated three types of briefs — the brief of appellant (Rule 23(a)), the answer brief of respondent (Rule 23 (b)) and the reply brief (Rule 23(c)). Rule 23(g), M.R.App.R, provides that “[e]xcept by permission of the court, briefs may not exceed the limits specified in Rule 27(d).” Rule 27(d)(i), M.R.App.P., provides that principal briefs (the brief of appellant and the answer brief of respondent) may not exceed 14,000 words, while the reply brief may not exceed 7,000 words.
¶4 Briefs in cases involving cross-appeals are covered under Rule 23(h), M.R.App.P. In pertinent part, this rule provides that:
The brief of the respondent shall conform to the requirements of subdivision (aXl) - (6) of this rule with respect to the respondent’s cross appeal as well as respond to the brief of the appellant except that a statement of the case need not be made unless the respondent is dissatisfied with the statement of the appellant. [Emphasis added.]
¶5 We interpret Rules 23 and 27 together and conclude that the respondent is entitled to file one principal brief — a response brief. If the respondent chooses to file a cross-appeal, this brief must then respond to the brief of the appellant “as well as” brief the cross-appeal. Since one principal brief is authorized for the respondent — albeit that this brief serves two functions —this brief is limited to 14,000 words under Rule 27(d)(i), M.R.App.P.
¶6 While we tend toward liberally granting motions to exceed the word limits of briefs where good cause is shown and where the complexity or importance of the case necessarily demands extended briefing, we, nonetheless, remind counsel that the time and resources of this Court are already limited and are becoming more so with each year’s increase in numbers of new filings. In the case at bar, Respondents’ brief exceeds the word limitations of Rule 27(dXi) by in excess of 6,000 words. There is nothing particularly unusual or complex about the legal issues raised in the appeal or in the cross-appeal. Accordingly, we are presented with no compelling reason why Respondents cannot fiilly respond to the Appellant’s brief and fully argue their cross-appeal within the 14,000 word limitation of Rule 27(d)(i).
¶7 IT IS ORDERED that Respondents’ motion to file an over length brief is DENIED.
¶8 IT IS FURTHER ORDERED that Respondents’ shall have 30 days in which to revise their brief to comply with this order. Appellant’s times for further briefing are extended accordingly.
¶9 IT IS FURTHER ORDERED that the Clerk of this Court give notice of this order by mail to counsel of record.
Dated this 17th day of December 1998.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT, REGNIER, LEAPHART and TRIEWEILER
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] |
On March 5,1998, the defendant was sentenced to forty (40) years in the Montana State Prison, with fifteen (15) years suspended. The defendant is to be ineligible for parole until he completes the Criminal Thinking Errors, Moral Reconation, anger management, and chemical dependency treatment programs available at the prison; undergoes a complete mental health evaluation; and until defendant is tested for HIV and releases the results of that test to his supervising officers and to R.M.
On November 5, 1998, 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 Phyllis Quatman. The state was represented by Ed Corrigan.
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 to 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 provides: “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.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insuffi cient to hold that the sentence imposed by the District Court is inadequate or excessive.
Done in open Court this 5th day of November, 1998.
DATED this 30th day of November, 1998.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Phyllis Quatman and Ed Corrigan for representing Mr. Bartle and the State in this matter.
|
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] |
On June 17,1998, the defendant was sentenced to five (5) years in the Montana State Prison, with credit given for 125 days previously served.
On November 5, 1998, 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 Lucas J. Foust. 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 to 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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to five (5) years to the Department of Corrections, rather than five (5) years in the Montana State Prison.
The reasons for the amendment are the fact that this was the defendant’s first felony offense, consideration of the sentences given to the co-defendants, and that the defendant will receive more appropri ate treatment with a Department of Corrections commitment, than with a Montana State Prison commitment.
Done in open Court this 5th day of November, 1998.
DATED this 30th day of November, 1998.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Jeffrey H. Langton and Member, Hon. Richard G. Phillips.
The Sentence Review Board wishes to thank Lucas J. Foust for representing Mr. Calder in this matter.
|
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] |
On April 14,1998, the Defendant was sentenced to the following: DC 97-635 - Count I: Five (5) years in the Montana Women’s Prison, to run consecutively with the sentences presently serving; Count II: Five (5) years in the Montana Women’s Prison, to run concurrently with Count I of this Cause; Count III: Six (6) months imprisonment in the YCDF, to run concurrently with Counts I and II of this Cause. Defendant shall receive credit for 209 days already served. DC 97-715 - Five (5) years in the Montana Women’s Prison, to run concurrently to the sentence imposed in DC 97-635. DC 98-223 - Three (3) years in the Montana Women’s Prison, to run consecutively to the sentence in DC 97-635. DC 98-229 - Count I: Three (3) years in the Montana Women’s Prison, to run consecutively to the sentence in DC 97-635; Count II: Three (3) years in the Montana Women’s Prison, to run consecutively to the sentence in DC 97-635; Count III: Six (6) months in the YCDF, to run concurrently with Count I and II; Count TV: Six (6) months in the YCDF, to run concurrently with Count I and II; and Count V: Six (6) months in the YCDF, to run concurrently with Count I and II.
On September 18,1998, 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 18th day of September, 1998.
DATED this 29th day of October, 1998.
The defendant was present and was represented by Tara Javid. The state was represented by Margaret Gallagher.
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 to 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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that in all judgments, the place of imprisonment shall be designated as the Department of Corrections, striking therefrom Montana Women’s Prison; the sentence imposed in Cause No. 98-223 shall be suspended in its entirety; and the Defendant is ordered to make restitution in all Causes.
The reasons for the amendments are to make the sentences agreeable with the previous decisions of the Sentence Review Division and to maintain uniformity in sentencing.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Tara Javid and Margaret Gallagher for representing Ms. Humphrey and the State in this matter.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 Hal Bolinger filed a petition for probate of the will of his son, Harry Albert Bolinger, III (Bud), in the District Court for the Eighteenth Judicial District in Gallatin County. The decedent’s three children, as well as the personal representative who had been appointed prior to the discovery of the will, contested the will and asserted, among other things, that the decedent’s estate was entitled to a share of the partnership that they claim Hal had formed with Bud. The District Court concluded that a partnership existed and awarded the estate half of the value of the partnership assets. Hal and his spouse appeal and the estate cross-appeals. We reverse in part and affirm in part the judgment of the District Court and remand this case to the District Court for proceedings consistent with this opinion.
¶2 The parties present eleven issues on appeal:
¶3 1. Did the District Court err when it ordered the appellants to comply with the estate’s discovery requests?
¶4 2. Did the District Court err when it made findings of fact and granted summary judgment regarding the existence of a partnership between Hal and Bud?
¶5 3. Did the District Court err when it refused to admit a number of appellants’ exhibits?
¶6 4. Did the District Court err when it denied by summary judgment the existence of an agister’s lien?
¶7 5. Did the District Court err when it awarded one-half of the market value of the ranch equipment and cattle to the estate?
¶8 6. Did the District Court err when it refused to hold the estate accountable for the value of any of the losses from the ranch?
¶9 7. Did the District Court err when it awarded the estate a $9000 credit based on Hal’s denial of the estate’s attempts to cut and remove hay from the decedent’s land?
¶10 8. Did the District Court err when it awarded the estate a $40,500 credit based on Hal’s denial of the estate’s attempts to use certain pasture land?
¶11 9. Did the District Court err when it determined that the judgment constituted a lien against all the personal property of the partnership?
¶12 10. Did the District Court err when it refused to recognize the real property of the ranch as an asset of the partnership?
¶13 11. Is the estate entitled to attorney fees and costs?
FACTUAL BACKGROUND
¶14 Harry Albert Bolinger, III (Bud) died March 25,1995. He was survived by his three adult children, as well as his father and stepmother. Intestacy proceedings were initiated, and in April 1995 Deborah Reichman became personal representative of the estate.
¶ 15 On July 13,1995, H.A. Bolinger (Hal), Bud’s father, submitted a will for probate and petitioned the District Court for appointment as personal representative. The will, which was prepared in 1984, left all of Bud’s estate to Hal and nominated him as the personal representative. In the event that Hal failed to survive Bud, the will named Marian Bolinger, Hal’s wife, as the sole beneficiary. On November 1,1995, Hal withdrew his request to be appointed personal representative and suggested that Marian, who was also nominated by the will, be named personal representative.
¶16 This Court discussed the terms of the will in In re Estate of Bolinger (1997), 284 Mont. 114, 943 P.2d 981. In dispute was whether the language of the will created an express trust for the benefit of Bud’s three children. We ultimately held that it did not.
¶ 17 Pursuant to the will contest, the estate filed discovery requests and moved for partial summary judgment. Hal and Marian objected to some of the requests that related to taxes and assets of the ranch, and the existence of a partnership between Hal and Bud on the basis that they were not relevant to the issue of the will’s validity. In December 1996, the District Court overruled their objections and ordered that they answer the requests and allow an inspection of the ranch by the end of January 1997.
¶18 After a hearing, and based on all the evidence before it, on December 18,1996, the District Court made findings of fact and conclusions of law in response to the summary judgment motion. It stated that “[i]n the interest of judicial economy, the Court feels it advisable to make detailed findings at this time, to assist in determining other issues which may hereafter need to be determined.” Most of the District Court’s findings and conclusions pertained to the terms of the will, but in addition, the District Court found that Hal and Bud had entered into a written partnership agreement in 1968. It found that despite the express ten-year term of the agreement, Hal and Bud operated the ranch as a partnership until Bud’s death. In addition, it found that Hal had filed a $49,000 claim against the estate, based on an agister’s lien claim, to recover for his expenses incurred to feed Bud’s cattle from January 1,1994, to May 15,1995; Reichman denied the claim in June 1995 prior to the discovery of the will. It went on to find that there were no written documents regarding the terms of the alleged agreement, and that Marian, the only witness to Hal and Bud’s agreement, had described the extent of the agreement as a statement by Hal and subsequent acknowledgment by Bud that he would “have to pay his share.”
¶19 Based on the District Court’s findings, the estate made a second motion for partial summary judgment in January 1997. It contended that the findings established the existence of a partnership and that the District Court should order an accounting of the partnership. Furthermore, it contended that the agister’s lien should be denied in its entirety as a matter of law, based on a lack of specificity in the alleged agreement between Hal and Bud. In response, Hal and Marian contended that their affidavits established genuine issues of fact re garding the hen which precluded summary judgment, and that summary judgment regarding the existence of a partnership must be denied for the same reason.
¶20 On February 25,1997, the District Court concluded that the alleged agreement between Hal and Bud, which was the basis of Hal’s claimed agister’s hen, was not specific and, therefore, was unenforceable as a matter of law. The District Court also concluded, based on Hal’s testimony, that a partnership existed. Accordingly, it granted the motion for partial summary judgment and ordered that an accounting be performed.
¶21 The accounting was eventually performed and considered by the District Court at a hearing in May 1997. On September 3,1997, the District Court issued its findings of fact, conclusions of law, and judgment pursuant to the accounting, in which it determined the amount of ranch property that should be credited to the estate. Based on its interpretation of the partnership agreement, the District Court concluded that the land on which the partnership operation was conducted was never intended to be an asset of the partnership and excluded its value from the determination of the estate’s interest. The division and valuation of the remaining partnership assets relied, in large part, on the fact that Hal and Marian had refused to respond to Reichman’s discovery requests and the District Court’s subsequent orders to compel, so that they were estopped from contesting the values or division arrived at by the District Court.
¶22 The judgment awarded Bud’s estate included one-half the market value of the partnership cattle and equipment, and compensation for lost use of pasture land and hay taken from Bud’s land, for a total of approximately $225,000. Finally, the District Court held that the judgment constituted a hen against all personal property of the partnership.
ISSUE 1
¶23 Did the District Court err when it ordered the appellants to comply with the estate’s discovery requests?
¶24 We review a district court’s ruling on discovery matters to determine whether the district court abused its discretion. See McKamey v. State (1994), 268 Mont. 137, 145, 885 P.2d 515, 520; In re Marriage of Caras (1994), 263 Mont. 377, 384, 868 P.2d 615, 619. We stated in Massaro v. Dunham (1979), 184 Mont. 400, 404-05, 603 P.2d 249, 251-52, that a district court has inherent discretionary power to control discovery, and that we will reverse its discovery decisions only when the substantial rights of a party have been materially affected such that there exists the possibility of a miscarriage of justice.
¶25 Appellants concede that the District Court has discretionary authority to control discovery, but rely solely on their assertion that “such discretionary power is not unfettered.” They imply that the District Court abused its discretion when it did not hold a hearing to address their objections.
¶26 We note from our review of the record that the discovery about which appellants now complain had been the subject of a previous order by the District Court and that prior to the order complained of on appeal, appellants did in fact have an opportunity to raise their objections at a hearing before the District Court. For these reasons, we conclude that the appellants’ substantial rights have not been affected by the District Court’s order to compel discovery.
ISSUE 2
¶27 Did the District Court err when it made findings of fact and granted summary judgment regarding the existence of a partnership between Hal and Bud?
¶28 The question of whether a partnership exists constitutes a mixed question of fact and law. See Blocker Exploration Co. v. Frontier Exploration, Inc. (Colo. 1987), 740 P.2d 983, 988. Courts must decide as a matter of law what constitutes a partnership, but the determination of whether the evidence in a given case supports the existence of a partnership is a question of fact. See Simons v. Northern Pac. Ry. Co. (1933), 94 Mont. 355, 369, 22 P.2d 609, 614; see also Blocker Exploration, 740 P.2d at 988; Pruitt v. Fetty (W. Va. 1964), 134 S.E.2d 713, 716. “However, where the facts are undisputed, or susceptible of only one inference, the question as to whether a partnership exists between particular persons is one of law for the court.” Pruitt, 134 S.E.2d at 716.
¶29 We review a district court’s findings of fact to determine whether they are clearly erroneous. See Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We review a district court’s conclusions of law to determine whether its interpretation is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶30 Appellants contend first that the District Court erred when it even addressed the existence of a partnership pursuant to the will contest and without requiring Reichman to initiate a separate action against Hal to determine his rights. Among other claims, they con tend that the absence of a separate action denied Hal a fair opportunity to contest the claimed partnership. We disagree.
¶31 We have held that it is entirely appropriate and necessary for a district court to make findings of fact on those matters for which there is evidence in the record and to determine the issues as raised by the parties’ pleadings. See Watkins v. Williams (1994), 265 Mont. 306, 314-15, 877 P.2d 19, 24; Heller v. Osburnsen (1973), 162 Mont. 182, 188-89, 510 P.2d 13, 16-17; see also In re LaBelle (Wash. 1986), 728 P.2d 138, 152. Here, the children’s and estate’s objection to probate of Hal’s proffered will expressly raised the existence of a partnership between Hal and Bud as a potential barrier and put the matter before the District Court. Furthermore, the District Court’s fundamental authority in this matter pertains to the administration of the estate and, as such, a determination of the property interests that Bud owned was essential to a final resolution.
¶32 The District Court noted in its order that its December 18,1996, findings were motivated in part by judicial economy, and the question of a partnership, even if not the single focus of the particular hearing to which appellants refer, was ultimately a necessary part of this case. Appellants’ claim that they were denied the opportunity to contest the claim of a partnership is contradicted by the subsequent occasion they had to brief and argue at the February 1997 hearing regarding partnership issues. Moreover, they present no authority for their position that a separate action was required. Accordingly, we conclude that the District Court did not err when it addressed the existence of a partnership.
¶33 Appellants also contend that the District Court erred in substance when it found that the ranch operation constituted a partnership, and eventually ordered an accounting pursuant to the estate’s motion for summary judgment.
¶34 We most recently discussed the elements of a partnership in MacArthur Co. v. Stein (1997), 282 Mont. 85, 934 P.2d 214. Section 35-10-202(2), MCA, generally defines a partnership as “the association of two or more persons to carry on as co-owners a business for profit... whether or not the persons intend to create a partnership.” A partnership exists where: (1) the parties clearly manifest their intent to form a partnership; (2) each party contributes something to promote the partnership; (3) each party has a right of mutual control over the subject of the partnership; and (4) there is an agreement among the parties to share the profits of the enterprise. See Bender v. Bender (1965), 144 Mont. 470, 480, 397 P.2d 957, 962. All four requirements must be established to prove the existence of a partnership. See MacArthur, 282 Mont. at 89, 934 P.2d at 217; Weingart v. C & W Taylor Partnership (1991), 248 Mont. 76, 79-80, 809 P.2d 576, 578.
¶35 Here, Hal and Bud executed a written partnership agreement in 1968. The agreement set forth the parties’ relationship and their rights and duties in satisfaction of each of the four elements. Most importantly, the terms and title of the agreement as a whole clearly establish that they intended to operate the ranch as a partnership. Appellants apparently contend that in spite of the agreement, Hal and Bud were never formal partners, even during the ten-year duration of the agreement. They rely on tax records and testimony that referred to the ranch as Hal’s and to Bud as Hal’s “hired man.” Their position, however, ignores the effect of Hal’s own testimony.
¶36 The following excerpt from Hal’s deposition established his intent with regard to his and Bud’s relationship:
Q. [Y]ou and Bud sort of worked together on the ranch. Am I correct in that?
A. Yeah. As long as he was there, why, that’s right.
Q. And did you make the decisions together, in terms of what you do on the ranch, what kind of cattle you’d run, that sort of thing?
A. Everything was agreeable, anything between the two of us, I think. I don’t recall any — anything else to it. We have cattle, and that’s it.
Q. And that sounds like a partnership. Is that how you would characterize it?
A. A partnership?
Q. Yes.
A. I think that would be right. Whatever — whatever is done, we probably talked to each other as to why we were doing it.
Q. And is that pretty much the way it was from the time Bud started living there on the ranch to the time that he died?
A. I think that would be correct. Things changed some. I guess that’s about as close as we can come.
Q. This partnership agreement was for the running of your ranch, wasn’t it?
A. I think that’s — yes. That’s what we were trying to do, is operate with it that way, I guess.
Q. Now, this was for a partnership for a term. It was for ten years, according to the document. Do you — did you just go on after that ten years and keep kind of doing the same thing?
A. I don’t remember any ten years looking at it or working with it or talking with each other about it.
Q. You just sort of did the same thing from beginning to end?
A. That’s right.
¶37 We conclude, based on the record before us and the law applicable to partnerships, that there was no material issue of fact regarding the ranch’s operation as a partnership.
¶38 The District Court aptly characterized the nature and full extent of the evidence that appellants offered in response to the summary judgment motion as mere statements “that none of the affiants heard that Buddy Bolinger was a partner with H.A. Bolinger in the operation of the ranch.” Regardless of how Hal referred to the ranch operation in his tax returns, the partnership agreement, together with the unchallenged fact that Hal and Bud did not change their relationship or operation after the expiration of the agreement, permit only one conclusion. Accordingly, we conclude that a partnership existed, and we affirm the District Court’s decision granting judgment to the estate as a matter of law on that issue.
ISSUE 3
¶39 Did the District Court err when it refused to admit a number of appellants’ exhibits?
¶40 We review the evidentiary rulings of a district court to determine whether it abused its discretion. A district court has broad discretion to determine if evidence will be admitted and absent an abuse of that discretion we will not overturn a district court’s determination. See In re Marriage of Meeks (1996), 276 Mont. 237, 249, 915 P.2d 831, 838.
¶41 Appellants attempted at the accounting hearing, after the District Court had already conclusively determined that the ranch constituted a partnership, to offer a number of exhibits as evidence that the ranch was in fact not operated as a partnership. The District Court refused to admit those exhibits and appellants assert here that it erred by doing so.
¶42 With the exception of one exhibit, appellants make no claim that their failure to present the evidence prior to summary judgment was for any legitimate reason. They made no request for an extension of time when the District Court was considering the issue of whether the ranch constituted a partnership, nor do they suggest now that the exhibits became available only after the District Court’s initial decision. We have held that when a party has had sufficient opportunity to present evidence during the summary judgment process, a district court does not necessarily have to consider the evidence and revisit the merits of the claim. See State Med. Oxygen & Supply, Inc. v. American Med. Oxygen Co. (1994), 267 Mont. 340, 883 P.2d 1241. Accordingly, we conclude that the District Court did not abuse its discretion when it refused to admit evidence related to the partnership issue after it had been decided.
ISSUE 4
¶43 Did the District Court err when it denied by summary judgment the existence of an agister’s lien?
¶44 When the facts are not in dispute, whether an oral contract exists constitutes a question of law which shall be reviewed to determine whether the district court’s interpretation of the law is correct. See Reese v. Forsythe Mergers Group, Inc. (Ill. Ct. App. 1997), 682 N.E.2d 208, 213; see also Employee Benefits Plus, Inc. v. Des Moines Gen. Hosp. (Iowa Ct. App. 1995), 535 N.W.2d 149; Herm Hughes & Sons, Inc. v. Quintek (Utah Ct. App. 1992), 834 P.2d 582. The parties’ only dispute here is whether the alleged language of the agreement created an enforceable contract.
¶45 The agister’s hen at issue is based on an agreement allegedly made by Hal and Bud during a conversation in January 1994. Marian, who was present during their conversation regarding the cattle that Hal had just gifted to Bud, testified in her deposition that the entire oral agreement was the statement from Hal — "Buddy, you understand you have to pay your share" — and Bud’s response — "Of course." The District Court relied on the lack of a specific response from Bud, the uncertainty of the agreement, and on the lack of any specific terms by which to interpret the agreement as the basis for summary judgment in favor of the estate on this issue.
¶46 On appeal, appellants point out that pursuant to § 71-3-201(1), MCA, an agister’s lien can be founded on an express or implied contract. They also assert that based on Heckman & Shell v. Wilson (1971), 158 Mont. 47, 57, 487 P.2d 1141, 1146, the lien is valid despite the lack of a specific, agreed-upon price, and can be enforced for a “reasonable value of the services rendered.” The estate contends that the agreement here is indistinguishable from the agreement that we held too uncertain to constitute a contract in Bishop v. Hendrickson (1985), 215 Mont. 158, 695 P.2d 1313. InBishop, one lawyer in a partnership tried to enforce against his partner their agreement that “there would be a place... in the law firm” for any of their children who became lawyers and wanted to practice with the firm. We held that the agreement left too many details unaddressed, and that it was too uncertain to be enforceable as a contract.
¶47 While we acknowledge appellants’ contention that pursuant to Wilson an agister’s hen may be enforceable without further specification in the underlying agreement regarding the price for the services, we conclude here that the conversation between Hal and Bud is too vague as a matter of law to establish an enforceable contract. For example, we effectively held in Somont Oil Co. v. Nutter (1987), 228 Mont. 467, 472, 743 P.2d 1016, 1019, that, at a minimum, the material elements of a contract must be present in general terms. Not only are those material terms missing here, but as we also discussed in Bishop, the agreement between Hal and Bud creates even more questions about the parties’ expectations than it does purported certainties about their alleged obligations to perform. Accordingly, we conclude that the agreement on which appellants rely for their claim of an agister’s lien against the estate is unenforceable, and we affirm the District Court’s denial of the lien by summary judgment.
ISSUE 5
¶48 Did the District Court err when it awarded one-half of the market value of the ranch equipment and cattle to the estate?
¶49 Appellants contend that the 1968 partnership agreement established the value of the partnership and that the terms of the agreement should govern the amount to which the estate is entitled. They assert that the District Court erred when it did not follow the terms of the agreement but instead awarded the estate one-half of the market value of the partnership property.
¶50 Montana law provides that when a partnership agreement exists, it controls the rights and duties of partners. See § 35-10-106, MCA. Moreover, when partners continue a partnership beyond the expiration of the partnership agreement, their rights and duties remain the same as they were at the expiration of the agreement, effectively extending the force of the agreement to the partnership for as long as the partners continue the business or until they modify the agreement. See § 35-10-406, MCA.
¶51 The partners’ right to control their relationship via the agreement, and in particular to restrict the value of their respective shares upon death or dissolution, is so well-established that courts will enforce a value in the agreement even if the value to which a partner is entitled is substantially lower than the actual market or book value of his share.See G & S Investments v. Belman (Ariz. Ct. App. 1984), 700 P.2d 1358, 1367; In re Estate of Johnson (Ill. Ct. App. 1984), 472 N.E.2d 72, 74-75. For such a limitation to be valid, however, the partners must have explicitly agreed to a value of their potential share at something other than fair market value. See Anderson v. Wadena Silo Co. (Minn. 1976), 246 N.W.2d 45, 46-48; Bohn v. Johnson (N.D. 1985), 371 N.W.2d 781, 788-89; Bohn v. Bohn Implement Co. (N.D. 1982), 325 N.W.2d 281, 285.
¶52 Here, the agreement establishes a value ($47,790.30) for the partnership and states that that value shall control in the event of a sale or dissolution of the partnership. The terms also state that the partners shall, for the duration of the agreement, arrive annually at a new and updated value, which will serve for the following year as the value of the partnership. In the event of Hal’s or Bud’s death, the agreement gives the surviving partner the right to purchase the deceased partner’s interest at the value established in the agreement, with one-fourth of the purchase price due within six months of the death. However, the terms set forth were not followed.
¶53 First, Hal and Bud did not reestablish a different value for the partnership as contemplated in the agreement. Therefore, the only value established by the partnership is the original 1968 amount of $47,790.30, an amount which neither of the parties suggests reflects its present value. Second, Hal has made no effort to purchase Bud’s interest in the partnership.
¶54 A partnership agreement is essentially a contract between the partners and, therefore, is to be interpreted and applied in accordance with principles of contract law. See Argianas v. Chestler (Ill. Ct. App. 1994), 631 N.E.2d 1359, 1368; Klein v. Weiss (Md. 1978), 395 A.2d 126, 141. Where language in a contract is clear and unambiguous, it is a court’s duty to simply apply the language. See Molerway Freight Lines, Inc. v. Rite-Line Transp. Serv., Inc. (1995), 273 Mont. 95, 100, 902 P.2d 9, 12; Carbon County v. Dain Bosworth, Inc. (1994), 265 Mont. 75, 87, 874 P.2d 718, 726. On the one hand, the contract is absolutely clear and unambiguous as to what the parties intended regarding the partnership’s valuation and, likewise, as to what that value was at the time that they entered the agreement. This issue turns, however, on the fact that the parties’ failure to comply with the agreement and to reassess the value of the partnership conflicts with their expression of intent and creates now a manifest ambiguity as to the value of the partnership thirty years after its creation.
¶55 Other courts have had to interpret and apply ambiguous partnership agreements similar to the one here when partners failed to establish a value for partnership property. In each case, the court held that fair market value at the time of the partner’s death should apply. See Curtis v. Campbell (Ky. Ct. App. 1960), 336 S.W.2d 355, Anderson, 246 N.W.2d 45; Chapman v. Dunnegan (Mo. Ct. App. 1984), 665 S.W.2d 643; Bohn Implement Co., 325 N.W.2d 281.
¶56 Chapman involved facts very similar to this case. The partnership agreement called for the partners to value the real estate owned by the partnership on an annual basis; additional language which is not present in Hal’s and Bud’s agreement stated that if in a given year the partners failed to value the property, the previous year’s value stood. Like here, however, the partners failed to follow the terms of the agreement and never established a value for the property. The estate urged that a fair market value should be assigned to the property, while the remaining partners contended that its book value should control. The court provided the following analysis:
The partners’ failure to comply with the expressed method for valuing partnership real estate was, in effect, an abandonment of that method and left the partnership agreement without a provision for valuing partnership real estate. In the absence of a provision in the partnership agreement, the relevant provisions of the [statute]... are persuasive. [The statute] provides that the legal representatives of a deceased partner shall receive “an amount equal to the value of his interest in the dissolved partnership” at the time of dissolution. ... The prevailing view among [other] courts is that, upon the dissolution of a partnership by death, fair market value must be used to evaluate the deceased partner’s interest if the partnership agreement does not specify the method of valuing partnership assets or the method provided was not complied with.
The rationale for this view is not difficult to understand.... [A] fair market value represents the real value of the partnership holdings — the value that the partners would receive if they sold the business. At common law, when a partner died or retired, surviving partners were required to liquidate the business and distribute the proceeds. The Uniform Partnership Act permits the surviving partners to continue the business, but requires them to pay to the decedent’s legal representatives the value of the decedent’s interest. ... Measuring “the value of his interest” at its actual fair market value, when no other method is expressed, is the only sensible method to preserve the estate’s right to the decedent’s fair share.
Chapman, 665 S.W.2d at 649-50 (citations omitted).
¶57 Appellants contend that insofar as the agreement here establishes a value, it has more force and is thus distinguishable from the agreements in the cases above which either did not establish a value or referred only to an imprecise valuation term. As in Chapman, however, Hal and Bud essentially abandoned their method of valuation, the effect of which was to abandon whatever explicit agreement they reached regarding the 1968 valuation and its potential ability to serve as (i.e., limit) the value for the partnership in subsequent years. It was clearly not their intent that the 1968 figure would serve as the value in future years, nor should we now default to that value simply because they failed to establish a new one. Rather, like in Chapman, we are guided by the statute, which suggests that upon dissociation a partner is entitled to the greater of either the liquidation value or the fair market value at the date of dissociation. See § 35-10-619(2), MCA. While the statute is not directly applicable here, we note the policy reflected therein and we agree with the court’s rationale in Chapman and its conclusion that fair market value at the time of a partner’s death should apply when partners have failed to comply with the terms of their agreement and are thus left without an explicitly agreed upon value for the partnership. Accordingly, we affirm the District Court’s award to the estate of fair market value for the partnership assets.
ISSUE 6
¶58 Did the District Court err when it refused to hold the estate accountable for the value of any of the losses from the ranch?
¶59 Appellants contend that for purposes of a final settlement, half of the losses suffered by the partnership should be assigned to the estate. They contend that because the losses for which the estate is allegedly responsible are greater than the assets to which it is entitled, nothing is owed to the estate from the partnership.
¶60 The District Court found that “Hal took the tax benefit of all the [partnership] losses and... cannot now claim that any loss should be attributed to Bud.” It concluded that in addition to the benefit from the losses “he must also bear the burden,” and, therefore, that he is effectively precluded from trying to assign a share of the losses to the estate. In response to the District Court’s conclusion, appellants distinguish between Hal having claimed the losses on his income tax returns and having assumed total responsibility for the losses.
¶61 It is well-established that partners can agree to the precise division of partnership profits and losses. See § 35-10-106, MCA; see also Walsh v. Chestnut Hill Bank & Trust Co. (Mass. 1993), 607 N.E.2d 737, 743; Smith v. Daub (Neb. 1985), 365 N.W.2d 816, 820; Bucholtz, P.C. v. Computer Based Sys., Inc. (Va. 1998), 498 S.E.2d 231, 233. An agreement not to share losses (or profits) equally need not be made expressly, but may be implied from the partners’ conduct. See Daub, 365 N.W.2d at 820. We may also infer in part from the nature of the partnership whether the partners intended to share losses. See Devereaux v. Cockerline (Or. 1946), 170 P.2d 727. For example, in Devereaux, the court found it “improbable” that either party would have contemplated that they would share losses as a result of their investment, based on the fact that the more affluent partner contributed the capital and the other partner’s contribution consisted of his time and energy toward the business. See Devereaux, 170 P.2d at 733-34.
¶62 It is not disputed that Hal claimed all of the partnership’s losses on his personal taxes for the purpose of receiving a tax benefit, or that Hal and Bud were equal partners. The only contested issue is what effect, if any, Hal’s acceptance of the annual losses has on Hal’s and Bud’s capital interests during an accounting of the partnership. Neither party provides any authority for their position, and the extent of the District Court’s support for its conclusion is the principle that he who receives the benefit of an act must also bear its burden. We conclude that under the circumstances in this case, the District Court was correct when it held that a partner is bound, at least in part, by his treatment of partnership liabilities.
¶63 Section 704(a) of the Internal Revenue Code permits partners to allocate amongst themselves their respective share of partnership income and losses. Section 704(b) also provides that the IRS will respect an allocation for tax purposes only if the allocation meets certain conditions, including that the allocation have “substantial economic effect.” Generally, that means that an allocation must be consistent with the partners’ basic economic interests in the partnership in order to be recognized by the IRS. See Orrisch v. Commissioner (T.C. 1970), 55 T.C. 395, aff’dper curiam (9th Cir. 1973) (unpublished deci sion). “[I]n the event there is an economic benefit or economic burden that corresponds to an allocation, the partner to whom the allocation is made must receive such economic benefit or bear such economic burden.” Treas. Reg. § 1.704-l(b)(2)(ii). Consequently, an allocation will have substantial economic effect, and thus be respected by the IRS, only if the partners’ ultimate equity interests in the partnership, regardless of tax consequences, are affected. See Treas. Reg. § 1.704- l(b)(2)(iii)(a).
¶64 Internal Revenue Code § 704(b) compels that we rely on Hal’s conduct throughout the fife of the partnership and on the fact that the IRS recognized Hal’s personal tax claims to 100% of the partnership losses, from which it follows that Hal’s returns conclusively establish his responsibility for 100% of the losses.
¶65 We conclude that the intent of the parties was evidenced by both the fact that Hal did not attempt to assign any of the losses to Bud and by the general nature of their relationship, to which Bud contributed primarily his energy and Hal his capital.
¶66 More generally, we hold that where partners have exercised their right to allot partnership losses in some fashion other than in equal proportion to their division of profits, that division of losses shall control for purposes of determining responsibility for the losses during settlement. Accordingly, we conclude that the District Court did not err when it refused to allocate any of the partnership losses to the estate and thus refused to diminish the value of its interest in the partnership.
ISSUE 7
¶67 Did the District Court err when it awarded the estate a $9000 credit based on Hal’s denial of Reichman’s attempts to cut and remove hay from the deceased’s land?
¶68 Appellants assert here that the District Court should not have considered the estate’s claim against appellants for the alleged removal of hay from Bud’s land. They contend that the issue was beyond the scope of the accounting hearing because the estate’s interference claim was not specifically listed in the pretrial order.
¶69 The funds in dispute involve hay grown on Bud’s land. Due to a misplaced fence that separated their land from Bud’s, appellants used the land and received two hay crops which the District Court found to have a value of $4500 each. Appellants do not contest any of the following findings, all of which are supported by our review of the record: (1) that the fence is not on the boundary; (2) that they were on notice from Reichman in July 1995 regarding the misplacement of the fence; and (3) that the hay had a value of $9000. Their only allegation is that the District Court erred when it considered the claim at the accounting hearing and made subsequent findings and an award as a result.
¶70 As we stated above, the District Court has the authority and the responsibility to address matters raised by the pleadings. Here, the pretrial order lists among the estate’s contentions the misplaced fence. As such, appellants should have been aware that the hay proceeds were an issue, and that it was within the District Court’s authority to resolve it and all other matters regarding the estate’s financial interest in all income derived from both Bud’s property and the partnership land. Their only objection to the matter came in closing argument at the end of the hearing when they alleged that the estate’s claim “goes way beyond” the contentions in the pretrial order. Although the appellants claim lack of notice, they made no request for an extension of time in which to address the claim. In addition, they have not challenged the merits of the District Court’s findings. Accordingly, we affirm the District Court.
ISSUE 8
¶71 Did the District Court err when it awarded the estate a $40,500 credit based on Hal’s denial of the estate’s attempts to use certain pasture land?
¶72 Appellants make the same argument that they made regarding the hay proceeds. The facts involve a pasture lease which Reichman alleges appellants wrongfully prevented the estate from using in 1995. Due to its inability to use the pasture, the estate was forced to sell cattle prematurely, which the District Court found resulted in a loss of $40,500. Once again, there is evidence in the record to support the District Court’s findings, no challenge has been made to the findings, and appellants apparently claim only that this matter should have been decided at a later time.
¶73 Our review shows that the pasture lease was specifically mentioned in the pretrial order, albeit as an ancillary issue. We further recognize that, like their response to the hay proceeds claim, appellants made only a vague objection at closing argument to the estate’s claim regarding the pasture lease. Accordingly, for the reasons stated previously, we affirm the District Court.
ISSUE 9
¶74 Did the District Court err when it determined that the judgment constituted a hen against all the personal property of the partnership?
¶75 The District Court stated that its judgment “constitutes a lien against all personal property of the Partnership.” Appellants assert that based on § 25-9-301(2), MCA, the District Court lacked authority to create a lien against personal property. Rather, they contend that a judgment cannot become a hen against personal property until there has been an execution to enforce the judgment. The estate’s only response is that the District Court has equitable power to control the partnership’s assets.
¶76 Contrary to the estate’s position, however, there is no authority for a district court to summarily convert a judgment to a hen against personal property. Section 25-9-301(2), MCA, states that “[f]rom the time the judgment is docketed, it becomes a hen upon ah real property of the judgment debtor.” With regard to personal property, which, unlike real property, is not referred to in the statute as subject to a hen immediately when a judgment is docketed, a hen does not arise prior to execution on that property. For these reasons, we reverse the District Court’s creation of a hen against the personal property of the ranch.
ISSUE 10
¶77 Did the District Court err when it refused to recognize the real property of the ranch as an asset of the partnership?
¶78 The District Court concluded that “[i]t was never intended by the [partners] that the land referred to in the Agreement should become an asset of the partnership to be distributed or taken into account on the dissolution of the partnership or death of a partner.” On that basis, it concluded that the partnership did not own the land and consequently made no award to the estate based upon its interest in the real property.
¶79 On cross-appeal, the estate contends that it is entitled to a share of the value of the real property. In reliance on § 35-10-203, MCA, it asserts that the land was acquired with partnership assets and therefore became partnership property. In the alternative, it asserts that because equitable principles require the inclusion of the land among the partnership assets, a resulting trust is created for the estate’s benefit. Appellants contend in response that the partnership agree ment clearly reflects the partners’ intent to preserve the real property as solely Hal’s property and not to transfer ownership to the partnership.
¶80 Section 35-10-203(4), MCA, states:
Property is presumed to be partnership property if purchased with partnership assets even if not acquired in the name of the partnership or of one or more partners with an indication in the instrument transferring title to the property of the person’s capacity as a partner or of the existence of a partnership.
As reflected in the statute, property is merely presumed to become property of the partnership if it is acquired with partnership assets. The presumption is rebuttable and may be overcome. See Mehl v. Mehl (1990), 241 Mont. 310, 314, 786 P.2d 1173, 1176;In re Perry’s Estate (1948), 121 Mont. 280, 287-88,192 P.2d 532, 536.
¶81 Whether property belongs to the partnership depends primarily on the intent of the partners. See Mehl, 241 Mont. at 314, 786 P.2d at 1175; Perry’s Estate, 121 Mont. at 287, 192 P.2d 532, 536; see also Norman v. Bozeman (Ala. 1992), 605 So. 2d 1210, 1213; Shumway v. Shumway (Idaho 1984), 679 P.2d 1133, 1139; Matter of Allen’s Estate (Iowa 1976), 239 N.W.2d 163, 166; Stafford v. McCarthy (Mo. Ct. App. 1992), 825 S.W.2d 650, 656-57; Mischke v. Mischke (Neb. 1995), 530 N.W.2d 235, 240; Bassett v. Bassett (N.M. 1990), 798 P.2d 160, 166-67; Eckert v. Eckert (N.D. 1988), 425 N.W.2d 914, 916; Gorger v. Gorger (Or. 1976), 555 P.2d 1, 9; In re Rider’s Estate (Pa. 1979), 409 A.2d 397, 400; In re Schaefer’s Estate (Wis. 1976), 241 N.W.2d 607, 609-10. The partners’ intent may be inferred from a variety of sources, such as their agreement and their conduct, although no single factor is determinative. See Stafford, 825 S.W.2d at 656-57; Perry’s Estate, 121 Mont. at 287-88, 192 P.2d 532, 536; Bachand v. Walker (S.D. 1990), 455 N.W.2d 851, 855.
¶82 Here, the District Court relied primarily on the partnership agreement when it concluded that the partners did not intend that the land become partnership property. The agreement stated in relevant part:
[Hal] will contribute said lands for the use of said partnership and that in consideration thereof said partnership will make the annual payments due on a mortgage indebtedness owing against said lands ... and will pay the cost of any necessary repairs or improvements in connection with said lands and all taxes levied against said lands during the term of this agreement.
The agreement also stated that Hal, in whose name title has always been held, reserved “the right to sell any or all of said lands,” as well as the right to live in the home on the ranch.
¶83 The language of the agreement states that Hal contributed the land for use, and not outright as an asset of the partnership, as evidenced further by his reservation of the right to sell the land. His reserved right to live on the land also indicates that the parties had no intention of turning ownership of the land over to the partnership.
¶84 The District Court found that over $700,000 had been paid by the partnership for the use of the land, and it is that payment of funds on which the estate relies for its alleged interest in the land. As suggested above, payment of partnership funds does not by itself cause property to become an asset of the partnership. Nor is use by the partnership sufficient in and of itself to convert a partner’s property into property of the partnership. See Norman, 605 So. 2d at 1213; Gertz v. Fonteechio (Mich. 1951), 49 N.W.2d 121, 124-24; Mischke, 530 N.W.2d at 240. In fact, it is not unusual for property to be used for partnership purposes although it does not belong to the partnership. See Ellis v. Mihelis (Cal. 1963), 384 P.2d 7, 14.
¶85 The estate offers no authority by which we might conclude that payments made by the partnership in consideration for use of land necessarily establish an intent on behalf of the partners that the property become a partnership asset, or that such payments necessarily alter the nature of ownership in the property. We look instead to the partners’ intent, which in this case indicates clearly that Hal would retain ownership of the land.
¶86 Accordingly, we conclude that the District Court did not err when it refused to award the estate a share of the value of the land.
ISSUE 11
¶87 Is Reichman entitled to attorney fees and costs?
¶88 Although fees and costs were claimed by the estate, and objections were filed by the appellants, the District Court had not addressed those claims prior to the filing of appellants’ notice of appeal. Since these issues are best resolved, in the first instance, by the trial court, we remand for resolution of those claims.
¶89 The judgment of the District Court is affirmed in part, reversed in part, and this case is remanded to the District Court for further proceedings consistent with this opinion.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and HUNT concur.
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On March 11,1998, the Defendant was sentenced to ten (10) years to the Montana Women’s Prison. The Defendant was given credit for 156 days already served.
On September 18, 1998, 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 via teleconference and informed of her right to be represented by counsel. 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 to 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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to ten (10) years to the Montana Women’s Prison, with five (5) years suspended, under the same conditions of the original sentence.
The reason for the amendment is that the circumstances of the offense did not require such a lengthy sentence.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Maureen Standing Rock for representing herself in this matter.
|
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] |
On May 6, 1998, the Defendant was sentenced to the Montana Women’s Prison for five (5) years on Count I; five (5) years to the Montana Women’s Prison, with all five years suspended, on Count II; and five (5) years to the Montana Women’s Prison, with all five years suspended, on Count III. The sentence imposed in Count III shall run consecutive to the sentence imposed on Count II. The sentences imposed on Counts II and III shall run consecutive to the sentence imposed on Count I, for a total sentence of fifteen (15) years, with ten (10) years suspended.
On September 18,1998, 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 informed of her right to be represented by counsel. 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 to 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 provides: “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.” (Section 45-18-904(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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Robert Boyd, Alt. Member, Hon. John C. McKeon and Alt. Member, Hon. Robert Holmstrom.
The Sentence Review Board wishes to thank Janice M. Ness for representing herself in this matter.
|
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 Cenex Pipeline LLC filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County for condemnation of a right-of-way over property owned by the defendant, Fly Creek Angus, Inc. Following a nonjury trial, the District Court issued findings of fact, conclusions of law, and an order, in which it allowed condemnation for a permanent pipeline and fiber optic line, as well as a right of access and a temporary construction easement. Fly Creek appeals. We affirm the judgment of the District Court.
¶2 Fly Creek presents six issues on appeal:
¶3 1. Did the District Court err by allowing condemnation without specific identification of the access right-of-way?
¶4 2. Did the District Court err when it allowed condemnation of a 50-foot easement?
¶5 3. Did the District Court err when it allowed condemnation for a fiber optic line?
¶6 4. Did the District Court err when it found that Cenex’s pipeline route was not arbitrary and capricious?
¶7 5. Did the District Court err when it ordered condemnation over the route proposed by Cenex, rather than over the Fisher property?
¶8 6. Did the District Court err when it permitted the complaint, for condemnation to proceed without prior proof of an environmental assessment?
FACTUAL BACKGROUND
¶9 Cenex Pipeline LLC owns an eight-inch pipeline that transports fuel between Laurel and Glendive. The pipeline was built over forty years ago and is currently in need of repair. Cenex wants to replace a 76-mile portion of the pipeline between Billings and Hysham, and in the process, shift the location of the pipeline from its current placement in the Yellowstone River Valley onto drier and less populated land. Pursuant to that goal, the initial conceptual and straight-line route that Cenex proposed for the new pipeline traversed a portion of ranch land owned by Fly Creek Angus, Inc., which is owned and operated by Anita and Rod McCloy.
¶10 When it selected the route, Cenex relied heavily on input from the approximately thirty-five landowners who were affected by the route. In combination with its own survey techniques, Cenex contacted landowners whose land it desired to cross with the pipeline and sought their suggestions about obstacles such as roads, river beds, and topography that might affect the precise location of the pipeline.
¶ 11 Representatives from Cenex first met with McCloys in January 1997, at which point they discussed placement of the pipeline over Fly Creek and the probable need to adjust the straight-line route in a number of places due to rugged terrain and McCloys’ preferences. By that time, Cenex had already met with and begun work in order to gain approval of the project from the State Department of Environmental Quality and other state agencies.
¶12 In April 1997, Cenex representatives accompanied Rod McCloy and drove the proposed route over Fly Creek. Based upon its own observations of the terrain, as well as suggestions and the preferences of Rod, Cenex adjusted the route and eventually staked a new one. A month later, environmental experts joined Rod and the Cenex representative on another reconnaissance of the route, at which point they made further adjustments to accommodate a number of environmental concerns and Rod’s suggestions.
¶13 Cenex had, for many months, been negotiating with other landowners about the final route and regarding the compensation that they would receive for giving Cenex the right-of-way. In fact, by August 1997, Cenex had reached agreement with every landowner except Fly Creek, and acquired rights over almost the entire pipeline route.
¶14 During this same period, an environmental assessment was being performed for the DEQ. The assessment evaluated the environmental impact of the new pipeline, and ultimately formed the basis for the DEQ’s determination of whether a more comprehensive environmental impact statement would be necessary prior to approval of the project. A draft assessment was published and issued to the public on August 1,1997, and shortly thereafter a meeting was held in Hysham to receive public comment on the project; a written comment period was also established.
¶15 OnAugust7,1997, Cenex completed the final survey regarding the Fly Creek route. On August 10, Rod suggested additional changes to the route, which had the effect of involving three new landowners; Cenex was able to reach an agreement with these new landowners. However, Fly Creek still did not accept Cenex’s offer to purchase the right-of-way, even with these additional route changes. In fact, at the public meeting in Hysham on August 21, Rod made the additional suggestion that part of the pipeline be rerouted from the Fly Creek ranch onto property south of Fly Creek owned by Bill Fisher. Although he did not at that time discuss his proposal with Fisher, in September, Rod communicated the proposal directly to the individuals who were still in the process of performing the environmental assessment. Those persons, however, did not conduct an onsite investigation of the route that Rod suggested over Fisher’s property.
¶16 On October 15,1997, Cenex filed a complaint for condemnation against Fly Creek in the District Court for the Thirteenth Judicial District in Yellowstone County. Cenex alleged that pursuant to § 69-13-104, MCA, it had the authority to exercise the power of eminent domain, and that the taking was necessary based upon the public good and Fly Creek’s rejection of its offer to purchase the right-of-way. Cenex sought a permanent easement and 50-foot right-of-way, including the right to construct and operate fiber optic cables, as well as a right of ingress and egress for access to the pipeline and a 25-foot temporary construction easement. The complaint did not refer to Fisher’s property.
¶17 The DEQ published its environmental assessment on December 24,1997. It stated that it “slightly preferred” the route on Fisher’s land to the route proposed by Cenex. The DEQ’s preference was based on the fact that the Fisher route was slightly shorter and better avoided streams and springs than the route proposed by Cenex. A period for public response was established. During that period, Fly Creek and others submitted responses. Neither Cenex nor Fisher were among those who submitted a response. Fisher testified that he did not even learn of Rod’s proposal to reroute part of the pipeline over his property until January 1998, after the public response period had ended, and that had he been aware of it, he would have prepared a response to the DEQ. The record showed that he did not receive a copy of the environmental assessment until after February 10,1998. Fisher further testified that he initially told Cenex in approximately August 1997 that the steep terrain made it infeasible for the pipeline to traverse his property, and that he was not interested in giving Cenex a right-of-way. Testimony from Cenex similarly established that it had not considered the route over Fisher’s property as a serious alternative.
¶ 18 After receiving the responses, the DEQ issued a final determination on February 5,1998. The notice adopted the environmental assessment and found that an environmental impact statement was not necessary. It stated that it had examined three alternative routes, and that all three could receive state permits. The alternatives included: (1) the current right-of-way; (2) a right-of-way adjacent to Interstate Highway 94; and (3) the route proposed by Cenex. The DEQ noted that public comments suggested that the route proposed by Cenex be supplemented by the alternative route over Fisher’s property, and it also stated that the route over Fisher’s property was “slightly preferred to the proposed route.” Cenex then effectively obtained all of the necessary permits to begin construction of the pipeline over its proposed route.
¶ 19 A three-day hearing was held in the District Court from March 30-April 1,1998, during which the parties presented substantial testimony and documentary evidence regarding the pipeline and the development of the route proposed and sought by Cenex. Afterward, the parties submitted proposed findings of fact, conclusions of law, and orders.
¶20 The District Court found that it was in the public’s best interest that the pipeline be moved from its current location. The District Court also found that Cenex had considered the terrain and the alternatives for relocation, and that the route which it developed had minimal impact on landowners and the environment and, therefore, was a reasonable and proper route. In reliance on the expert testimony, Fisher’s own testimony, and a video presentation of the Fisher property, the District Court stated that the alternative route that Rod had suggested over Fisher’s property was “not a practical alternative.” It went on to conclude that Cenex was not arbitrary or capricious in its choice of a route for the pipeline, that the greatest public good requires the relocation of the pipeline, and that the least private injury would occur if the pipeline was placed along the route proposed by Cenex. Accordingly, it ordered the taking of the property and awarded Cenex the 50-foot permanent easement, as well as a temporary 25-foot construction easement and a right of access to the pipeline.
ISSUE 1
¶21 Did the District Court err by allowing condemnation without specific identification of the access right-of-way?
¶22 We review a district court’s findings of fact to determine whether they are clearly erroneous. See Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We review a district court’s conclusions of law to determine whether the interpretation is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶23 Fly Creek contends that Cenex failed in its complaint to identify properly the access right-of-way that Cenex sought by condemnation. On that basis, it contends that the District Court erred when it awarded Cenex the access easement and allowed condemnation of allegedly unidentified property. In addition, it asserts that the District Court’s finding that a right of access was necessary is not supported in the record.
¶24 The description in question states:
Access Roads. The right of ingress to and egress from the permanent easement over and across the real property of [Fly Creek] by means of roads and lanes thereon, if such there be, or otherwise by such practicable route or routes that shall occasion the least damage and inconvenience to the owner of the property.
Cenex contends that the need for access was based on the need to do annual testing of the pipeline and repair. It further contends that the right is phrased as it is in order to minimize the impact of Cenex’s exercise of the right on Fly Creek. For example, Cenex asserts that while it would allegedly have the right to traverse the course of the easement in order to reach a specific testing or repair point on the pipeline, to actually execute its right in such a manner would be unnecessarily intrusive and destructive to that portion of Fly Creek’s reclaimed land which would otherwise be left untouched if Cenex instead is allowed to use “roads and lanes thereon, if such there be, or otherwise by such practicable route or routes that shall occasion the least damage and inconvenience to [Fly Creek].”
¶25 Section 70-30-203(5), MCA, requires a complaint for condemnation to show “the location, general route, and termini and must be accompanied with a map” of the desired right-of-way. Section 70-30-203(6), MCA, requires that the complaint also state that the interest sought is the minimum necessary interest. Cenex included a map of the pipeline route and a description of the primary easement which Fly Creek, despite its other allegations of error regarding the condemnation process, apparently concedes meets the requirements of the statute. Moreover, there was testimony that Cenex would re quire for its own needs and the public safety access to the pipeline in order to maintain and repair it over time. Therefore, we reject Fly Creek’s contention that the District Court’s finding that a right of access was necessary was clearly erroneous.
¶26 Fly Creek is correct in its assertion that the description does not set forth a fixed way of access. However, we conclude from the nature of the access right and other considerations inherent to condemnation that Cenex’s description of the right was as specific as it could or needed to be.
¶27 Cenex’s point of access cannot be more accurately or specifically identified before the need for access arises. Because Cenex is only entitled to the “minimum necessary interest,” the description of the secondary right of access merely complies with the statute through its incorporation of that requirement, albeit on a case-by-case basis. Accordingly, we conclude that the District Court did not err when it allowed condemnation of the access right-of-way.
ISSUE 2
¶28 Did the District Court err when it allowed condemnation of a 50-foot easement?
¶29 As previously discussed, § 70-30-203(6), MCA, provides that a complaint for condemnation must include “a statement that the interest sought is the minimum necessary interest.” We have also held that condemnation requires the plaintiff to prove, among other things, that the taking is necessary and that it is compatible with the greatest public good and the least private injury. See Montana Power Co. v. Bokma (1969), 153 Mont. 390, 457 P.2d 769. Fly Creek contends here that Cenex failed to show that a 50-foot right-of-way represented the minimum necessary interest, and asserts that in fact the width of the easement awarded by the District Court is “clearly excessive compared to what is actually needed by [Cenex].”
¶30 “The question of necessity is one of fact to be determined as other questions of fact in the light of all the evidence.” Bokma, 153 Mont. at 397-98, 457 P.2d at 774. Fly Creek offers no support from the record for its assertion that the 50-foot easement is excessive. On the other hand, there is clear evidence that a 50-foot wide easement is the minimum necessary interest and, according to some testimony, 50-feet is not wide enough. Fly Creek contends that because Cenex contracted with some landowners for less than a 50-foot easement in places, 50 feet is not necessary. The record also reflects, however, that in those agreements, provisions were added to allow Cenex at least 50-feet of access when necessary.
¶31 It is not this Court’s role to substitute its judgment for that of the district court in the determination of issues of fact. See DeSaye, 250 Mont. at 324, 820 P.2d at 1287-88. Accordingly, we conclude that there was substantial credible evidence to support the District Court’s finding and award of a 50-foot easement.
ISSUE 3
¶32 Did the District Court err when it allowed condemnation for a fiber optic fine?
¶33 Fly Creek suggests that the District Court erred when, in spite of allegedly insufficient evidence, it found that a fiber optic fine was necessary and awarded Cenex a fiber optic cable easement in “exactly the words sought by [Cenex].”
¶34 Section 69-13-103, MCA, states that a common carrier pipeline, as Cenex is in this case, has “[t]he right to lay, maintain, and operate pipelines, together with telegraph and telephone lines incidental to and designed for use only in connection with the operation of such lines.” We conclude that the statute confers on Cenex the right to install a fiber optic fine along with the pipeline, and that the record supports the District Court’s finding that the fiber optic fine is necessary.
¶35 The engineer manager from Cenex testified that “[fliber optics is necessary — one of the necessary means for telecommunication along the pipeline system in order that we may remotely control the entire pipeline from a single location.” Fly Creek relies on a narrow statement in August 1997 from the same Cenex official that Cenex did not have plans to install fiber optic cable. First, we note that the full context, from which the statement on which Fly Creek relies was taken, suggests that the possibility of installing fiber optic cable “may be considered [by Cenex] prior to actual construction.” Second, and more importantly, our role on review is to determine whether the District Court’s finding is supported by substantial evidence, and not to review whether evidence was presented that might have supported a contrary finding. See Wareing v. Schreckendgust (1996), 280 Mont. 196, 210, 930 P.2d 37, 46. Accordingly, the evidence here is sufficient to support the District Court’s finding, and we will not substitute our judgment for the District Court’s.
¶36 Finally, it is not per se error for the District Court to have adopted in its findings and order the exact language used by Cenex. See In re Marriage of Stufft (1996), 276 Mont. 454, 457, 916 P.2d 767, 769. Especially in a case such as this, where the desired land rights are for very specific and limited purposes, it is not necessarily error for a district court to rely on and adopt the prevailing party’s description of those rights. See, e.g., Rathbun v. Robson (1983), 203 Mont. 319, 324-25, 661 P.2d 850, 853. If the findings are supported by substantial credible evidence, as they are here, we will affirm the district court’s finding.
ISSUE 4
¶37 Did the District Court err when it found that Cenex’s pipeline route was not arbitrary and capricious?
¶38 Fly Creek contends that Cenex was arbitrary and capricious in the manner that it selected the pipeline route and, to the extent that the District Court’s findings and conclusions suggest that it was not, Fly Creek contends that they are not supported by the record. Our review of the record leads us to conclude that Fly Creek’s assertion is without merit.
¶39 There was substantial testimony in the record that Cenex worked at length with the landowners along its proposed route, including McCloys, to identify the best route for the pipeline. That process involved consideration of environmental factors, the landowners’ preferences, topographical concerns, construction feasibility, and economic interests. The burden was on Fly Creek to present clear and convincing proof that Cenex’s choice of the pipeline route was arbitrary and capricious. See Schara v. Anaconda Co. (1980), 187 Mont. 377, 386, 610 P.2d 132, 137; Bokma, 153 Mont. at 399, 457 P.2d at 775. We conclude that it failed to do so.
ISSUE 5
¶40 Did the District Court err when it ordered condemnation over the route proposed by Cenex, rather than over the Fisher property?
¶41 Fly Creek contends that because the DEQ’s environmental assessment “slightly preferred” the proposed route on Fisher’s property, Cenex, and consequently the District Court, were bound by that preference.
¶42 Fly Creek provides no legal authority for its position. Furthermore, the DEQ expressly stated that all of the routes that it considered qualified for permits and, in response to a letter from Cenex, the DEQ stated that it did “not believe that there is substantive authority under any of the applicable laws to mandate construction of one route over another.” Accordingly, we conclude that the District Court did not err when it ordered condemnation over the route proposed by Cenex.
ISSUE 6
¶43 Did the District Court err when it permitted the complaint for condemnation to proceed without prior proof of an environmental assessment?
¶44 Fly Creek contends that Cenex initiated the condemnation proceedings in the District Court in October 1997, prior to the DEQ’s completion of its final environmental assessment, and that the complaint should have been dismissed by the District Court because at the time that it filed the complaint, Cenex could not have begun construction of the pipeline, much less proven the necessary elements of condemnation. Cenex asserts that this Court has already decided precisely this question in Schara, 187 Mont. 377, 610 P.2d 132, pursuant to which Cenex contends that an environmental assessment need not be completed in order to seek condemnation.
¶45 We held in Schara that nothing in either the environmental or eminent domain statutes requires an authorized party to “obtain a valid [pipeline] permit prior to condemnation,” and that to do so “would be inconsistent with Montana statutory authority and... contrary to the public policy of providing expediency in eminent domain proceedings.” Schara, 187 Mont. at 388-89, 610 P.2d at 138. Fly Creek contends that this portion of Schara has been “impliedly reversed” by Madison County v. Elford (1983), 203 Mont. 293, 661 P.2d 1266. However, we disagree. Accordingly, we reject Fly Creek’s suggestion that Schara does not apply, and hold that pursuant to Schara, Cenex was entitled to seek condemnation prior to completion of the final environmental assessment.
¶46 For the above reasons, we affirm the District Court’s findings of fact, conclusions of law, and order.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT, GRAY and LEAPHART concur.
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] |
JUSTICE REGNIER
delivered the opinion of the Court.
¶1 On January 5,1996, Christell Benson brought this case in the District Court of the Eighth Judicial District, Cascade County, for injuries she sustained from a slip and fall accident on the sidewalk ramp of the Heritage Inn Motel in Great Falls. On October 16,1996, Heritage Inn filed a third-party claim against Talcott Construction, Inc., the Heritage Inn building contractor, for indemnification. On December 12, 1997, a jury found that neither the building code violations nor improper maintenance of the sidewalk ramp were the cause of Benson’s injury. On December 31, 1997, Benson moved for a new trial, which the District Court granted. Heritage Inn appeals from that order. We affirm the judgment of the District Court.
¶2 The issue raised on appeal is whether the District Court erred when it granted Benson a new trial.
FACTUAL BACKGROUND
¶3 The Heritage Inn Motel in Great Falls is surrounded by a parking lot. During a remodeling project, Talcott Construction, Inc. constructed a sidewalk ramp to provide handicap and general access to the Heritage Inn casino, restaurant, and the main lobby entrance. The sidewalk ramp abuts the parking lot.
¶4 On January 19,1993, Christell Benson parked her car in the Heritage Inn parking lot and walked across the parking lot and over to the sidewalk ramp in order to attend a meeting inside the Heritage Inn. While either on the sidewalk ramp, or on the parking lot pavement which abuts the sidewalk ramp, Benson slipped, fell, and sustained injuries.
¶5 At trial, Benson offered expert testimony that her fall could have been caused by snow, ice, or moisture on the sidewalk ramp which caused her to slip, or design defects in the ramp itself. Photographs taken after the accident showed blood drops near the end of the ramp closest to the parking lot. Based upon the location of the blood drops, Heritage Inn maintained that the fall could have occurred in a manner other than that described by Benson’s experts. Specifically, Heritage Inn maintained that Benson could have slipped or tripped in the parking lot and fallen and hit her head on the end of the ramp where the blood drops were located.
¶6 Benson retained two engineering firms to determine whether defects in the design and construction of the sidewalk ramp caused or contributed to her fall. One engineering report stated that the ramp’s flared side slopes were built too steeply to comply with the Uniform Building Code, and should therefore have had a handrail. The second engineering report concurred with the first, and further concluded that the ramp violated other Uniform Building Code, American National Standards Institute, and Americans With Disabilities Act standards. Following discovery, the District Court granted summary judgment to Benson and against Heritage Inn and found that the ramp was defective due to numerous Uniform Building Code violations, and that Heritage Inn was negligent as a matter of law. The issues of negligent maintenance and causation of injuries were left for trial.
¶7 In a pretrial order, the parties expressly agreed to certain facts, one of which was that “[o]n January 19,1993 at approximately 1:00 p.m., Plaintiff Christell Benson fell on the sidewalk on the north side of the Heritage Inn,” and that the Uniform Building Code “applies to the sidewalk on which Christell Benson fell.” (Emphasis added.) Just prior to closing argument, Benson filed a written motion in limine to prevent Heritage Inn from arguing contrary to these agreed facts in its closing remarks. The District Court granted that motion but allowed Heritage Inn to argue that Benson slipped elsewhere.
¶8 Despite the District Court’s order, Heritage Inn repeatedly asserted in its closing remarks that Benson’s fall occurred in the parking lot, not on the sidewalk ramp, and that the location of the fall essentially mandated a defense verdict according to Heritage Inn’s jury instruction regarding a land owner’s duty regarding the natural accumulation of snow and ice. That instruction reads:
A premises owner cannot be charged with negligence by reason of a purely natural accumulation of ice and snow where the condition is as well known to the plaintiff as to the defendant.
Purely natural conditions, such as obvious snow and ice do not create such an unreasonable dangerous condition as to require the landowner to take certain precautions.
However, a property owner may be liable for falls on accumulations of ice and snow where the hazard created by the natural accumulation is increased or a new hazard is created by an affirmative act of the property owner or its agents. Even where the condition is actually known or obvious, a property owner may be hable if it should have anticipated that injuries would result from the dangerous condition.
¶9 Heritage Inn characterized this instruction as “the most important instruction in this case” and then suggested that because the fall occurred in the parking lot, Heritage Inn could not be held liable pursuant to the “natural accumulation of snow and ice” doctrine in Montana law. Specifically, Heritage Inn argued that:
“[T]here’s evidence, pretty strong evidence, that she fell in the parking lot.”
“I can argue to you that there’s evidence that looks like she fell in the parking lot.”
“She clearly could have fallen in the parking lot....”
“If she didn’t fall in the parking lot, then we have to decide, well, sure she didn’t fall in the parking lot then she slipped or tripped on the ramp.”
“You think she fell in the parking lot, you might have to say, oh, oh, no liability here, that’s natural accumulation.”
“If you think she fell on the sidewalk....”
“There’s some question about where Mrs. Benson fell, serious question.”
“The horse that pulls the cart in the lawsuit is liable whether the people that got sued are responsible, just like if you think that the fall occurred in the parking lot, there’s no responsibility here because that’s Montana law.”
“Also there’s the horse pulling it and there are problems with liability for the plaintiffs in this case and we just talked about them. Parking lot, blood drops all those kinds of things.”
“If you think that the fall occurred in the parking lot, no matter how sympathetic you are, you have to let it go.”
¶10 All but one of these remarks were made after the District Court sustained Benson’s objection that such remarks were contrary to the agreed facts in the pretrial order. At the conclusion of the trial, the jury returned a verdict for Heritage Inn.
¶11 Less than two weeks later, this Court issued our decision in Richardson v. Corvallis Public School District No.l (1997), 286 Mont. 309, 950 P.2d 748, in which we rejected the line of authority upon which Heritage Inn’s instruction regarding landowner liability for natural accumulation of snow and ice was based, and made clear that to give such an instruction on the law would be reversible error. The District Court thereafter determined that a new trial was necessary to correct the error of giving that instruction, and because it concluded that Heritage Inn’s argument that Benson’s slip and fall occurred in the parking lot was in violation of the pretrial order, the order in limine, and a binding judicial admission as to the location of the fall. In response to Heritage Inn’s appeal of the District Court’s grant of a new trial, Benson has moved for costs and sanctions to be imposed against Heritage Inn.
DISCUSSION
¶12 The issue raised by Heritage Inn on appeal is whether the District Court erred when it granted Benson a new trial.
¶13 The standard of review of a district court order granting a new trial pursuant to § 25-11-102(1) and (7), MCA, is manifest abuse of discretion. See Baxter v. Archie Cochrane Motors, Inc. (1995), 271 Mont. 286, 287-88, 895 P.2d 631, 632 (holding that “[t]he decision to grant or deny a new trial is within the sound discretion of the trial judge and will not be disturbed absent a showing of manifest abuse of that discretion.”). See also Rasmussen v. State Comp. Mut. Ins. Fund (1995), 270 Mont. 492, 496, 893 P.2d 337, 339; Jim's Excavating Serv., Inc. v. HEM Assoc. (1994), 265 Mont. 494, 512, 878 P.2d 248, 259.
¶14 Heritage Inn and Talcott Construction claim that Benson was not prejudiced by Heritage Inn’s closing argument about the location of Benson’s slip and fall because the jury already understood that, due to the location of the blood drops on the ramp, there was a question about how and where Benson fell. With regard to the Richardson decision, Heritage Inn and Talcott Construction claim that it has no application to this case because it was decided after the trial and because Benson suffered no prejudice from its nonapplication.
Heritage Inn’s closing remarks about the location of Benson’s fall
¶15 With regard to assertions such as that made by Heritage Inn and Talcott Construction about the understanding of the jury, we have stated that “[a]ny allegations regarding the inner workings of the jury deliberations are inadmissible. We will not approve future attempts to combine allegations of fact with allegations of juror thought processes.” Ahmann v. American Federal Saving and Loan Ass’n (1988), 235 Mont. 184, 190, 766 P.2d 853, 857, overruled on other grounds by Alters v. Riley (1995), 273 Mont. 1, 3, 901 P.2d 600, 602.
¶16 More importantly, however, is a determination of whether Benson was in fact prejudiced by Heritage Inn’s remarks in its closing argument to such an extent that she was denied a fair trial pursuant to § 25-11-102(1), MCA. The District Court concluded that the remarks were prejudicial. In Kuhnke v. Fisher (1984), 210 Mont. 114, 683 P.2d 916, we explained that where it appears that one of the parties was prevented from receiving a fair trial by improper argument in summation, the question of whether substantial evidence supports the verdict in spite of the oral argument does not arise because:
The acid of the improper argument may have eaten away the substantial evidence presented by the plaintiff and left only prejudice against him. When a party’s right to a fair trial has been materially impaired by improper jury argument, the fact of the imperfect trial transcends the substantial but conflicting evidence that supports the jury verdict.
Kuhnke, 210 Mont. at 125, 683 P.2d at 922.
¶17 The remarks made by Heritage Inn were contrary to the agreed facts in the pretrial order. We have repeatedly upheld the binding effect pretrial orders have on future case proceedings. See Swenson v. Buffalo Bldg. Co. (1981), 194 Mont. 141, 635 P.2d 978; Workman v. McIntyre Const. Co. (1980), 190 Mont. 5, 617 P.2d 1281; Strong v. State (1979), 183 Mont. 410, 600 P.2d 191. Further, we have held that “an express waiver made in court by a party or his attorney conceding the truth of an alleged fact” is a judicial admission. DeMars v. Carlstrom (1997), 285 Mont. 334, 337, 948 P.2d 246, 248. Therefore, having agreed to the fact that Benson “fell on the sidewalk,” Heritage Inn could not seek to challenge that fact at trial.
¶18 In this case, there was more than ample basis for the District Court to conclude that Heritage Inn’s improper remarks gave the jury a simple factual basis for ruling against Benson on her negligent de sign and construction claims. If Benson’s fall occurred in the parking lot, the negligent design and construction of the sidewalk could not have caused her injuries.
¶19 Moreover, by arguing that Benson’s fall occurred in the parking lot, rather than on the sidewalk ramp, Heritage Inn was able to change the applicable standard of care according to its “natural accumulation of snow and ice”jury instruction. Thus, counsel for Heritage Inn told the jury: “[i]f you think that the fall occurred in the parking lot, there’s no responsibility here because that’s Montana law,” and “[i]f you think that the fall occurred in the parking lot, no matter how sympathetic you are, you have to let it go.”
¶20 Finally, by making these remarks at the close of trial after the parties had all agreed that the location of the fall was on the sidewalk ramp, Heritage Inn was able to effectively midermine Benson’s ability to anticipate that argument and prepare her case accordingly. This kind of unfair surprise is precisely the type of prejudice that justifies a new trial. The confusion about the status of this agreed fact likely occurred after the District Court, without making careful distinction, allowed Heritage Inn to argue that Benson slipped elsewhere but not that she fell elsewhere.
¶21 Because of these circumstances, the District Court’s determination that the remarks in question were unfairly prejudicial to Benson is correct.
Application and effect of Richardson v. Corvallis Public School District No. 1
¶22 Contrary to Heritage Inn’s jury instruction regarding landowner liability for natural accumulation of snow and ice, in Richardson we adopted the following standard of care:
The possessor of the premises has a duty to use ordinary care in maintaining the premises in a reasonably safe condition and to warn of any hidden or lurking dangers. What constitutes a reasonably safe premises is generally considered to be a question of fact. Whether a premises is reasonably safe depends to a large extent on what use the property is put to, its setting, location and other physical characteristics; the type of person who would foreseeably visit, use or occupy the premises; and the specific type of hazard or unsafe condition alleged. The possessor of the premises is not liable to persons foreseeably upon the premises for physical harm caused to them by any activity or condition on the premises whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
In other words, the possessor of the premises may no longer avoid liability simply because a dangerous activity or condition on the land is open and obvious; this includes avoiding liability for open and obvious natural accumulations of ice and snow. Rather, the possessor of the premises may only be absolved from liability for injuries resulting from open and obvious dangers if he should not have anticipated harm to occur. This does not mean that the possessor of the premises is an absolute insurer of the safety of the premises. See Limberhand [v. Big Ditch Co. (1985), 218 Mont. 132], 706 P.2d at 499. Instead, whether the possessor of the premises should have anticipated harm depends on “the degree of ordinary care which reasonable persons would use under the same or similar circumstances.” See Limberhand, 706 P.2d at 499.
Richardson, 286 Mont. at 321, 950 P.2d at 755-56.
¶23 In their opposition to a new trial based upon § 25-11-102(7), MCA, because of an “error in law occurring at the trial and excepted to by the party making the application,” Heritage Inn and Talcott Construction contend that Richardson should only be applied prospectively to causes of action arising after that case was decided. There is nothing in Richardson, however, to suggest that such a restrictive application is appropriate. Specifically, Richardson applies because it lacks all three of the established factors for nonretroactive application of a court decision.
¶24 In Riley v. Warm Springs State Hospital (1987), 229 Mont. 518, 748 P.2d 455, we stated the three factors which must be considered before adopting a rule of nonretroactive application of a judicial decision:
First, the ruling to be applied nonretroactively must establish a new principle of law either by overruling precedent or by deciding an issue of first impression whose result was not clearly foreshadowed. Next, the new rule must be examined to determine whether retroactive application will further or retard its operation. Third, the equity of retroactive application must be considered.
Riley, 229 Mont. at 521, 748 P.2d at 457.
¶25 In this case, none of the foregoing factors is satisfied. Richardson does not establish a new principle of law, but represents a clarification of the law whose result was foreshadowed by recent decisions that discuss premises liability. Indeed, in Richardson we pointed out that the standard of care adopted therein was “consistent with the body and trend of Montana’s premises liability law as that has developed over the years” and “compatible with the general statutory standards of care articulated by the legislature.” Richardson, 286 Mont. at 321, 950 P.2d at 756. Additionally, as the District Court indicated, the rule of law and principles of equity discussed in Richardson would not be furthered by prospective application of that case only. As we noted in Richardson, “the interests of both the possessors of premises and those persons foreseeably on the premises are better served by our adoption of’ the standard of care we set out in that case. Richardson, 286 Mont. at 320, 950 P.2d at 755. Therefore, all three ofthe Riley factors for nonretroactive application of Richardson are lacking.
¶26 Because Heritage Inn told the jury that the jury instruction regarding natural accumulation of snow and ice was “the most important instruction in this case,” and relied extensively on it in summation as the legal basis for avoiding liability, the prejudicial effect of the instruction is obvious. It cannot be reasonably said that the jury would have reached the same result had the erroneous instruction not been given.
¶27 For these reasons we conclude that the District Court did not manifestly abuse its discretion when it granted a new trial. We further conclude that the jury should be instructed in accordance with the standards set forth in Richardson.
¶28 With regard to the issue raised by Benson regarding the award of sanctions against Heritage Inn for appealing without “substantial or reasonable grounds,” we conclude that because much of the confusion in this case was caused by the District Court’s rulings on the motion in limine, jury instructions, and Benson’s objection, sanctions are not appropriate.
¶29 The judgment of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and TRIEWEILER concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶ 1 The plaintiffs, Andrew Hoyem and Anna Fitzgerald, filed suit on behalf of the Albert G. Hoyem Trust in the District Court for the Fourteenth Judicial District in Meagher County against Errol T. Galt and Sharrie Galt to judicially establish in Hoyem Trust’s favor an unrestricted easement or way of necessity over and across certain real property owned by Gaits. Both parties filed motions for summary judgment. The District Court denied Hoyem Trust’s motion and granted Gaits’ motion. Hoyem Trust appeals the District Court’s order and judgment. We affirm the judgment of the District Court.
¶2 The issues on appeal are as follows:
¶3 1. Did the District Court err when it concluded that Hoyem Trust has an implied easement from existing use, rather than an implied easement by necessity?
¶4 2. What is the extent or scope of an easement by necessity?
¶5 3. Does the doctrine of laches apply to claims for an easement by necessity?
¶6 Because our resolution of Issue 1 is dispositive, we decline to address Issues 2 or 3.
FACTUAL BACKGROUND
¶7 Andrew Hoyem, John Hoyem, and Anna Fitzgerald are co-trustees of the Albert G. Hoyem Trust and the heirs and successors of Albert G. Hoyem. The trust is the owner of real property located in Meagher County, Montana.
¶8 Errol T. Galt and Sharrie Galt are the owners of real property adjacent to the northern boundary of the Hoyem Trust property.
¶9 On July 8,1938, Andrew Hoyem transferred the entire property at issue in this action, which includes both Gaits’ and Hoyem Trust’s parcels, to Hoyem Ranch Company. The Hoyem Ranch Company was eventually dissolved and, on July 1,1944, the real property owned by the ranch was simultaneously conveyed, roughly in thirds, to Andrew Hoyem’s sons; Albert Hoyem, Morris Hoyem, and George Hoyem. Albert Hoyem received the real property now owned by the Hoyem Trust. Morris Hoyem received the real property now owned by the Gaits.
¶ 10 In 1949, Albert and Morris paid for and erected a fence that separates the two tracts at issue. According to the trustees of the Hoyem Trust, the two brothers also erected a gate in the fence where the fence intersected the road historically used to access Albert’s property. Morris subsequently sold his property to the Gaits’ predecessors in interest, while Albert retained ownership of his property and leased it to neighbors. Finally, in a grant deed dated October 7,1977, Albert transferred his interest in the real property to the Albert G. Hoyem Trust.
¶11 When the Hoyem Ranch Company owned the entire tract of land, the road in question was in existence and serviced the areas of the tract now owned by the Gaits and Hoyem Trust. According to Hoyem Trust, it was clear to both Morris and Albert that an easement existed for Albert’s property prior to Hoyem Ranch Company’s conveyance of the tracts and conveyance to the brothers “because there was no other access but the one their father [Andrew Hoyem] had used.” Hoyem Trust further admits that “the brothers then memorialized the easement by placing a gate in the fence between their property exactly where the road used to access Albert’s property ran.”
¶ 12 Hoyem Trust maintains that the Hoyem family has since used the road which runs from its junction with a state secondary highway (294) through the Gaits’ property for access to the Hoyem Trust prop erty. Hoyem Trust further asserts that the Hoyems have an unrestricted easement by necessity over the Gaits’ property, the scope of which, Hoyem Trust contends, should be completely unrestricted.
¶ 13 Gaits contend that Hoyem Trust does not have an easement by necessity because it cannot show the requisite strict necessity for that type of easement.
¶14 Following cross-motions for summary judgment, oral argument, and a review of the parties’ briefs, pleadings, and discovery documents, the District Court denied Hoyem Trust’s motion for partial summary judgment and concluded that Hoyem Trust possesses an implied easement from existing use over Gaits’ property and is entitled to summary judgment on that issue. The District Court further concluded that the easement by implication over Gaits’ land must be restricted to its historical use and the nature of the enjoyment by which it was acquired.
STANDARD OF REVIEW
¶15 We review a district court’s order granting summary judgment de novo. See Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same criteria considered by the district court. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.
DISCUSSION
¶16 Did the District Court err when it concluded that Hoyem Trust has an implied easement from existing use, rather than an implied easement by necessity?
¶17 An easement by implication is created by operation of law at the time of severance, rather than by written instrument. See Big Sky Hidden Village Owners Ass’n v. Hidden Village, Inc. (1996), 276 Mont. 268, 277, 915 P.2d 845, 850. There are only two types of implied easements: (1) an intended easement based on a use that existed when the dominant and servient estates were severed, and (2) an easement by necessity.
Implied Easement by Necessity
¶18 We have defined an easement by necessity as follows:
[w]here an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way of necessity exists over the re maining lands of the grantor. Similarly, a way of necessity is found when the owner of lands retains the inner portion conveying to another the balance, across which he must go for exit and access.
Big Sky Hidden Village Owners Ass’n, 276 Mont. at 277, 915 P.2d at 850 (quoting Schmid v. McDowell (1982), 199 Mont. 233, 237, 649 P.2d 431, 433). We have set forth two basic elements of an easement by necessity: (1) unity of ownership, and (2) strict necessity at the time the unified tracts are separated. See Graham v. Mack (1984), 216 Mont. 165, 175, 699 P.2d 590, 596. A right-of-way by absolute necessity is created by implied grant over the remaining lands of the seller when the owner of a tract of land sells a part of the tract that has no outlet to a public road except over the other lands of the seller. See generally Graham, 216 Mont. 165, 699 P.2d 590.
¶ 19 In Graham, we explained the relationship of an easement by necessity to easements by implication. We held that:
An easement by necessity is a sub-species of implied easements. They are distinguished in the sense that implied easements are based upon a contract that is “open and visible at the time of conveyance,” Godfrey v. Pilon (1974), 165 Mont. 439, 446, 529 P.2d 1372, 1376. A way of necessity depends solely upon “strict necessity” at the time of conveyance and is, in that sense, more truly an implied use. State v. Cronin, 179 Mont. at 488, 587 P.2d at 399-400. The way of necessity arises when the strong public policy “against shutting off a tract of land and thus rendering it unusable” gives rise to a fictional intent defeating any such restraint, 2 Thompson on Real Property (1980 ed.) Sec. 351.
Graham, 216 Mont. at 175, 699 P.2d at 596.
¶20 Hoyem Trust contends that because both required elements were established by the undisputed facts in this case the District Court erred when it concluded that Hoyem Trust does not have an implied easement by necessity.
¶21 The first element, common ownership, Hoyem Trust contends, is conclusively established by the affidavit testimony of abstractor, James M. Johnson, premised upon his examination of the records of Meagher County, in which he concludes that, prior to severance in July 1944, the property of Hoyem Trust and the property of Galt were both held in common ownership by Hoyem Ranch Company. Hoyem Trust contends that the second element, strict necessity, is established by the public record which clearly indicates that, at the time of severance of the Hoyem Ranch Company properties, all property ad jacent thereto was held or owned by third parties who were strangers in title to the common owner, Hoyem Ranch Company. Hoyem Trust maintains that pursuant to our decision in Graham, wherein we held that a “way [of necessity] granted must be over the grantor’s land, and never over the land of a third party or stranger to the title,” Graham, 216 Mont. at 175, 699 P.2d at 596-97, the only access to the public road from the property conveyed to Albert Hoyem, Hoyem’s predecessor-in-interest, was across property conveyed to Morris Hoyem, Gaits’ predecessor-in-interest.
Implied Easement from Existing Use
¶22 The second type of implied easement, an easement implied from existing use, arises only if, prior to the time the title or tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and a court determines that the parties intended the use to continue after division of the property. See Graham, 216 Mont. at 174, 699 P.2d at 596; see also Woods v. Houle (1988), 235 Mont. 158, 162, 766 P.2d 250, 253. This type of easement is sometimes called a “quasi-easement” before the tract is divided because an owner cannot hold an easement on his own land. See Pioneer Mining Co. v. Bannack Gold Mining Co. (1921), 60 Mont. 254, 263, 198 P. 748, 751.
¶23 For a use to give rise to an implied easement from existing use, it must be apparent and continuous at the time the tract is divided. See Graham, 216 Mont. at 174, 699 P.2d at 596. We have applied different standards to determine what is considered an “apparent and continuous use.” In Ruana v. Grigonis (1996), 275 Mont. 441, 453, 913 P.2d 1247, 1255, we agreed with the appellant’s argument that the respondents were required to produce evidence that showed “manifest, obvious, or permanent use” of the purported easement. In Godfrey v. Pilon (1974), 165 Mont. 439, 446, 529 P.2d 1372, 1375, however, we held that an easement is “apparent” when an “easement, path, ‘roadway of sorts,’ trail or ‘primitive road’ over the land” may be discovered upon reasonable inspection. While both definitions are accurate, we conclude that the requirement set forth in Godfrey that “an easement is apparent when it may be discovered upon reasonable inspection” is the minimum standard that must be met. Godfrey, 165 Mont. at 446, 529 P.2d at 1375.
¶24 Following our reasoning in Godfrey, an apparent easement need not be so formal as to be an improved, paved, or even graveled two-way road. As we stated in Godfrey, an apparent and continuous easement may be as simple as a path, “roadway of sorts,” trail, or “primitive road.” It is evident from Hoyem Trust’s own description that prior to the severance and simultaneous conveyance of the parcels of land to the three brothers, a quasi-easement across Morris’s parcel existed for Albert’s parcel. According to Hoyem Trust, Morris and Albert’s father, Andrew Hoyem, the owner of the Hoyem Ranch Company, used this road as the only access to his land. Once the property was severed and conveyed to Morris and Albert, the brothers memorialized the easement by placing a gate in the fence between their property exactly where the road used to access Albert’s property ran. In Godfrey, we held that “[t]he parties are presumed to contract with reference to the condition of the property at the time of the sale, provided the marks are open and visible.” Godfrey, 165 Mont. at 445, 529 P.2d at 1375. The fact that Morris and Albert placed a gate across the easement indicates that they were aware of the existence of the easement and contracted with reference to the condition of the property at the time of the conveyance. This apparent and continuous use at the time the tract was divided distinguishes this case from our decision in Kelly v. Burlington Northern Railroad Co. (1996), 279 Mont. 238, 927 P.2d 4. Since the time of that conveyance, the easement has been regularly used by the Hoyem family.
¶25 In addition to the requirement that the use be apparent and continuous at the time the tract is divided, an implied easement from existing use must also have a use that is reasonably necessary for the enjoyment of the dominant parcel. See Graham, 216 Mont. at 174, 699 P.2d at 596. Reasonable necessity, in this case, is established by the affidavit testimony of abstractor, James M. Johnson, premised upon his examination of the records of Meagher County, that the public record indicates that at the time of severance of the Hoyem Ranch Company properties, all property adjacent thereto was held or owned by third parties who were strangers in title to the common owner, Hoyem Ranch Company. Therefore, the only access to the public road from the property conveyed to Albert Hoyem, Hoyem Trust’s predecessor-in-interest, was by way of the easement across the property conveyed to Morris Hoyem, Gaits’ predecessor-in-interest. Section 1-3-213, MCA, requires that “[o]ne who grants a thing is presumed to grant also whatever is essential to its use.”
¶26 An easement implied from existing use passes to all future owners of the property pursuant to the requirement in § 70-20-308, MCA, that a “transfer of real property passes all easements attached thereto and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used.”
¶27 In Michaelson v. Wardell (1980), 186 Mont. 278, 607 P.2d 100, we upheld an implied easement from existing use pursuant to § 70-20-308, MCA, based on facts similar to those presented here. In that case we held:
The facts in this case, as found by the District Court, reveal such an implied grant of easement. Appellant was the owner in common of his present property and respondents’ present property. Before selling any of his property, appellant built the access road to serve the residence now owned by respondents. That road was continuously used by respondents and their predecessors to serve the residence. The road was and still is the only means of access used by respondents and their predecessors. When appellant conveyed the property to the first grantees, the Fourniers, he created under the above statute a permanent easement for use of the roadway as an access to respondents’ residence. The roadway is being used for the same benefit to respondents as it was to the original owner.
Michaelson, 186 Mont. at 281, 607 P.2d at 101.
¶28 Based on the foregoing facts supported by the public record and the admissions of the parties, Montana law regarding implied easements establishes conclusively that an easement implied from existing use, not an implied easement by necessity, exists in favor of Hoyem Trust over and across Gaits’ property. We agree with Gaits that the easement by necessity requirement of “strict necessity” did not exist at the time the property was severed in 1944 because a road existed which provided practical access to a public road for ingress and egress.
¶29 The presence of an implied easement from existing use necessarily defeats the strict necessity requirement of an easement by necessity. The critical distinction between the two types of implied easements, the existence of an apparent and continuous use of an easement which allows for ingress and egress at the time the tract is divided, is present in this case. Therefore, we conclude that the District Court did not err when it determined that Hoyem Trust holds an implied easement from existing use, rather than an implied easement by necessity.
Scope of Implied Easements
¶30 The extent and scope of an implied easement from existing use is determined by § 70-17-106, MCA, and § 70-20-308, MCA. Section 70-17-106, MCA, applies to implied grants of easements and provides that “[t]he extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.” Section 70-20-308, MCA, applies to implied reservations of easements and provides:
A transfer of real property passes all easements attached thereto and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred for the benefit thereof at the time when the transfer was agreed upon or completed.
Pursuant to these statutes, the extent and scope of the easement over Gaits’ property is limited to its historical use at the time the easement was created.
¶31 The scope of the easement is, therefore, limited to the uses the parties might reasonably have expected or anticipated. In this case, prior to severance and for over fifty years since, use of the easement has been limited to primarily agricultural and recreational purposes, and there is no evidence that the parties ever considered the easement to be unlimited in scope.
¶32 Accordingly, we conclude that the District Court did not err when it denied Hoyem Trust’s motion for partial summary judgment and granted summary judgment pursuant to Rule 56, M.R.Civ.P., in favor of Gaits. The District Court did not err when it found that Hoyem Trust has an implied easement from existing use, rather than an implied easement by necessity, and that the scope and extent of the easement is limited to agricultural and recreational purposes based on the historic use of the easement at the time of its creation.
¶33 The judgment of the District Court is affirmed.
JUSTICES GRAY, NELSON, HUNT and REGNIER concur.
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JUSTICE REGNIER
delivered the opinion of the Court.
¶1 On June 28,1996, Juan Jose Flores was charged by information in the Twenty-First Judicial District Court in Ravalli County with aggravated assault in violation of § 45-5-202(1), MCA. On December 18, 1996, a jury found Flores guilty of aggravated assault. On April 11, 1997, Flores filed a notice of appeal. We affirm the judgment of the District Court.
¶2 The issues presented on appeal are as follows:
¶3 1. Did the District Court err when it denied Flores’ motion for a mistrial after the State arrested a defense witness in the presence of the jury?
¶4 2. Did the District Court err when it allowed the State to introduce photographs of the victim’s wounds?
¶5 3. Did the District Court err when it limited Flores’ impeachment of Milton Harshbarger?
¶6 4. Did the District Court err when it denied Flores’ request to treat Milton Harshbarger as a hostile witness?
¶7 5. Did the District Court err when it denied Flores’ instruction on the lesser included offense of misdemeanor assault?
¶8 6. Does the doctrine of double jeopardy bar further prosecution in this case?
FACTUAL BACKGROUND
¶9 On June 12,1996, outside a bar near Hamilton, Juan Flores cut Mike Rosling’s forearm with a knife. Rosling was required to undergo surgery and extensive physical therapy, and can no longer work at his occupation because of his injuries. At trial, Flores claimed that he cut Rosling in self-defense because Rosling approached him while swinging a belt with a buckle. Rosling claimed that Flores attacked him as Rosling was backing away from Flores with his arm above his head for protection from Flores’ knife.
ISSUE 1
¶10 Did the District Court err when it denied Flores’ motion for a mistrial after the State arrested a defense witness in the presence of the jury?
¶ 11 When considering whether to grant or deny a mistrial we have held that the trial court must consider whether the defendant has been denied a fair and impartial trial. See State v. Partin (1997), 287 Mont. 12, 15, 951 P.2d 1002, 1005. A mistrial is considered an extreme remedy, only to be granted for manifest necessity as required by the ends of justice. See State v. Brush (1987), 228 Mont. 247, 252-53, 741 P.2d 1333, 1336. Consequently, trial judges are encouraged to consider alternatives to a mistrial, such as cautionary instructions. See State v. Moran (1988), 231 Mont. 387, 391, 753 P.2d 333, 336, cert. denied (1988), 488 U.S. 826, 109 S. Ct. 75, 102 L. Ed. 2d 52.
¶12 On appeal, we review the trial court’s decision for an abuse of discretion. See Moran 231 Mont. at 389, 753 P.2d at 336. If the trial judge acted rationally and responsibly, we will affirm his or her decision. See Moran, 231 Mont. at 389, 753 P.2d at 335.
¶13 Robert Fix testified as a defense witness at Flores’ trial. At the close of Fix’s testimony, he was arrested by the courtroom bailiff on an outstanding warrant for nonappearance in a DUI case. The arrest occurred in open court and in the presence of the jury. Flores requested that the District Court admonish the State and inform the jurors that they should disregard the incident. The District Court admonished the jurors as follows:
Ladies and gentlemen, as you saw, Mr. Fix was taken into custody by the sheriff’s office in connection with an unrelated matter. You are not to let that interfere with the evaluation of his testimony. That has nothing to do with his testimony today, and you’re not to consider it in evaluating whether or not you find his testimony to be credible.
¶14 Flores then moved for a mistrial, which the District Court denied. During the settling of jury instructions, Flores renewed his request for a mistrial. The District Court observed that although it would have been preferable for the arrest to have taken place outside the presence of the jury, what occurred was not “so shocking as to override the jury’s judgment.” The District Court attributed the incident to the bailiff’s inexperience and denied Flores’ renewed request for a mistrial.
¶15 In his closing argument, defense counsel admitted that “Mr. Fix was not the most credible witness in the world.”
¶ 16 On appeal, Flores insists that the State knew what was about to happen before it transpired. This is the same argument Flores presented to the District Court. The District Court rejected Flores’ asser tion that the State had prior knowledge and should be held responsible for Fix’s arrest in the jury’s presence.
¶17 Because a mistrial is an exceptional remedy, something short of a mistrial is preferred unless the ends of justice require otherwise. We have held that a trial court’s denial of a motion for mistrial is entitled to deference on appeal and should not be second guessed by this Court. See State v. Walker (1996), 280 Mont. 346, 352, 930 P.2d 60, 63-64; Brush, 228 Mont. at 252-53, 741 P.2d at 1336. We conclude that Flores has not established a reason why the District Court’s cautionary instruction to the jury did not serve the ends of justice in light of the particular facts of this case. Certainly, the arrest of a witness in front of a jury is a practice that we condemn; however, as the State indicates, the prejudice as a result of this ill-timed arrest does not rise to the level necessary to justify a mistrial.
¶18 Accordingly, we conclude that the District Court did not abuse its discretion when it denied Flores’ motion for a mistrial based upon Fix’s in-court arrest.
ISSUE 2
¶19 Did the District Court err when it allowed the State to introduce photographs of the victim’s wounds?
¶20 The admissibility of evidence is within the sound discretion of the trial court. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The trial court must consider the relevance of the photographic evidence, and whether its probative value outweighs its prejudicial effect. See State v. McKeon (1997), 282 Mont. 397, 404, 938 P.2d 643, 647. We have recognized that photographs are not inadmissible simply because they are gruesome or depict the brutality and viciousness of the crime. See Gollehon, 262 Mont. at 302, 864 P.2d at 1263.
¶21 Flores appeals the District Court’s admission into evidence of four photographs of Rosling’s injury which were taken immediately following his altercation with Flores. The photographs are graphic and depict a large gash wound that exposes tissue, muscle, and bone. Flores contends, pursuant to Rule 403, M.R.Evid., that the only utility of the photographs was to inflame the passions of the jury and that any probative value of the photographs was outweighed by their prej - udicial effect. Flores maintains that if there was any need for the State to show the jury the location of Rosling’s wound, the scars on his forearm would have sufficed. Flores suggests that there is a reasonable possibility that the photographs helped convict him.
¶22 We agree with the District Court and the State that these photographs, as gruesome as they appear, were properly admitted because they were essential to the jury’s understanding of the case. Flores testified that he cut Rosling in self-defense while Rosling was approaching him with his arm raised and while swinging a belt with a buckle. Rosling, on the other hand, testified that Flores attacked him with a knife while he was backing away from Flores with his arm above his head for protection. Thus, the photographs were relevant to both the State and the defense to show the position of Rosling’s arm at the moment when he was cut.
¶23 The photographs also helped provide the jurors with an understanding of the nature and extent of the injury so that if they were convinced that Flores acted in self-defense, they could determine whether Flores exercised reasonable force.
¶24 Finally, the photographs aided the jury in its determination of whether the State had proven the “serious bodily injury” element of aggravated assault. Flores maintains that he stipulated to the serious nature of the injury so that the photographs would not be shown to the jury. However, Flores contradicted himself when he requested at trial that the District Court instruct the jury on the lesser included offense of assault which does not include the element of “serious bodily injury.”
¶25 For these reasons, we conclude that the photographs were relevant and their probative value outweighed any prejudicial effect they may have had. Accordingly, we affirm the judgment of the District Court.
ISSUE 3
¶26 Did the District Court err when it limited the impeachment of Milton Harshbarger?
¶27 The standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. See State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836. See also State v. Mergenthaler (1994), 263 Mont. 198, 204, 868 P.2d 560, 563; State v. Later (1993), 260 Mont. 363, 364, 860 P.2d 135, 136.
¶28 During trial, Flores proposed that he be allowed to question defense witness Milton Harshbarger about a pending assault charge involving Harshbarger’s ex-wife. Flores maintained that Harshbarger had a motive to testify favorably for the State because his misdemeanor assault charge could be elevated to a felony since his ex-wife suffered a broken nose in the assault. Flores argues that the District Court erroneously restricted his cross- examination of Harshbarger by not allowing extensive examination regarding the pending assault charge.
¶29 The District Court expressed concern about Harshbarger’s ability to answer questions which called for legal conclusions, such as when a misdemeanor could be elevated to a felony, and the possibility that such questions may confuse the issues. Rather than allowing Flores to ask Harshbarger to give legal conclusions, the District Court ruled that Flores could question Harshbarger regarding whether he had a criminal charge pending before the court, “as long as we do not get into ... his knowledge of felonies and misdemeanors,” and then form any arguments regarding Harshbarger’s testimonial bias toward the State in his closing remarks. Flores questioned Harshbarger about the pending criminal charge, but never argued how it might relate to testimonial bias in his summation.
¶30 We have permitted cross-examination on threats or inducements by the State, the failure to charge the witness with a crime, and the reason for the witness’s presence in jail, see State v. Ponthier (1959), 136 Mont. 198, 346 P.2d 974; on claimed intimidation of witnesses, see State v. Booke (1978), 178 Mont. 225, 583 P.2d 405; and on threats and assaults to the witness by a party, see Cissel v. Western Plumbing and Heating, Inc. (1980), 188 Mont. 149, 612 P.2d 206. See State v. Short (1985), 217 Mont. 62, 67, 702 P.2d 979, 982.
¶31 In Ponthier, 136 Mont. at 208, 346 P.2d at 979, we held that:
Even if the witness were charged with some other offense by the prosecuting authorities, petitioner was entitled to show by cross[-]examination that his testimony was affected by fear or favor growing out of his detention. ... If it was not clear in the Ritz case, it should be made clear here, that a defendant is entitled to show, by cross-examination that a State’s witness’ testimony is affected by fear or favor growing out of his detention by reason of any offense.
More recently, in Short, the trial court limited the defendant’s right to cross-examine his co- actor, but did allow evidence that the witness had charges pending against him for stealing the defendant’s property in another state. We held that the “cross-examination brought out all the information necessary to argue the credibility, motive and bias of this witness to the jury.” Short, 217 Mont. at 68, 702 P.2d at 982.
¶32 Based on our review of the record in this case, and our application of relevant case law, we conclude that the District Court granted Flores adequate freedom to impeach Harshbarger and that it was Flores himself who did not take full advantage of the District Court’s ruling. Flores was free to make the points he wanted to make by questioning Harshbarger about the pending charge, and then arguing in summation that Harshbarger was less than a reliable witness. The District Court’s ruling allowed a cross-examination that would have brought out all the information necessary to argue the credibility, motive, and bias of Harshbarger to the jury. We therefore reject Flores’ allegation of error regarding the District Court’s limitation on his freedom to impeach Harshbarger, and conclude that the District Court did not abuse its discretion.
ISSUE 4
¶33 Did the District Court err when it denied Flores’ request to treat Milton Harshbarger as a hostile witness?
¶34 Flores asserts that the District Court abused its discretion when it refused to allow him to treat Milton Harshbarger as a hostile witness for purposes of asking leading questions even though Harshbarger was listed on the information as one of the State’s witnesses and was a close friend of the victim. Flores maintains that the District Court’s ruling prejudiced his ability to effectively elicit testimony in support of his theory of self-defense.
¶35 As stated above, the standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. See State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836.
¶36 Flores used leading questions throughout Harshbarger’s direct examination to elicit facts regarding the crime itself. It was not until Flores began to examine Harshbarger regarding subsequent statements he made to the police that the State objected to Flores leading the witness. The District Court ruled that Harshbarger had not yet been shown to be “hostile” or uncooperative, and indicated that he would sustain any further objections to leading questions. The next time the State objected, Flores was permitted to rephrase his question and continue with his examination.
¶37 Although the District Court did not characterize Harshbarger as a hostile witness in relation to Flores and, therefore, did not allow Flores to use leading questions, the District Court refused to allow Flores to use a police report to refresh the witness’s recollection as if he were a “friendly” witness. Despite this obviously conflicting characterization of the witness, Flores has failed to show how the District Court’s rulings substantially interfered with his ability to present his theory of self-defense. Section 46-20-701(1), MCA, provides that “[a] cause may not be reversed by reason of any error committed by the trial court against the convicted person unless the record shows that the error was prejudicial.”
¶38 We conclude that despite the District Court’s ruling with regard to the manner in which Flores was allowed to question Harshbarger, Flores was still able to effectively present his theory of self-defense. Flores was allowed to use leading questions throughout Harshbarger’s direct examination to elicit facts regarding the crime itself. Because the error in this instance was not prejudicial, we conclude that the District Court did not abuse its discretion.
ISSUE 5
¶39 Did the District Court err when it denied Flores’ instruction on the lesser included offense of misdemeanor assault?
¶40 As stated above, the standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. See Sullivan, 266 Mont. at 324, 880 P.2d at 836.
¶41 Flores was charged with aggravated assault pursuant to § 45-5-202, MCA, which states:
(1) A person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another.
(2) A person commits the offense of felony assault if the person purposely or knowingly causes:
(a) bodily injury to another with a weapon; or
(b) reasonable apprehension of serious bodily injury in another by use of a weapon.
¶42 At trial, Flores requested an instruction on misdemeanor assault as a lesser included offense of aggravated assault. Misdemeanor assault is defined in § 45-5-201(1), MCA:
A person commits the offense of assault if he:
(a) purposely or knowingly causes bodily injury to another;
(b) negligently causes bodily injury to another with a weapon;
(c) purposely or knowingly makes physical contact of an insulting or provoking nature with any individual; or
(d) purposely or knowingly causes reasonable apprehension of bodily injury in another.
¶43 Flores contends that the jury could find that he inflicted only “bodily injury,” which is required for misdemeanor assault, rather than “serious bodily injury,” which is required for aggravated assault. See §§ 45-5-201 and -202(1), MCA. Alternatively, Flores argues that the jury could find that he only caused “reasonable apprehension of bodily injury,” which is another basis for a misdemeanor assault conviction, when he was threatening the victim and his friends outside the bar, but still believe that when the victim approached Flores while swinging his belt over his head, Flores was acting in self-defense.
¶44 The District Court declined the instruction because it concluded that there was no evidence to support such an instruction. We have held that before a criminal defendant is entitled to a jury instruction on a lesser included offense, he or she must show any evidence in the record from which the jury could rationally find him or her guilty of the lesser offense and acquit him or her of the greater. See § 46-16-607(2), MCA; State v. Castle (1997), 285 Mont. 363, 367, 948 P.2d 688, 690.
¶45 We conclude that Flores’ first theory, that the jury could have found that he inflicted only “bodily injury” and, thus, the instruction was required, fails to satisfy the requirement set forth in Castle and § 46-16-607(2), MCA. The definition of “serious bodily injury” which is required for a conviction of aggravated assault, is bodily injury that “creates a substantial risk of death” or “causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.” Section 45-2-101(64), MCA. “Bodily injury,” as required for misdemeanor assault, means “physical pain, illness, or any impairment of physical condition and includes mental illness or impairment.” Section 45-2-101(5), MCA.
¶46 The evidence at trial clearly establishes that Rosling suffered a serious bodily injury. The photographs taken of Rosling immediately following the knifing show a wide, deep, gouge-wound to Rosling’s right forearm which exposes tom muscle, tissue, and bone. The injury precludes Rosling from working in the occupation in which he worked prior to the injury. Rosling had to undergo physical therapy to develop mobility and range of motion in his right hand and, at the time of trial, Rosling still could not make a closed fist. Moreover, Flores stipulated to the severity of Rosling’s injury. Thus, the evidence clearly demonstrates that Rosling suffered more than “pain” or “impairment” or “reasonable apprehension of bodily injury.” Rather, Rosling suffered permanent disfigurement and protracted loss of function of his right hand.
¶47 We conclude that the District Court was correct to refuse to instruct the jury on misdemeanor assault as a lesser included offense of aggravated assault because the injuries in this case clearly required an instruction on the greater offense and provided no evidence that merely a misdemeanor assault was committed.
¶48 With regard to Flores’ claim that an instruction on the lesser included offense of misdemeanor assault would have bolstered his theory of self-defense, we agree with the District Court that Flores’ theory was sufficiently bolstered by the jury instructions regarding self-defense. Flores need not ensure that the jurors are instructed on how to convict him of a separate crime in order for them to conclude that he acted in self-defense.
¶49 Therefore, we conclude that the District Court did not abuse its discretion when it refused to instruct the jury on misdemeanor assault as a lesser included offense of aggravated assault.
ISSUE 6
¶50 Does the doctrine of double jeopardy bar farther prosecution in this case?
¶51 Flores maintains that this Court should not allow a retrial of this case on remand because the State, through its intentional misconduct, successfully induced Flores to move for a mistrial, which was denied. Flores claims that double jeopardy attaches when a mistrial should have been granted by the District Court, but was not. He further argues that the Montana Constitution guarantees Montana citizens a fair trial and that if the State intentionally denies a citizen that right, the citizen should not have to face a second trial that the State is then better prepared to win.
¶52 The standard of review of a district court’s ruling on a motion for mistrial in a criminal case is whether there is clear and convincing evidence that the court’s ruling is erroneous. See State v. Greytack (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. This Court has held that a mistrial is appropriate only when there is a demonstration of manifest necessity or when the defendant has been denied a fair and impartial trial. See State v. Partin (1997), 287 Mont. 12, 15, 951 P.2d 1002, 1005.
¶53 The intentional misconduct Flores claims the State committed in order to deprive him of a fair trial is as follows: (1) the arrest of Fix, a defense witness, in the presence of the jury; (2) the State’s introduction of photographs of Rosling’s injury; (3) the State’s unsuccessfiil attempt to introduce the impeachment testimony of Sergeant Bruce Hennell after the State and Flores agreed that Hennell would not testify; (4) the intimidation that Robert Lambert, Robert Fix, and Milton Harshbarger may have felt from the State when they agreed to testify; (5) the State’s failure to charge Rosling with assault, even though Rosling admitted that he threw a beer bottle at Flores during the altercation; (6) the State’s failure to investigate a threat allegedly made by Harshbarger to two defense witnesses prior to trial; and (7) the State’s questioning of Flores about whether he received public assistance.
¶54 Flores claims that the intentional misconduct of the State was enough to cause a mistrial. Any retrial of the case, he contends, should then be barred by the doctrine of double jeopardy. Flores maintains that because he unsuccessfully moved for a mistrial, when one should have been granted, double jeopardy should have the same effect of barring a retrial if this case is remanded.
¶55 We discussed above the arrest of Fix in the presence of the jury, as well as the introduction of the photographs of Rosling’s injury. In both instances, we concluded that these alleged errors did not deprive Flores of a fair trial and we affirmed the judgment of the District Court.
¶56 ■ With regard to the State’s attempt to introduce impeachment testimony of Hennell after the State and Flores had agreed that the State would not introduce him as a witness, we conclude that because the State did not successfully call the officer to the stand to testify, Flores suffered no prejudice from the State’s unsuccessful attempt.
¶57 Flores’ allegation that the State indirectly intimidated those witnesses who had criminal matters pending before the court also does not rise to the level of denying Flores his right to a fair trial. Flores contends that because Milton Harshbarger, Robert Lambert, and Robert Fix had an interest in protecting themselves from further prosecution in their own pending criminal cases, the State was able to indirectly exert enough control over them to cause them to testify favorably for the State and against Flores. The facts of this case indicate otherwise. Prior to trial, Flores raised these concerns to the District Court in chambers. Specifically, with regard to Robert Lambert, who was a bystander at the bar where the altercation took place, the District Court concluded that if Lambert insisted on testimonial immunity he would receive it. When the District Court asked Flores if he had similar concerns regarding other witnesses who might need immunity, Flores specifically said that no witness other than Lambert would need testimonial immunity, including Fix and Harshbarger. Moreover, as discussed above, the District Court permitted Flores to question Harshbarger about his pending criminal charge and argue any inferences regarding Harshbarger’s testimonial bias as a result of that charge. For these reasons, we conclude that this alleged error did not deny Flores a fair trial.
¶58 Flores’ claim that he was denied a fair trial because Rosling was not charged with assault for throwing a beer bottle at him during the altercation is equally as inconsequential to Flores’ right to a fair trial. At trial, Harshbarger testified that he saw Rosling throw a beer bottle at Flores in order to keep Flores at a distance. Rosling himself stated that “[w]hen Flores first burst out of the [bar] with the knife in his hand, I said back off, and I threw the beer bottle.” In whatever manner the State chose;to address Rosling’s actions during the altercation with Flores, whether the State concluded that he assaulted Flores or was acting in self-defense, we conclude that it had little bearing on the fairness of Flores’ trial. Flores was free to explain his theory of the State’s bias against him in his summation. As for his ability to present his defense of self-defense, we conclude that the State did not impede Flores by not charging Rosling with misdemeanor assault.
¶59 Likewise, with regard to Flores’ complaint that the State did nothing to investigate Harshbarger’s threat to Fix and another witness prior to trial, we conclude that because Flores was able to question several witnesses about this matter and present his theory of bias in his closing remarks, Flores was not denied a fair trial.
¶60 Finally, with regard to the State’s question to Flores regarding whether he receives public assistance, we agree with the District Court that it was an acceptable follow-up question to whether Flores was employed and how he obtained an income. The issue of Flores’ financial condition was elicited on direct examination and was appropriately re-addressed in the State’s cross-examination.
¶61 Based on our review of the facts of this case, we conclude that Flores was not denied a fair and impartial trial. Flores has failed to demonstrate manifest necessity and there exists no clear and convincing evidence that the District Court’s rulings were erroneous. We further conclude that because we affirm the judgment of the District Court and the jury’s verdict, there is no need to address the issue of whether the doctrine of double jeopardy bars the retrial of this case.
¶62 The judgment of the District Court and jury is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, HUNT and LEAPHART concur.
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] |
On November 17,1997, it was the judgment of the court that the defendant be incarcerated: 1) At the Montana State Prison for a term of five (5) years and one (1) month for the offense of DUI, a Felony; 2) In the Flathead County Detention Center for a concurrent term of six (6) months for the offense of Driving while suspended or revoked; 3) In the Flathead County Detention Center for a concurrent term of ninety (90) days for the offense of Driving without insurance; 4) In the Flathead County Detention Center for a concurrent term of six (6) months for the offense of Resisting Arrest. Of this period of incarceration, four (4) years are suspended. Defendant must comply with conditions of parole and probation as stated in the November 17, 1997 judgment. The defendant is to be given credit for 111 days served in the Flathead County Detention Center.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, 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 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 to 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 provides: “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.” (Section 45-18-904(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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Richard Walter Strong for representing himself in this matter.
|
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On September 29,1997, the court found the defendant in violation of the conditions of his suspended sentence and the court now having been fully advised as to the facts of the case, it is the judgment of the court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby sentenced to a term of ten (10) years in the Montana State Prison at Deer Lodge, Montana. It is the recommendation of the court that the defendant be considered for placement in the pre-release program. It is also the recommendation of the court that as a condition of any parole or early release that the defendant pay all of the restitution as ordered in the Judgment done in open court on the 2nd day of December, 1996. It is also the recommendation of the court to the Department of Corrections that the defendant receive counseling as is appropriate, particularly, anger management counseling, while at the Montana State Prison. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from May 22, 1996, through December 12, 1996; from July 18,1997, through August 1,1997; from August 6, 1997, through date of sentencing, September 29,1997, for two hundred seventy-five (275) days jail time which he has previously served.
Done in open Court this 19th day of February, 1998.
DATED this 12th day of March, 1998.
On February 19, 1998, 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 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 to 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 provides: “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.” (Section 45-18-904(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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Joseph Todd Haubrich for representing himself in this matter.
|
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OnNovember 14,1997, it was the judgment ofthe court that defendant’s suspended imposition of sentence for the felony offense of Sexual Assault is hereby revoked and it is ordered that the defendant, Gordon Iverson Conrad, serve ten (10) years at the Montana State Prison, at Deer Lodge, Montana, with one (1) year credit of the suspended sentence. Further, defendant is to complete Phase I and II of the Sex Offender Program before becoming eligible for parole.
On February 20, 1998, 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 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 to 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 provides: “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.” (Section 45-18-904(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.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.
The Sentence Review Board wishes to thank Gordon Iverson Conrad for representing himself in this matter.
|
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On March 5,1998, it was ordered that for the offense of Partner or Family Member Assault, a Felony, the defendant is sentenced to Partner or Family Member Assault, a felony, the defendant is sentenced to Montana State Prison for five (5) years. The defendant shall pay a fine of $500 and the mandatory surcharges of $25.00. Should defendant be granted parole, he shall abide by conditions as stated in the March 5,1998 judgment. The defendant is granted 97 days’ credit for time served prior to sentencing.
On June 4,1998, 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 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 to 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, that he also understood his right to appointed counsel to represent him but waived that and stated that he wished to proceed.
After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended so that the defendant is ineligible for parole or participation in a supervised release program for the entire five (5) year sentence.
The Sentence Review Board finds that the defendant lacks any remorse for his offense, that his previous record reveals that he was once imprisoned for stabbing a victim, that he is violent and a danger to society, and that the sentence given is clearly inadequate. The modification of the sentence is being imposed for the protection of society.
Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton
The Sentence Review Board wishes to thank Victor A. Harris for representing himself in this matter.
|
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 Appellant Richard D. Schaff filed a petition for post-conviction relief in the Thirteenth Judicial District Court, Yellowstone County. The District Court denied the petition, and Schaff appeals. We affirm the judgment of the District Court.
¶2 We restate the sole issue on appeal as follows:
¶3 Did the District Court err in denying Schaff s petition for post-conviction relief?
BACKGROUND
¶4 Richard D. Schaff was charged by information with one count of attempted deliberate homicide, one count of aggravated kidnaping, and two counts of sexual intercourse without consent on October 19, 1995. The information was then amended on January 8, 1996, to include one count of sexual assault, and amended for a second time on July 29,1996, to include one count of witness tampering. Pursuant to a plea agreement, Schaff pled guilty to attempted deliberate homicide and witness tampering on September 12,1996. The remaining charges against Schaff were dismissed.
¶5 On November 12, 1996, Schaff filed a motion to withdraw his guilty plea. The District Court denied Schaff s motion on December 13, 1996, and sentenced Schaff, according to the terms of his plea agreement, on December 19,1996. Schaff appealed the District Court’s denial of his motion to withdraw his guilty plea on January 10, 1997. We affirmed the District Court on May 4, 1998. See State v. Schaff, 1998 MT 104, 288 Mont. 421, 958 P.2d 682 (Schaff I).
¶6 On April 2,1999, Schaff filed a petition for post-conviction relief, alleging that he received ineffective assistance of counsel. The District Court denied Schaffs petition, without conducting a hearing, on January 7, 2000. Schaff subsequently appealed the District Court’s denial of his petition on February 2,2000. We examined Schaffs claim and determined that he should have been permitted a hearing to present the following non-record based ineffective assistance of counsel claims: (1) whether he received competent advice of counsel before entering his guilty plea; and (2) whether he was misled to think that he was required to proceed at the hearing on his motion to withdraw his guilty plea with his trial counsel when he was legally entitled to be represented by another attorney. State v. Schaff, 2001 MT 130, ¶¶ 8-10, 305 Mont. 427, ¶¶ 8-10, 28 P.3d 1073, ¶¶ 8-10 (Schaff II). Accordingly, we remanded the case to the District Court to appoint counsel and conduct a hearing on Schaffs petition for post-conviction relief on July 25, 2001. Schaff II, ¶ 11.
¶7 The District Court conducted a hearing on Schaffs petition for post-conviction relief on December 14, 2001. The District Court then denied Schaffs petition on March 20, 2002. Schaff appealed on April 18, 2002.
STANDARD OF REVIEW
¶8 Our standard of review of a district court’s denial of a petition for post-conviction relief is whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d 753, ¶ 9.
DISCUSSION
¶9 Did the District Court err in denying Schaffs petition for post-conviction relief?
¶10 Schaffs petition for post-conviction relief asserted that he had received ineffective assistance of counsel from attorney Vernon Woodward. Woodward represented Schaff from the date of his arraignment (October 19,1995), until January 14,1997. As counsel for Schaff, Woodward: (1) supplied Schaff with copies of the discovery from his case; (2) arranged for Schaff to be transported to the State evidence room to examine the physical evidence from his case; (3) interviewed the victim and discussed her statements with Schaff; (4) provided Schaff with a copy of every document he sent or received that was related to Schaffs case; and (5) advised Schaff of the strengths and weaknesses of his case. Woodward also informed Schaff of the risks associated with going to trial, and told Schaff that if he were convicted of all of the offenses charged in the amended information, he would receive a prison sentence of approximately 100 years. Finally, Woodward advised Schaff that although he believed the evidence against Schaff was compelling, he thought Schaff had a chance of being acquitted at trial.
¶11 Woodward negotiated two plea agreements as part of his representation of Schaff. The first plea agreement called for Schaff to serve a total of seventy years in Montana State Prison. Schaff initially signed this first agreement, but ultimately rescinded the agreement before entering a plea of guilty in the District Court. The second plea agreement called for Schaff to serve a total of fifty years in Montana State Prison. Woodward received this second agreement on September 11, 1996, and brought it to Schaff at approximately 3:30 p.m. Woodward informed Schaff that the State had declared that the agreement was only available until the close of business that day. Schaff signed the agreement before 5:00 p.m. Schaff then entered a plea of guilty in the District Court on September 12,1996.
¶12 In October of 1996, Schaff contacted Woodward and expressed a desire to withdraw his guilty plea. Woodward met with Schaff on October 31, 1996, and discussed the strengths and weaknesses of his case. Woodward again informed Schaff that although the evidence against him was compelling, he believed that if Schaff went to trial, he would have a “fighting chance.”
¶13 Schaff subsequently filed a motion to withdraw his guilty plea on November 12,1996. After Schaff filed his motion, Woodward met with Schaff on November 20, 1996, to discuss the hearing on his motion. Woodward asked Schaff if he wanted another attorney to represent him at the hearing, and Schaff declined. Despite Schaff s request that Woodward represent him, Woodward arranged for Chief Public Defender L. Sanford Selvey to attend the hearing in case Schaff changed his mind. Selvey attended the hearing, however, Schaff continued to request that Woodward represent him.
¶14 The hearing on Schaffs motion to withdraw his guilty plea was conducted on November 21, 1996. At the hearing, Woodward questioned Schaff as follows:
Q. Mr. Schaff, the Court has asked that I inquire as to your willingness to allow me to proceed as your attorney. You heard that?
A. Yes.
Q. Okay. You and I discussed that yesterday, did we not?
A. Yes, we did.
Q. Are you dissatisfied with my services?
A. No, I’m not.
Q. Do you want me to continue to represent you for purposes of today’s hearing?
A. Yes, I do.
Q. And in the event that the Court allows you to withdraw your plea of guilty and to proceed to trial on the merits, do you wish for me to continue as your attorney at that time?
Q. Do you want me to continue as your attorney?
A. Yes.
Q. You understand, do you not, that if you don’t want me as your attorney, you have the right to say so?
A. Yes, I know that.
Q. And you understand that under the circumstances of the present situation that if you say you don’t want me, the likelihood is that the Court will appoint the Public Defender’s Office to represent you?
A. Correct.
Q. You understand that?
A. Yes.
Q. And are you willing to go forward with me being your lawyer today?
A. Yes, I am.
¶15 As we noted above, the District Court denied Schaffs motion to withdraw his guilty plea, and we affirmed the District Court’s decision. Schaff I, ¶ 34. Schaff then filed a petition for post-conviction relief, asserting that Woodward had provided him with ineffective assistance of counsel. The District Court denied Schaffs petition without conducting a hearing. Schaff appealed, and we remanded the case to the District Court to conduct a hearing on the non-record based ineffective assistance of counsel claims contained in Schaffs petition for post-conviction relief. Schaff II, ¶ 11.
¶16 Upon remand, the District Court conducted a hearing and admitted various pieces of evidence, including two boxes of files generated by Woodward during the course of his representation of Schaff. The District Court considered the evidence and determined that Woodward had provided effective, if not exemplary, assistance of counsel to Schaff throughout the proceedings. The District Court further noted that there was no evidence that Woodward pressured Schaff into signing the plea agreement, or that Schaff was not fully informed of his rights before entering his guilty plea on September 12, 1996. Finally, the District Court found that Schaff was fully advised of his right to be represented by another attorney at the hearing on his motion to withdraw his guilty plea. Accordingly, the District Court concluded that Woodward had provided Schaff with effective assistance of counsel.
¶17 On appeal, Schaff contends that the District Court’s conclusions were not supported by substantial evidence. Specifically, Schaff maintains that Woodward pressured him into signing the plea agreement, and that Woodward did not inform him of his right to be represented by another attorney at the hearing on his motion to withdraw his guilty plea. Therefore, Schaff asserts that the District Court erred in concluding that he had received effective assistance of counsel from Woodward.
¶18 This Court has previously noted that “a petitioner seeking to reverse a district court’s denial of a petition for postconviction relief based on a claim of ineffective assistance of counsel bears a heavy burden.” State v. Hagen, 2002 MT 190, ¶ 17, 311 Mont. 117, ¶ 17, 53 P.3d 885, ¶ 17. To assess a claim of ineffective assistance of counsel, both on direct appeal and in post-conviction proceedings, we apply the two-prong test from Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Hagen, ¶ 17. The first prong of the Strickland test requires the defendant to show that his counsel’s performance was deficient. To assess deficient performance, this Court applies the “reasonably effective assistance” test for whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases. Hagen, ¶ 17. The second prong of the Strickland test requires the defendant to prove that his counsel’s deficient performance so prejudiced the defendant as to deprive him of a fair trial. Hagen, ¶ 18. In other words, the defendant must demonstrate that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hagen, ¶ 18 (citations omitted).
¶19 In the instant case, Schaff has proven neither that Woodward’s performance was deficient, nor that Woodward’s performance caused him prejudice. That is, although Schaff alleges that he received ineffective assistance of counsel from Woodward, the record simply does not support his allegation. In fact, the record reflects that Woodward was careful to let Schaff himself decide both: (1) whether or not to sign the plea agreement; and (2) whether to withdraw his guilty plea. Further, the record shows that Woodward not only questioned Schaff about his knowledge of his right to have another attorney at the hearing on his motion to withdraw his guilty plea, but that Woodward actually provided another attorney, by arranging for Selvey to attend the hearing in case Schaff wanted someone other than Woodward to represent him. A claim of ineffective assistance of counsel “must be grounded in facts found in the record, not on mere conclusory allegations.” Hagen, ¶ 19 (citations omitted). Schaffs claims against Woodward are not grounded in facts found within the record of this case. Accordingly, we hold that the District Court did not err in denying SchafPs petition for post-conviction relief.
¶20 For the foregoing reasons, the judgment of the District Court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES COTTER, LEAPHART and RICE concur.
|
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JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Russell Lee Williamson (Williamson) appeals from the judgment entered by the Seventeenth Judicial District Court, Blaine County, on its order denying his motion to suppress evidence. We reverse.
¶2 The issue on appeal is whether the District Court erred in concluding that Officer Mark Weber had probable cause to stop Williamson and in denying Williamson’s motion to suppress on that basis.
BACKGROUND
¶3 On June 20,1995, the Blaine County Sheriff’s Office dispatcher received a telephone call from Sue Reid (Reid) reporting a drunk driver in the vicinity of the C-Store convenience store (C-Store) in Chinook, Montana. The dispatch record indicates that Reid reported a “very drunk” older male, driving an old blue Chevy pickup truck which, at the time, was parked behind the C-Store, and gave the license plate number of the truck. The dispatcher contacted Officer Mark Weber (Weber) of the Chinook Police Department and, according to Weber’s incident report, informed him that Reid had reported a “possible drunk driver” and gave him a description of the driver and vehicle. While the dispatcher’s report describes the vehicle as a Chevy truck, Weber’s report indicates he was told it was a Ford truck. As Weber was responding to the call, the dispatcher again contacted him to relay the additional information that the driver had left the C-Store in the truck and was westbound on Highway 2.
¶4 When Weber reached the area of the C-Store, which is within the Chinook city limits, he did not see the truck. However, he could see a group of vehicles driving west on Highway 2 approximately a mile away and outside the Chinook city limits. Weber could not positively identify the blue pickup truck as being among the group of vehicles but, acting on his belief that it was, he activated the top lights on his patrol car and followed the vehicles along Highway 2.
¶5 Weber caught up with the group of vehicles approximately three miles outside of Chinook, at which point he could see a blue Ford truck several vehicles ahead of him. Before he could pass enough vehicles to get directly behind it, the truck turned off the highway onto a gravel road. Weber also turned onto the gravel road and pulled up behind the truck with the lights of his patrol car flashing. The truck finally stopped about a quarter of a mile up the road. Weber had not observed any erratic driving or other indicators of alcohol impairment prior to stopping the truck. However, after talking with and observing the driver, eventually identified as Williamson, Weber arrested him for driving under the influence of alcohol (DUI) and transported him to the Blaine County Sheriffs Office.
¶6 Williamson was charged in Chinook City Court with DUI, second offense, in violation of § 61-8-401, MCA. He moved to suppress all the evidence gathered subsequent to the time his truck was stopped on the basis that Weber did not have probable cause to stop him. The City Court denied the motion. Williamson subsequently pled guilty to the DUI charge, conditioned on his right to appeal the City Court’s ruling on his motion to suppress, and renewed his motion in the District Court. The District Court affirmed the City Court’s denial of the motion to suppress and Williamson appealed.
STANDARD OF REVIEW
¶7 We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact were clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Fitzgerald (1997), 283 Mont. 162, 167, 940 P.2d 108, 111. The pertinent facts in this case are undisputed and, as a result, we address whether the District Court correctly applied the law in concluding that Weber had probable cause to stop Williamson.
DISCUSSION
¶8 Did the District Court err in concluding that Weber had probable cause to stop Williamson and in denying Williamson’s motion to suppress on that basis?
¶9 Williamson asserted that Weber needed probable cause for the stop because he was acting outside his territorial jurisdiction as a city police officer and the information within Weber’s knowledge at the time of the stop did not rise to the level of probable cause. On that basis, he argued that all evidence obtained subsequent to the stop should be suppressed. In denying the motion to suppress, the District Court concluded that the relayed information and descriptions from the citizen informant, combined with Weber’s observation of a blue truck matching the description given to him, provided the officer with probable cause to stop Williamson. Williamson contends that the facts within Weber’s knowledge at the time he stopped Williamson did not establish the probable cause necessary to justify the stop.
¶ 10 Before addressing whether the District Court erred in concluding that Weber had probable cause to stop Williamson, we take this opportunity to clarify the difference between the probable cause necessary to effectuate a valid arrest and the particularized suspicion necessary to justify an investigative stop under § 46-5-401, MCA. We also discuss the applicability of the probable cause standard — rather than particularized suspicion — in this case.
¶11 Section 46-5-401, MCA, authorizes law enforcement officers to conduct investigatory stops by providing that
[i]n order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.
An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. State v. Lee (1997), 282 Mont. 391, 394, 938 P.2d 637, 639 (citation omitted). When such a stop is challenged, the prosecution must show that there was objective data from which an experienced officer could make certain inferences resulting in a suspicion that the person is or has been engaged in wrongdoing. Lee, 282 Mont. at 394, 938 P.2d at 639 (citing State v. Gopher (1981), 193 Mont. 189, 193, 631 P.2d 293, 296). A particularized suspicion determination must be based on the totality of the circumstances in a given case. Lee, 282 Mont. at 394, 938 P.2d at 639.
¶ 12 While an investigatory stop may be based on only a particularized suspicion of criminal activity, an officer must have probable cause to justify a warrantless arrest.
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.
Section 46-6-311(1), MCA. Probable cause to arrest is established if the facts and circumstances within an officer’s personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that someone is committing or has committed an offense. Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 261, 841 P.2d 1137, 1141; State v. Schoffner (1991), 248 Mont. 260, 264, 811 P.2d 548, 551. Probable cause is evaluated in light of a trained law enforcement officer’s knowledge, taking into account all the relevant circumstances. City of Missoula v. Forest (1989), 236 Mont. 129, 132, 769 P.2d 699, 701 (citation omitted). Furthermore, although not requiring evidence sufficient to prove a person’s guilt, probable cause cannot be established based on an officer’s mere suspicion of criminal activity. State v. Lahr (1977), 172 Mont. 32, 35, 560 P.2d 527, 529 (citations omitted). Clearly, then, the probable cause standard is more stringent than particularized suspicion. See, e.g., State v. Anderson (1993), 258 Mont. 510, 514, 853 P.2d 1245, 1248.
¶13 The issue in this case is whether Weber had sufficient justification for stopping Williamson. As stated above, ordinarily an officer needs only a particularized suspicion for such a stop. Under the circumstances of this case and for the reasons discussed below, however, Weber needed probable cause, rather than a mere particularized suspicion, to stop Williamson.
¶ 14 It is undisputed that Weber was outside the Chinook city limits when he stopped Williamson and that, although § 7-32-4301(2), MCA, permits a city to authorize its police to make arrests up to 5 miles outside the city limits, the City of Chinook has never extended the jurisdiction of its police pursuant to this statute. Thus, Weber was acting outside his jurisdiction as a City of Chinook police officer when he stopped Williamson.
¶15 It is well-established in Montana that a peace officer does not have the authority to make a warrantless arrest when acting outside his or her jurisdiction. See, e.g., State v. McDole (1987), 226 Mont. 169, 172, 734 P.2d 683, 685. This limitation on a peace officer’s authority to arrest is based on Montana’s statute defining a “peace officer” as
any person who by virtue of the person’s office or public employment is vested by law with a duty to maintain public order and make arrests for offenses while acting within the scope of the person’s authority.
Section 46-1-202(16), MCA. Under this statute, a peace officer’s duty to maintain public order and make arrests only arises when the officer is acting within the scope of his or her authority. That scope of authority, however, is limited by the territorial jurisdictional limits of the law enforcement entity for which the officer works. Thus, a peace officer outside his or her territorial jurisdiction is outside the scope of his or her authority as a peace officer and is not authorized to make arrests in the capacity of a peace officer.
¶ 16 It is equally well-established, however, that a peace officer outside his or her jurisdiction does not lose the general characteristics of a private citizen and may make an arrest under circumstances which would authorize a private citizen to do so. See State v. Hendrickson (1997), 283 Mont. 105, 108, 939 P.2d 985, 987; State v. Sunford (1990), 244 Mont. 411, 414-15, 796 P.2d 1084, 1086; McDole, 226 Mont. at 172, 734 P.2d at 685. In this regard, § 46-6-502(1), MCA, provides that a private citizen “may arrest another when there is probable cause to believe that the person is committing or has committed an offense ....” Consequently, a peace officer such as Weber, when acting outside his territorial jurisdiction and as a private citizen, may arrest another under the citizen’s arrest statute when he has probable cause to believe that person is committing or has committed an offense; he may not act pursuant to § 46-6-311, MCA. See Hendrickson, 283 Mont. at 108, 939 P.2d at 987; McDole, 226 Mont. at 172, 734 P.2d at 685. The officer is not acting within the scope of his or her authority as a peace officer and, therefore, may not use criminal procedure statutes expressly limited in application to “peace officers.” For this same reason, an out-of-jurisdiction peace officer may not use the investigatory stop statute — with its particularized suspicion, rather than probable cause, standard — because its use is limited, by its terms, to peace officers. See § 46-5-401, MCA.
¶ 17 Nor is this analysis at odds with our holding in Maney v. State (1992), 255 Mont. 270, 275, 842 P.2d 704, 707, that a person employed as a law enforcement officer is still a peace officer in fact even when making an arrest outside the officer’s territorial jurisdiction under the authority of the citizen’s arrest statute. There, a city police officer stopped and arrested Maney for DUI several miles outside the officer’s jurisdiction. Maney was transported to the county sheriff’s office where the arresting officer requested him to submit to a breathalyzer test; Maney refused the test. The city police officer then confiscated Maney’s driver’s license pursuant to Montana’s implied consent statute. Maney, 255 Mont. at 272, 842 P.2d at 705. Maney petitioned for reinstatement of his driver’s license, and the district court denied his petition. Maney, 255 Mont. at 272, 842 P.2d at 705.
¶ 18 Maney argued on appeal that there was no arrest by a “peace officer” as required by § 61-8-402(1), MCA, because the arrest was made in the officer’s capacity as a private citizen under § 46-6-502, MCA, and, as a result, the implied consent statute did not apply. Maney, 255 Mont. at 275, 842 P.2d at 707. We concluded that a person employed as a law enforcement officer is within the statutory definition of “peace officer” even when outside the geographical limits of his or her jurisdiction because “[a] person is a peace officer by virtue of holding the particular job.” Maney, 255 Mont. at 275, 842 P.2d at 707. Consequently, Maney had been arrested by a peace officer as required by the implied consent statutes, even though the officer’s authority for the arrest was derived from the citizen’s arrest statute, and the implied consent statute applied to Maney’s refusal to submit to the breathalyzer test. Maney, 255 Mont. at 275-76, 842 P.2d at 707.
¶19 Our holding in Maney that a law enforcement officer is a peace officer in fact even when outside his or her territorial jurisdiction does not equate to a holding that an out-of-jurisdiction officer retains the authority to make investigatory stops on particularized suspicion pursuant to § 46-5-401, MCA, however. A law enforcement officer is always a peace officer, no matter his or her geographical location, because the officer is always a person “vested by law with a duty to maintain public order and make arrests for offenses ...” Section 46-1-202(16), MCA. Nevertheless, an officer may only assert his or her authority as a peace officer when “acting within the scope of [his or her] authority.” Section 46-1-202(16), MCA. The distinction is between “being” a peace officer and “acting” as a peace officer; a law enforcement officer is a peace officer at all times pursuant to Maney, but may act as a peace officer only when acting within the scope of his or her authority.
¶20 As a result, it is clear in this case that Weber, a peace officer acting outside his territorial jurisdiction, was limited to the authority provided to private citizens under § 46-6-502, MCA, and was required to have probable cause to stop Williamson. He could not make an investigatory stop on particularized suspicion under § 46-5-401, MCA, and have that suspicion ripen into probable cause to arrest based on evidence obtained after the stop. See, e.g., Jess, 255 Mont. at 261, 841 P.2d at 1141 (particularized suspicion for investigatory stop may ripen into probable cause to arrest through facts or incidents occurring after the stop). We turn, then, to our review of the District Court’s conclusion that, considering the information within Weber’s knowledge at the time he stopped Williamson, probable cause existed to make the stop.
¶21 As discussed above, probable cause is established if the facts and circumstances within an officer’s personal knowledge, or related to the officer by a reliable source, are sufficient to warrant a reasonable person to believe that another person is committing or has committed an offense. Jess, 255 Mont. at 261, 841 P.2d at 1141; Schoffner, 248 Mont. at 264, 811 P.2d at 551. A probable cause determination must be based on an assessment of all relevant circumstances, evaluated in light of the knowledge of a trained law enforcement officer. Forest, 236 Mont. at 132, 769 P.2d at 701. Mere suspicion on the officer’s part is not enough to establish probable cause to believe a person has committed an offense. Lahr, 172 Mont. at 35, 560 P.2d at 529.
¶22 The information within Weber’s knowledge at the time he stopped Williamson consisted of the citizen informant’s relayed report of a “possible” drunk driver in an early 1960s model blue Ford pickup truck and his observation of a truck matching that description. Williamson argues that this information was not sufficient to establish probable cause because Reid’s report of a possible drunk driver did not include enough detail to provide a basis for her opinion that the driver might be intoxicated and Weber failed to adequately corroborate Reid’s information before initiating the stop.
¶23 Generally, a law enforcement officer may rely on the report of a citizen informant in determining that there is probable cause to believe an offense has been committed. See, e.g., Schoffner, 248 Mont. at 264-65, 811 P.2d at 551-52; Jess, 255 Mont. at 261, 841 P.2d at 1141; Santee v. State, Dept. of Justice, Motor Vehicle Div. (1994), 267 Mont. 304, 308, 883 P.2d 829, 832; State v. Hammer (1988), 233 Mont. 101, 107, 759 P.2d 979, 983; State v. Ribera (1979), 183 Mont. 1, 6-7, 597 P.2d 1164, 1168. The citizen’s report is not necessarily sufficient to establish probable cause, however, and a review of our cases addressing citizen informant reports in relation to probable cause determinations reveals that there must be some indication of the reliability of — and the basis for — the citizen’s report.
¶24 In Schoffner, for example, three citizens witnessed a man break into, enter and rummage around in a laundromat. One witness called the police and gave the dispatcher an ongoing account of the man’s actions as they occurred, as well as a description of the man. The dispatcher relayed the information to a police officer. Schoffner, 248 Mont. at 263, 811 P.2d at 551. The officer apprehended the defendant, who matched the description of the suspect, shortly thereafter a block away from the scene of the crime and the three eyewitnesses posi tively identified him at the scene as the man they saw burglarize the laundromat. Schoffher, 248 Mont. at 263-64, 811 P.2d at 551. The basis for and reliability of the citizen informants’ report was established by the detailed account of the offense as it was happening and the citizens’ identification of the defendant in the presence of law enforcement personnel. We concluded, under those facts and circumstances, that the officer had probable cause to arrest the defendant. Schoffner, 248 Mont. at 265, 811 P.2d at 552.
¶25 In Santee, three separate witnesses informed a police officer that they had seen a highly intoxicated man they believed was about to drive his vehicle. Each witness spoke personally with the officer and either identified the defendant as the intoxicated person or identified the vehicle he was driving. Santee, 267 Mont. at 306, 883 P.2d at 830-31. We held that the officer had probable cause to arrest the defendant based on the three witness reports, each of which corroborated the others, the witnesses’ identification of the defendant in the officer’s presence and the officer’s observation of the defendant driving his vehicle. Santee, 267 Mont. at 308-09, 883 P.2d at 832. In Hammer, we also held that probable cause existed based, in part, on the report of a citizen informant. There, the informant was the victim of the crime. He spoke personally with officers at the scene of the crime, described in detail the events which had occurred prior to the officers’ arrival and identified the defendant as his assailant in the presence of the officers. Hammer, 233 Mont. at 104-05, 759 P.2d at 982-83.
¶26 Similarly, in Jess, we concluded there was probable cause to arrest the defendant where a citizen informant reported that she had observed a person in a pickup truck driving erratically, described the erratic nature of the driving, described the vehicle and gave the license plate number, and identified the defendant as the driver. Jess, 255 Mont. at 256, 841 P.2d at 1138. Furthermore, prior to the defendant’s arrest, the arresting officer also observed the defendant, saw indications that he was intoxicated and spoke personally with the citizen informant to confirm the information the informant had provided earlier. Jess, 255 Mont. at 261, 841 P.2d at 1141.
¶27 Finally, in Ribera, we held that a citizen informant’s tip was not sufficient to establish probable cause to arrest the defendant where the citizen’s information was based on observations made by a third party rather than on his personal knowledge. We concluded that, where a citizen informant’s report is based on another person’s statements, law enforcement officers are required to make further inquiry as to the underlying facts and circumstances on which the report is based in order to reduce the possibility of a mistake and to satisfy the minimum standards for establishing probable cause. Ribera, 183 Mont. at 7, 597 P.2d at 1168.
¶28 Thus, a citizen informant’s report is not sufficient to establish probable cause unless there is information indicating the underlying circumstances and the basis of the citizen’s knowledge that an offense has been or is being committed. Reviewing citizen informant Reid’s report in this case, as it was relayed to Weber, we conclude that Reid’s information did not contain sufficient information, in and of itself, to establish probable cause that an offense was being committed. First, Reid’s relayed report was merely that there was a possible drunk driver near the C-Store, together with descriptions of the driver and his vehicle. It contained no details of the basis for her conclusion that the driver possibly was intoxicated. Consequently, this case is factually distinguishable from cases such as Schoffner, where one of the informants gave the dispatcher a “blow by blow” account of the suspect’s actions as they occurred; Hammer, where the citizen informant was the victim and described in detail the events of the assault; and Jess, where the citizen informant particularly described the erratic nature of the defendant’s driving she had observed. See Schoffner, 248 Mont. at 263, 811 P.2d at 551; Hammer, 233 Mont. at 104-05, 759 P.2d at 982-83; Jess, 255 Mont. at 256, 841 P.2d at 1138.
¶29 Second, unlike the facts in Santee, 267 Mont. at 308, 883 P.2d at 830-31, Hammer, 233 Mont. at 104-05, 759 P.2d at 982-83, and Jess, 255 Mont. at 261, 841 P.2d at 1138, Weber did not speak with Reid, either personally or through the dispatcher, to discover the facts underlying her report or otherwise determine the basis for her knowledge and opinion regarding intoxication. In some instances, such as the citizen report in Schoffner which described the details of the offense as it occurred, a citizen informant’s report may contain enough detail to be essentially self-authenticating. However, where a citizen informant’s report is lacking such detail, it is incumbent on law enforcement to probe into the basis for and veracity of the report before relying on the report to determine that probable cause exists. Indeed, in the present case, the record does not indicate whether Reid’s report was based on her personal knowledge and observation of the alleged drunk driver or on information obtained from a third party and relayed by Reid to the dispatcher. In such circumstances, it is even more imperative that law enforcement officers inquire further into the basis for the report in order to avoid the possibility of a mistake and to satisfy at least the minimum requirements of probable cause. See Ribera, 183 Mont. at 7, 597 P.2d at 1168.
¶30 The State of Montana (State) asserts that Schoffner is factually similar to the present case and supports a conclusion that Reid’s relayed report was sufficient to establish probable cause to stop Williamson. As discussed above, however, Schoffner is readily distinguishable in that there, one of the citizen informants gave law enforcement a detailed description of the defendant’s actions constituting the offense as they occurred. Moreover, all three witnesses in that case spoke personally with law enforcement officers and identified the defendant at the scene of the offense. Schoffner, 248 Mont. at 263-64, 811 P.2d at 551. Here, Reid’s relayed report is devoid of any information as to why she believed the man at the C-Store was intoxicated and Weber did not inquire into the basis for Reid’s report before he stopped Williamson’s truck.
¶31 We conclude that Reid’s relayed report of the possible drunk driver was insufficient, in and of itself, to establish probable cause justifying Weber’s stop of Williamson’s truck. A probable cause determination must be based on all the facts and circumstances within the officer’s knowledge, however. Jess, 255 Mont. at 261, 841 P.2d at 1141; Schoffner, 248 Mont. at 264, 811 P.2d at 551. Thus, we examine whether Weber had knowledge of any other facts or circumstances which, when combined with Reid’s relayed report, would have established probable cause to believe that Williamson was committing an offense.
¶32 Upon receiving Reid’s report of a possible drunk driver via the dispatcher, Weber proceeded to the C-Store where he observed a group of vehicles about a mile away traveling west on Highway 2. Weber followed these vehicles and, when he caught up to them, he observed a blue Ford truck in the middle of the group which he believed to be the truck described by the dispatcher. Although Weber followed the truck for several miles before stopping it, he did not observe any erratic driving or other indications that the driver may have been under the influence of alcohol. Therefore, the only information Weber had in addition to Reid’s report was his observation of a pickup truck matching the description he had been given driving down the highway in the direction indicated by the dispatcher. The District Court concluded that this limited corroboration of Reid’s report was suffi cient to provide Weber with probable cause to stop Williamson. We cannot agree.
¶33 The information provided by Reid created, at most, a suspicion that an offense was being committed. Weber’s subsequent observation of Williamson’s truck provided no information which would raise this mere suspicion to a belief that an offense was being committed; the truck did not swerve, speed or otherwise indicate that the driver was impaired. Thus, when he stopped the truck, Weber still had nothing more than a suspicion that the driver was under the influence of alcohol. Such a suspicion is not enough to establish probable cause that an offense is being committed. Lahr, 172 Mont. at 35, 560 P.2d at 529.
¶34 Finally, the State asserts that the information within Reid’s knowledge established that she herself had probable cause to arrest Williamson under § 46-6-502(1), MCA. It further asserts that, pursuant to McDole, an out-of-jurisdiction officer may make an arrest “if a private citizen could have made a lawful arrest under the circumstances.” Thus, according to the State, because Reid could have made the citizen’s arrest, Weber automatically had the same authority to act. We disagree.
¶35 The probable cause Weber needed to stop Williamson is determined based on the facts and circumstances within his knowledge at the time he made the stop. See Jess, 255 Mont. at 261, 841 P.2d at 1141; Schoffner, 248 Mont. at 264, 811 P.2d at 551. Regardless of whether Reid had sufficient information to establish probable cause to arrest Williamson herself, our discussion above reflects that she did not provide that information to the dispatcher and, ultimately, Weber. As a result, Weber did not have sufficient information within his knowledge to establish probable cause to stop Williamson.
¶36 We conclude that, considering all the facts and circumstances within his knowledge at the time, Weber did not have probable cause to stop Williamson. As a result, we further conclude that the evidence obtained by him subsequent to the stop must be suppressed. We hold, therefore, that the District Court erred in concluding that Weber had probable cause to stop Williamson and in denying Williamson’s motion to suppress on that basis.
¶37 Reversed.
JUSTICES HUNT, LEAPHART, NELSON, REGNIER and TRIEWEILER concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Plaintiff William Schmidt (Schmidt) was injured during a single vehicle motorcycle accident that occurred on an Interstate 90 ramp under construction at the DeSmet Interchange near Missoula, Montana. Schmidt filed a complaint in negligence in the Fourth Judicial District Court, Missoula County, against Defendant Washington Contractors Group, Inc. (Washington), the general contractor for the “DeSmet Interchange Project,” and Defendant Alpine Construction, Inc. (Alpine), the subcontractor hired to control traffic during the construction project. The District Court subsequently entered an opinion and order granting summary judgment in favor of Defendants Washington and Alpine. From this opinion and order, Schmidt appeals. We reverse and remand for further proceedings consistent with this Opinion.
¶2 The sole issue raised on appeal is whether the District Court erred by granting Washington and Alpine summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Highway 93 and Interstate 90 intersect near Missoula, Montana, at a location called the DeSmet Interchange. The Montana Department of Transportation contracted with Washington to work as the general contractor for the DeSmet Interchange Project (the Project). As the general contractor, Washington was responsible for improving the overpass, on-ramps and off-ramps at the DeSmet Interchange during the spring and summer of 1995. Alpine, hired as subcontractor on the Project, was responsible for controlling traffic during the construction project which included posting signs. On August 21,1995, Schmidt was injured when he crashed his motorcycle while descending a temporary entrance ramp to Interstate 90 at the DeSmet Interchange. While the top-half of this temporary ramp was paved, the bottom-half was only graveled. Additionally, where the ramp interfaced with Interstate 90, an elevation difference of approximately six to eight inches existed and the ramp was repaired almost daily due to wear and tear. Schmidt’s accident occurred at the bottom of the temporary ramp where the graveled portion interfaced with the paved interstate and the elevation differential existed.
¶4 On May 30,1996, Schmidt filed a complaint against both Washington and Alpine for personal injuries resulting from his accident and requested a jury trial in the Fourth Judicial District Court, Missoula County. Schmidt alleged that Alpine was negligent in failing to adequately warn motorists of the elevation differential on the ramp and that Washington was negligent in failing to eliminate or mitigate the danger posed by the elevation differential. Additionally, Schmidt alleged that pursuant to agency law, Washington, as principal to its agent, Alpine, was responsible for Alpine’s negligence. Schmidt sought compensatory damages for his personal injuries and punitive damages for Washington’s and Alpine’s alleged gross negligence. The parties engaged in discovery resulting in a number of affidavits, depositions and answers to interrogatories.
¶5 Prior to trial, Washington and Alpine each filed a motion in limine to exclude evidence of motorcycle accidents on the ramp other than Schmidt’s and a motion for summary judgment on Schmidt’s entire claim. Additionally, Washington filed a motion for partial summary judgment on the issue of punitive damages. On June 10, 1997, after briefing and oral argument, the District Court entered an opin ion and order granting Washington and Alpine summary judgment, vacating the jury trial and dismissing Schmidt’s complaint with prejudice. Explaining that the grant of summary judgment was dispositive, the court declined to address the remaining pending motions. From this opinion and order, Schmidt appeals.
STANDARD OF REVIEW
¶6 Under Rule 56(c), M.R.Civ.P, summary judgment is proper only when the pleadings, depositions, answers to interrogatories, affidavits and admissions on file show no genuine issues of material fact exist and when the moving party is entitled to judgment as a matter of law. Four elements comprise a negligence cause of action: (1) duty; (2) breach of duty; (3) causation; and (4) damages. Wiley v. City of Glendive (1995), 272 Mont. 213, 217, 900 P.2d 310, 312. Because issues of negligence ordinarily involve questions of fact, they are generally not susceptible to summary judgment and are properly left for a determination by the trier of fact at trial. Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869. Therefore, only when reasonable minds could not differ may questions of fact be determined as a matter of law. Wiley, 272 Mont. at 216, 900 P.2d at 312.
¶7 The initial burden is on the moving party to demonstrate “a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that entitle the moving party to judgment as a matter of law and all reasonable inferences are to be drawn in favor of the party opposing summary judgment.” Kolar, 280 Mont. at 266, 929 P.2d at 869. Once the moving party meets this burden, the burden shifts to the non-moving party to establish otherwise. Wiley, 272 Mont. at 216, 900 P.2d at 312. We review a district court’s grant of summary judgment de novo, using the same criteria and evaluation as did the district court pursuant to Rule 56(c), M.R.Civ.P. Wiley, 272 Mont. at 216, 900 P.2d at 312.
DISCUSSION
¶8 Did the District Court err by granting Washington and Alpine summary judgment?
¶9 The District Court granted Washington and Alpine summary judgment stating that “[significant uncontrovert'ed evidence supports the theory that neither Defendant breached its standard of care.” The court explained:
Summary judgment in favor of both Washington and Alpine is appropriate. Both Defendants have brought forth credible evi dence that they met the applicable standard of care and that if they had a duty to warn, they met that duty. Schmidt cannot bring forth any material evidence in response because he has neither a highway [accident] reconstruction expert or a signage expert.
Additionally, the court also explained that Schmidt failed to introduce evidence disputing the location of warning signs on the temporary ramp as indicated by Alpine’s affidavit and logs.
¶ 10 Schmidt argues that several genuine issues of material fact exist, and, therefore, the District Court erred in granting Washington and Alpine summary judgment. First, Schmidt argues that a material question of fact exists regarding the placement of a “BUMP” warning sign as well as the placement of other traffic signs on the temporary ramp at the time of his accident, and, therefore, whether he was given adequate warning of the danger posed by the elevation differential. Schmidt asserts that Robert Johnson, a witness who worked as the project supervisor for the Montana Department of Transportation, executed two inconsistent affidavits concerning the location of a “BUMP” sign on the ramp. Additionally, he contends that Alpine’s discovery responses concerning the permanency of the “BUMP” sign were inconsistent with its own sign log book. Furthermore, Schmidt maintains that Alpine’s description of the placement of other traffic signs on the ramp differs from Johnson’s sketch depicting the placement of traffic signs on the ramp which he made while observing the accident site on August 22, 1995, the day after Schmidt’s accident.
¶11 Second, Schmidt argues that a material question of fact exists concerning whether Washington had notice of the unreasonably dangerous condition of the temporary ramp, and, consequently, whether Washington failed to properly maintain the ramp. Schmidt contends that evidence of three motorcycle accidents, other than his own, within a 72-hour period, raises a genuine issue of fact concerning Washington’s knowledge of the unreasonably dangerous condition of the temporary ramp. Furthermore, Schmidt asserts his lack of an accident reconstruction expert is harmless given that his two expert witnesses in motorcycle dynamics were prepared to testify as to the unique problems encountered by motorcycles crossing raised surfaces. Finally, he maintains that he did not need a signage expert to explain common sense ways of preventing accidents.
¶12 Washington and Alpine respond that the District Court properly granted summary judgment in their favor because no genuine is sues of material fact exist and they were entitled to summary judgment as a matter of law. First, Alpine argues that no factual dispute exists concerning the placement of the “BUMP” warning sign because Johnson’s second affidavit clarified his first affidavit. Furthermore, Alpine contends that even if the discrepancy raises a factual issue, it is immaterial. Alpine explains that due to Schmidt’s slow speed on the temporary ramp, even if the “BUMP” sign was placed only 200 feet from the interstate, as Johnson estimated in his first affidavit, this placement still satisfied the guidelines set forth in the Manual of Uniform Traffic Control Devices (MUTCD) and thereby satisfied its duty. Moreover, Alpine argues that the inconsistences between its discovery responses and its log book concerning whether the “BUMP” sign was permanent or temporary are immaterial to the question of the sign’s location on the ramp.
¶13 Relying on Wiley, Washington and Alpine also argue that summary judgment was proper because Schmidt failed to retain a highway signage expert or an expert in highway maintenance or construction to define their duty and testily as to its breach. Finally, conceding that they controlled the construction site and knew of the elevation differential on the ramp, Washington and Alpine argue that evidence of the other motorcycle accidents on the ramp is inadmissible because Schmidt offered it only to prove their negligence.
¶14 At the outset, we note that the parties analyze this negligence action, in part, by examining the duty of landowners. In their motions for summary judgment, Washington and Alpine argued that they were entitled to summary judgment under premises liability law. However, Schmidt responded that Washington and Alpine did not have a duty of a land owner or occupier, but rather had a duty to keep the roadway in a reasonably safe condition as set forth in Hatch v. State Dept. of Highways (1994), 269 Mont. 188, 887 P.2d 729. The District Court adopted Washington’s and Alpine’s argument that each had satisfied its duty of care and granted summary judgment in their favor. On appeal, Schmidt again argued that Washington and Alpine failed to keep the roadway in a reasonably safe condition while Washington and Alpine maintained that each had satisfied its duty of care under premises liability law. Thereafter, Washington and Alpine filed supplemental briefs reasserting that each had acted with due care under premises liability law as clarified in Richardson v. Corvallis Pub. School Dist. No. 1 (1997), 286 Mont. 309, 950 P.2d 748. Schmidt replied that, even under Richardson, Washington and Alpine had breached their duty of care.
¶15 Contrary to the parties’ arguments and the decision of the District Court, we point out that both Washington and Alpine had a duty of ordinary care in maintaining the road construction site in a reasonably safe condition. This duty is not one of a possessor of the premises as set forth in Richardson, and, consequently, Richardson is not dispositive. Rather, Washington and Alpine had a duty of acting as a reasonable, prudent person would under the circumstances. See Workman v. McIntrye Constr Co. (1980), 190 Mont. 5, 14, 617 P.2d 1281, 1286 (explaining that following directions and instructions given by the State, including the guidelines of the MUTCD, does not relieve a contractor from acting as a reasonable, prudent person under the circumstances).
¶16 In this regard, to determine whether Washington and Alpine acted with due care under the circumstances, the MUTCD is one factor, among many, to consider in this case. The State Highway Commission adopted the MUTCD in 1971. Brockie v. Omo Constr. Inc. (1992), 255 Mont. 495, 500-01, 844 P.2d 61, 65. Consequently, the MUTCD has “the force of law” and evidence of a violation of the MUTCD is admissible to show negligence. See Lynch v. Reed (1997), 284 Mont. 321, 328-29, 944 P.2d 218, 222-23 (interpreting the rule for admissibility of industry standards and codes as established in Rankle v. Burlington Northern (1980), 188 Mont. 286, 613 P.2d 982). See also Workman, 190 Mont. at 21, 617 P.2d at 1290 (the MUTCD is promulgated by the Montana Highway Department and may be considered a standard or norm to be used for traffic control devices) (quoting Runkle, 188 Mont. 286, 613 P.2d 982).
¶ 17 However, evidence of compliance with the MUTCD does not necessarily establish due care because the MUTCD, like any other national industry standard or code, is only a minimum standard. See Martel v. Montana Power Co. (1988), 231 Mont. 96, 104, 752 P.2d 140, 145 (explaining that defendant’s compliance with the National Electrical Safety Code did not establish due care). As we explained in Martel, “[i]f the circumstances are such that a danger exists beyond the minimum which this [standard or norm] was designed to meet, then the jury may be informed that a defendant is negligent for not doing more.” Martel, 231 Mont. at 104, 752 P.2d at 145. In the case at bar, questions of fact remain as to whether Washington and Alpine complied with the MUTCD, and even if they did, whether mere com pliance with the MUTCD equated with the exercise of due care, given the condition of the temporary ramp.
¶ 18 First, Schmidt argues that a material question of fact exists concerning the placement of the “BUMP” warning sign on the ramp, and, therefore, whether he was given adequate warning of the danger posed by the elevation differential. Schmidt points out that Johnson submitted two conflicting affidavits concerning the location of the “BUMP” warning sign on the temporary ramp. Johnson looked at the accident site on August 22, 1995, the day after Schmidt’s accident, and prepared a sketch of the ramp, not drawn to scale, which indicated the location of orange construction barrels on either side of the ramp, certain traffic signs and various potholes. In Johnson’s first affidavit, dated May 20, 1997, he stated that the “BUMP” sign was placed 200-300 feet before the ramp interfaced with the interstate; however, in his second affidavit, dated June 3, 1997, Johnson stated the “BUMP” sign was placed 500-600 feet before the ramp interfaced with the interstate.
¶19 In his second affidavit, Johnson explained that at the time he prepared his first affidavit, his estimate of the distances “were guesses based upon my general recollections of the situation nearly two years ago ...” Johnson further explained that after reviewing a number of documents pertaining to the project, including construction plans, as-built plans, his construction diary notes, copies of Washington’s project foreman’s daily diaries, and copies of Alpine’s traffic control notes, he believed “a more accurate distance is 500-600 feet from the ‘BUMP’ sign to the interface with Interstate 90[.]” The District Court, in a footnote to its June 10,1997 summary judgment order, ruled that “[t]o the extent that a jury issue may have existed on this point [the location of the ‘BUMP’ sign], it no longer exists as a result of the second Johnson affidavit.” We disagree.
¶20 [10] Johnson’s affidavits directly contradict each other concerning the placement of the “BUMP” warning sign on the temporary ramp. Where the “BUMP” sign was placed on the ramp and whether this placement complied with the guidelines of the MUTCD are both questions of material fact that contribute to the resolution of this case. See Bossard v. Johnson (1994), 265 Mont. 272, 278, 876 P.2d 627, 630. Generally, ambiguities and even conflicts in a deponent’s testimony are matters for the jury to sort out. Wood v. Old Trapper Taxi (1997), 286 Mont. 18, 30, 952 P.2d 1375, 1383 (citations omitted). Consequently, we hold that the District Court erred in finding that no ma terial questions of fact remained concerning the placement of the “BUMP” sign on the ramp.
¶21 Likewise, we agree with Schmidt that the inconsistencies in Alpine’s discovery responses with both its own sign log book as well as with Johnson’s August 22,1995 sketch of the ramp also support his argument that a genuine issue of material fact exists concerning whether he was adequately warned of the danger on the ramp in compliance with the MUTCD. Furthermore, and more importantly, we agree with Schmidt that a question of fact exists as to whether mere compliance with the MUTCD would be sufficient under the circumstances of this case to satisfy Washington’s and Alpine’s duty of ordinary care.
¶22 Washington and Alpine argue that our decision in Wiley established that expert testimony is required to avoid summary judgment in actions involving highway construction negligence claims. Relying on Wiley, Washington and Alpine argue that Schmidt is unable to satisfy his burden of raising a genuine issue of material fact as to this issue because he did not call a signage expert to testify as to their duty and what constitutes a breach of that duty. Additionally, Washington and Alpine argue that evidence of other motorcycle accidents is inadmissible because Schmidt only offered this evidence as proof of their negligence. Again, we disagree.
¶23 In Wiley, a pedestrian and her husband filed a negligence action against the Montana Department of Transportation and the City of Glendive to recover for injuries the pedestrian sustained when she slipped on a metal pullbox cover on a sidewalk in Glendive. After extensive discovery, defendants moved for summary judgment and supported their motion with affidavits of five experts. Plaintiffs opposed summary judgment, relying on their own expert’s deposition testimony to raise genuine issues of material fact concerning defendants’ negligence. Wiley, 272 Mont. at 215-16, 900 P.2d at 311-12. The district court granted defendants summary judgment and plaintiffs appealed. On appeal, plaintiffs argued that summary judgment was improper because factual issues remained concerning the dangerous, defective, and unsafe condition of the pullbox cover. Wiley, 272 Mont. at 216, 900 P.2d at 312. We affirmed the district court concluding that plaintiffs failed to raise any genuine issues of material fact because their expert acknowledged that he was unable to state an opinion concerning the alleged factual issues pertaining to the condition of the pullbox cover, and, therefore, “his testimony failed to establish either a standard of care or a breach of any standard of care.” Wiley, 272 Mont. at 218, 900 P.2d at 313-14.
¶24 Unlike in Wiley, Schmidt’s failure to produce a signage expert is not fatal in this case because the issue of Washington’s and Alpine’s negligence is not centered solely on whether Schmidt was warned of the “bump” where the gravel portion of the ramp interfaced with the paved interstate, in compliance with the MUTCD. Rather, the issue in this case turns on whether the 6- to 8-inch height differential between the gravel and the concrete lip was unreasonably dangerous in and of itself. In other words, the essential issue is whether Washington and Alpine knew or should have known that a 6- to 8-inch difference in height between the gravel and the concrete lip on the temporary ramp was unreasonably dangerous to motorcyclists and whether remedial measures should have been taken to eliminate or mitigate the danger.
¶25 In this regard, although Schmidt also did not list an accident reconstruction expert or a construction expert, as Washington and Alpine argue he should, Schmidt did list two motorcycle expert witnesses who were prepared to testify that the height differential was unreasonably dangerous to motorcyclists. Additionally, Schmidt submitted evidence of three other motorcycle accidents that occurred on the temporary ramp where the height differential existed within 72 hours of his own accident. Such testimony and evidence was sufficient to raise a genuine issue of material fact regarding whether Washington and Alpine were on “notice” of an unreasonably dangerous condition that required remediation and possibly warnings over and above those required by the MUTCD. Evidence of these other accidents, although inadmissible to prove negligence, was admissible to show the existence of a danger or defect and notice thereof. See Runkle, 188 Mont. at 292, 613 P.2d at 986.
¶26 Based on the foregoing, we conclude that reasonable minds could differ as to whether Washington and Alpine breached their duty of ordinary care thereby causing Schmidt’s motorcycle accident and subsequent damages. Therefore, because genuine issues of material fact exist, summary judgment is precluded in this case. Consequently, we hold that the District Court erred by granting Washington and Alpine summary judgment. Accordingly, we reverse and remand to the District Court for further proceedings consistent with this Opinion.
CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, REGNIER and GRAY concur.
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 This is an action for damages for the negligent destruction of a Burger King restaurant by fire. Five U’s, Incorporated, appeals from a summary judgment of the First Judicial District Court, Lewis and Clark County, in favor of defendants Burger King Corporation (BKC) and Burger King Operating Limited Partnership (BKOLP). We affirm.
¶2 The issues are:
¶3 1. Whether the District Court erred in granting summary judgment with respect to the claim for damages for the destruction of the restaurant building by fire; and
¶4 2. Whether the court erred in granting summary judgment with respect to the claim for damages for loss of rentals while the restaurant was being rebuilt.
¶5 Five U’s is a Montana corporation which owns the real property and building used as the Burger King restaurant in Helena, Montana. Five U’s leased the property and building to BKC, a Florida corporation. Their lease agreement required BKC to maintain fire and casualty insurance on the property. Under the agreement, Five U’s was required to rebuild in the event of fire or other casualty.
¶6 In February 1986, BKC assigned its interest in the lease to BKOLP. A franchisee, QSC, subleased the property and owned the restaurant equipment. Under the sublease, QSC assumed responsibility to insure the restaurant against fire and other casualties.
¶7 On June 26, 1992, a grease fire destroyed the Helena Burger King restaurant. Following the fire, QSC and Five U’s agreed to distribute the $408,500 in insurance proceeds first to Five U’s to allow it to rebuild, with the remaining balance to QSC to allow it to acquire new restaurant equipment. The restaurant reopened on December 12,1992.
¶8 Although the cost of rebuilding the restaurant was covered by the fire insurance, Five U’s nevertheless filed this tort action in June 1994 to recover the cost of removing and replacing the Burger King building and the rental income lost while the restaurant was being rebuilt. The District Court granted summary judgment in favor of BKC and BKOLP. The court also granted partial summary judgment in favor of QSC, leaving as the only issue for trial whether Five U’s was entitled to lost rentals from QSC. When Five U’s later agreed to dismiss QSC from the suit, summary judgment became final. Five U’s appeals.
Standard of Review
¶9 Under Rule 56(c), M.R.Civ.R, summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This Court uses de novo review to determine whether a trial court correctly granted summary judgment. Public Employees’Ass’n v. Dept. of Transp., 1998 MT 17, ¶8, 954 P.2d 21, ¶8.
Issue 1
¶ 10 Did the District Court err in granting summary judgment with respect to the claim for damages for the destruction of the restaurant building by fire?
¶11 The lease agreement between Five U’s and BKC required BKC, as the lessee, to keep the building insured “for the benefit of Lessor and Lessee” against loss or damage by fire. Under its sublease, QSC undertook this responsibility to provide fire insurance. The District Court ruled that the insurance proceeds paid to Five U’s from the policy purchased by QSC were paid on behalf of all of the defendants, due to the nature of their relationship. The court further ruled that having been fully compensated by insurance, Five U’s is not entitled, as a matter of law, to be compensated a second time for the same loss. The court stated, “Montana courts have consistently held that when a plaintiff has been fully compensated for his injury, he is not entitled to an additional damage award under any legal theory.” The court cited as authority for this principle Boyken v. Steele (1993), 256 Mont. 419, 847 P.2d 282, and State ex rel., Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396.
¶12 Five U’s contends that the District Court was in error because Boyken and Deere involved joint tortfeasors and limited their holdings to liability as between joint tortfeasors. The effect of insurance reimbursement under a contract obligation was not an issue in either case. Five U’s is correct that, in its statement quoted above, the District Court extended the holdings of Boyken and Deere.
¶13 In entering summary judgment, the District Court also cited Publix Theatres Corporation v. Powell (Tex. 1934), 71 S.W.2d 237, as persuasive authority. In that case, lessee Powell negligently caused a fire which destroyed lessor Publix Theatres Corporation’s building. After receiving payment from Powell’s insurance company for the market value of the building, Publix sued Powell for his negligence in allowing the building to catch on fire. The court rejected Publix’s contention that it should be allowed to recover from Powell despite having received full compensation from the insurance company. In its reasoning, the court stated:
When so destroyed, lessor’s loss was the value of the destroyed property — that was his interest in the insurance and when paid, of course, satisfied the loss, if the loss equalled or was less than the amount of insurance. To permit the lessor to keep the insurance money, in such a case, and then collect from the tenant, would be a double recovery not sanctioned by law. If the fire resulted from the tenant’s negligence, the tenant is liable for the result of that negligence, but, when he has provided for the resulting damages, either by payment himself or by payment through an insuring company, he has satisfied the claim of the damaged party.
Publix, 71 S.W.2d at 241. Like the building owner in Publix, Five U’s has been fully reimbursed for the cost of replacing the building destroyed in the fire.
¶14 Although Five U’s criticizes Publix as dated, the reasoning set forth therein remains sound. The Restatement (Second) of Torts § 920A(1)(1977), states, “A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to the same tort liability.” The first comment to this Restatement section explains:
Payments by or for defendant. If a tort defendant makes a payment toward his tort liability, it of course has the effect of reducing that liability. This is also true of payments made under an insurance policy that is maintained by the defendant, whether made under a liability provision or without regard to liability, as under a medical-payments clause. This is true also of a payment by another tortfeasor of an amount for which he is liable jointly with the defendant or even by one who is not actually liable to the plaintiff if he is seeking to extinguish or reduce the obligation.
Restatement (Second) of Torts § 920A(1), cmt. a (1977).
¶ 15 Five U’s asserts that comment a to § 920A does not apply to this case. Instead, it argues that comment b, concerning the collateral source rule, controls. That comment states:
Benefits from collateral sources. Payments made or benefits conferred by other sources are known as collateral-source benefits. They do not have the effect of reducing the recovery against the defendant. The injured party’s net loss may have been reduced correspondingly, and to the extent that the defendant is required to pay the total amount there may be a double compensation for a part of the plaintiff’s injury. But it is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor. If the plaintiff was himself responsible for the benefit, as by maintaining his own insurance or by making advantageous employment arrangements, the law allows him to keep it for himself.
Restatement (Second) of Torts § 920A, cmt. b (1977).
¶16 The collateral source rule states that benefits received by a plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer. Tribby v. Northwestern Bank of Great Falls (1985), 217 Mont. 196, 209, 704 P.2d 409, 417. Five U’s asserts that when the collateral source rule is correctly applied to the facts of this case, it should be allowed a double recovery. It reasons that payment under the fire insurance policy was not made toward anyone’s tort liability, but toward contract liability. Five U’s further alleges that it was “responsible for” the fire insurance “by making an advantageous lease arrangement whereby the franchisee ... paid the fire insurance premium as additional rent for the premises.”
¶17 In that allegation, Five U’s is totally off the mark. Five U’s was no more “responsible for” fire insurance on the Burger King restaurant property under this lease than it was for making rental payments to itself.
¶18 Moreover, payment for the insurance policy was not wholly independent of and collateral to BKC and BKOLP. QSC purchased fire insurance for the Burger King restaurant pursuant to its assumption of BKC’s duty to provide such insurance under the lease with Five U’s. Although Five U’s consented to BKC’s assignment of the lease to BKOLP and the sublease to QSC, Five U’s did not thereby release BKC from its lease obligations, including the purchase of fire insurance. If fire insurance was inadequate or lacking, Five U’s would assuredly have wanted to hold both BKC and its assignee BKOLP liable for breach of the lease provision requiring BKC to keep the building insured.
¶ 19 We conclude that the payment to Five U’s under insurance purchased by alleged cotortfeasor QSC should be credited against the tort liability of BKC and BKOLP. We therefore hold that the District Court did not err in granting summary judgment for BKC and BKOLP on the claim for damages for destruction of the Burger King restaurant by fire.
Issue 2
¶20 Did the court err in granting summary judgment with respect to the claim for damages for loss of rentals while the restaurant was being rebuilt?
¶21 The lease contract between Five U’s and BKC provided:
If during the term of this lease the building, improvements in or appurtenant to the demised premises shall be destroyed or damaged by fire, storm, lightning, earthquake or other casualty, rental shall abate in such proportion as use of the premises by Lessee has been destroyed, and Lessor shall restore premises to substantially the same condition as before damage as speedily as practical; whereupon, full rental shall commence.
Paragraph 12, Agreement to Build and Lease.
¶22 Five U’s argues that the measure of damages in this tort action is not limited by the terms of the lease contract. It cites Miller v. Fallon County (1986), 222 Mont. 214, 721 P.2d 342, for the proposition that a party cannot contractually exculpate itself from liability for willful or negligent violation of legal duties.
¶23 In Miller, the plaintiff had waived, in writing, all claims for liability of the company in whose vehicle she was subsequently injured while a passenger. This Court determined that the waiver agreement violated the policy of the law and therefore could not be relied upon. In other words, the contract was declared invalid as an illegal contract. In the present case, as the District Court noted, the contract does not seek to exculpate BKC from all liability for negligence; it simply includes a rent abatement clause for periods during which the building is rendered unusable. There is no provision which violates the policy of the law.
¶24 When the language of a legal contract is clear and unambiguous on its face, it is the duty of the courts to enforce the contract as the parties intended. First Sec. Bank v. Vander Pas (1991), 250 Mont. 148, 153, 818 P.2d 384, 387. Here, Paragraph 12 of the lease makes no distinction as to the cause of a fire, and therefore requires rent to abate regardless of whether the fire was caused by events unrelated to BKC or by BKC’s negligence. Five U’s may not circumvent the intent of the contract by suing BKC and BKOLP in negligence to recover rent for the period for which the lease clearly provided that rent was to abate.
¶25 We conclude that the lease should be enforced as written, abating rental payments when use of the premises has been destroyed. We hold that the District Court did not err in granting summary judgment to BKC and BKOLP with respect to the claim for damages for loss of rent payments while the restaurant was being rebuilt.
¶26 We affirm the decision of the District Court.
JUSTICES NELSON, REGNIER and GRAY concur.
JUSTICE LEAPHART did not participate.
|
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] |
JUSTICE HUNT
delivered the Opinion of the Court.
¶1 On October 29, 1996, Byron Dean Vickers and Patricia Elaine Vickers (collectively the Vickers) were each charged by information in the Seventh Judicial District Court, Dawson County, with felony theft and several counts of felony and misdemeanor drug-related offenses. By order of the District Court, the two actions were joined. On January 15,1997, the Vickers filed a motion to suppress evidence seized pursuant to two search warrants issued on October 12 and 14,1996, claiming that the substitute justice of the peace who issued the warrants, Mitzi Barney, was not duly authorized to act as substitute justice of the peace. On June 11,1997, the District Court issued its memorandum and order granting the Vickers’ motion to suppress. The State of Montana (the State) appealed. We affirm the order of the District Court.
¶2 The sole issue on appeal is whether Mitzi Barney was duly authorized to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA (1995), when she issued the October 12 and 14,1996 search warrants.
BACKGROUND
¶3 Robert A. Larsen (Judge Larsen) was the duly elected justice of the peace for Dawson County at all times pertinent to this action. Judge Larsen’s current term of office began in January 1995. Within thirty days after the commencement of his new term, Judge Larsen selected three persons, including Mitzi Barney (Barney), to serve as substitute justices of the peace in his absence. Although Judge Larsen did not memorialize his selections on a separate list as required by § 3-10-231(2), MCA, he submitted to the Commission on Courts of Limited Jurisdiction (Commission) written requests for waivers of training for the proposed substitutes in accordance with § 3-10-231(2), MCA, and Rule 5C, Commission Rules. The Commission approved the waiver of training for Barney on July 18,1995. On March 7, 1995, a written oath of office was administered to Barney pursuant to § 3-10-202(1) and -231(2), MCA. However, the oath administered to Barney did not exactly conform to the oath of office prescribed for judicial officers in Article III, Section 3 of the Montana Constitution, and § 3-10-202(1), MCA. The oath administered to Barney contained the same pledge to protect and defend the Constitutions of the United States and Montana, but omitted the pledge to “discharge the duties of my office with fidelity,” and replaced it with the pledge to “serve in the capacity of substitute Justice of the Peace or City Judge to the best of my abilities.”
¶4 On October 12,1996, Judge Larsen notified the Glendive Police Department dispatcher that he would be out of town October 12-14, 1996, and that either Wibaux County Justice of the Peace Bill Franks (Judge Franks), Prairie County Justice of the Peace Fran Fleckenstein (Judge Fleckenstein), or Mitzi Barney, could act as substitute justice of the peace in his absence. Judge Larsen did not call Judge Franks, Judge Fleckenstein, or Barney directly to request that they be substitute justices in his absence.
¶5 That same day, October 12,1996, Dawson County Sheriff’s Deputy Wally Peter (Deputy Peter) applied for a warrant to search the Vickers’ house for drug-related evidence and contraband. Deputy Pe ter first tried to contact Judge Franks without success. Deputy Peter then contacted Judge Fleckenstein. Judge Fleckenstein told Deputy Peter she had little experience with search warrant applications, and suggested that he call another justice of the peace with more experience in the area of search warrants. Deputy Peter then contacted Barney, who agreed to come to the courthouse to act as substitute justice of the peace. Barney reviewed Deputy Peter’s application and, finding probable cause to search, issued the search warrant.
¶6 Two days later, on October 14,1996, Deputy Peter applied for a second warrant to search the Vickers’ vehicles. For approval of the second warrant, Deputy Peter directly contacted Barney, without first trying to contact Judge Franks or Judge Fleckenstein. Barney reviewed the application and issued the second search warrant.
¶7 Execution of the two search warrants led to the seizure of five pounds of marijuana and methamphetamine, other drug-related contraband, and stolen property. The Vickers were each charged with several felony and misdemeanor drug offenses and felony theft. The Vickers filed a motion to suppress the evidence obtained during the two searches on the ground that Barney was not a duly authorized justice of the peace when she issued the search warrants.
¶8 The court granted the Vickers’ motion based on two procedural errors in securing the validity of the search warrants. First, the court found several procedural flaws in securing Barney’s authority to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and - 231, MCA, and Potter v. Dist. Ct. of 16th Jud. Dist. (1994), 266 Mont. 384, 391, 880 P.2d 1319, 1324. Second, the court found that Judge Larsen failed to use the proper method of calling in a substitute justice of the peace as prescribed by § 3-10-231, MCA, and Potter, 266 Mont. at 391, 880 P.2d at 1324. The court concluded that these procedural errors rendered the search warrants issued by Barney void ab initio. In reaching this conclusion, the court relied heavily on Potter. The court stated:
Action by substitute justices is strictly controlled .... The plain meaning interpretation of the statutes involved here is mandated, not merely directory.... The failure to have search warrants issued by a properly appointed, independent magistrate renders them void. While in the instant case, there was substantial compliance with the qualified requirements, it appears clear from the holding in Potter, supra, that only properly qualified persons may act as judges .... [T]he teachings oí Potter are clear: unless the statutory procedures and Commission Rules imparting judicial authority are faithfully honored, no such authority exists.... Judicial authority should not [sic] and is not easily given; “close enough” is an inappropriate and unacceptable standard. The authorization statute provides legitimacy to the court and justices, and serves to protect citizens’ rights. To meet these goals, the statute must be followed. (Citations omitted.)
DISCUSSION
¶9 Was Mitzi Barney duly authorized to act as substitute justice of the peace pursuant to §§ 3-10-202(1) and -231, MCA (1995), when she issued the October 12 and 14, 1996 search warrants?
¶10 This Court reviews a district court’s findings of fact regarding suppression hearing evidence to determine whether they are clearly erroneous. State v. Hermes (1995), 273 Mont. 446, 449, 904 P.2d 587, 588-89. A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the trial court misapprehended the effect of the evidence, or if this Court is left with a definite and firm conviction that the District Court made a mistake. Hermes, 273 Mont. at 449, 904 P.2d at 589. We review a district court’s conclusions of law de novo to ensure that the court’s interpretation of the law was correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶11 We note at the outset that the Montana Legislature enacted significant amendments to § 3-10-231, MCA, effective March 25, 1997. See 1997 Mont. Laws, Ch. 150. These amendments were enacted in response to Potter, where we raised concerns regarding the efficacy of the statutory qualification procedures for substitute justices of the peace. 1997 Mont. Laws, Ch. 150; Potter, 266 Mont. at 394-95, 880 P.2d at 1326-27 (Turnage, C.J., concurring). The amendments to § 3-10-231, MCA, went into effect after the events giving rise to this action occurred, but before the District Court issued its ruling. We have held that the canon of statutory construction which states that courts should apply the law in effect at the time it renders its decision applies only to the application of judicial decisions, not to the application of statutes, ordinances, or regulations. Porter v. Galarneau (1996), 275 Mont. 174, 184-85, 911 P.2d 1143, 1149-50 (holding that pursuant to § 1-2-109, MCA, a statute is not retroactive unless expressly so declared). Because no clause appears in the 1997 amend ments to § 3-10-231, MCA, making them retroactive, we must apply the pre-1997 version of § 3-10-231, MCA, to this case.
¶12 Montana law provides specific procedures for authorizing persons to act as a substitute justice of the peace. As of October, 1996, Montana law provided that before a person is legally qualified to serve as a substitute justice of the peace, the following criteria must be met:
1. Within 30 days of taking office, the elected justice of the peace must provide a list of persons qualified to act in the sitting justice’s absence when no other justice or city judge is available;
2. The persons listed must be of good moral character, and have community support, a sense of community standards, and a basic knowledge of court procedure;
3. The persons listed must receive a waiver of judicial training from the commission on courts of limited jurisdiction established by the Supreme Court; and
4. The persons listed must subscribe to the constitutional oath of office and file the oath with the county clerk.
Sections 3-10-231(2) and -202(1), MCA; Rule 5C, Commission Rules; Potter, 266 Mont. at 391, 880 P.2d at 1324.
¶ 13 Montana law also provides a particular procedure for calling in replacement justices. In Potter, we interpreted § 3-10-231(2), (3), and (4), MCA, to mean that a sitting justice of the peace must first attempt to call in another duly elected justice of the peace, if there is one readily available, or a city judge before calling in a substitute judge from the fist provided for in § 3-10-231, MCA. Potter, 266 Mont. at 391, 880 P.2d at 1324. Additionally, the law explicitly requires that the sitting justice of the peace make the call for a replacement. Section 3-10-231(3) and (4), MCA. If the sitting justice of the peace is unable to make the call for a replacement, then the county commissioners are authorized to make the call. Section 3-10-231(3) and (4), MCA.
¶ 14 The parties do not dispute that the second and third criteria of the authorization procedure for qualifying Barney to act as substitute justice of the peace were satisfied. The parties only dispute whether the first and fourth criteria of the authorization procedure were satisfied and whether the call-in procedure was satisfied.
¶ 15 The State argues that the authorization and call-in procedures outlined above were satisfied, and that Barney was vested with the authority to act as substitute justice of the peace when she issued the October 12 and 14, 1996 search warrants. Regarding the first crite rion of the authorization procedure, the State argues that Judge Larsen’s written requests for waivers of judicial training for his three selected persons together constitute a “list” of qualified substitutes as contemplated by § 3-10-231(2), MCA. The State argues that by submitting the written waiver requests, Judge Larsen substantially complied with § 3-10-231(2), MCA.
¶16 Regarding the fourth criterion of the authorization procedure, the State concedes that Barney’s oath was not the official oath, but argues that the variance between the two oaths is immaterial. The State argues that Barney’s oath was sufficient because it contained the same pledge of constitutional fealty and faithful service as the official oath. In addressing Judge Larsen’s error in filing Barney’s written oath with the clerk of justice court instead of the county clerk as required by § 3-10-202(1), MCA, the State argues that nothing in § 3-10-231, MCA, or Potter requires that a substitute justice’s oath be filed. The State argues alternatively that even if this Court decides that filing the oath is a prerequisite for authorizing substitute justices of the peace under § 3-10-231, MCA, or Potter, the filing of Barney’s oath with the clerk of justice court effected substantial compliance.
¶17 Regarding the call-in procedure, the State asserts that Judge Larsen’s notification to law enforcement of his absence, and his directive that they call either Judge Franks, Judge Fleckenstein, or Barney, satisfied the call-in procedure announced in Potter. The State provides no analysis for this assertion other than stating that under a substantial compliance analysis, whether Judge Larsen, the police dispatcher, or Deputy Peter made the call for a replacement judge is immaterial so long as the call was made at Judge Larsen’s directive.
¶18 A common thread within each of the State’s arguments is the substantial compliance argument. The State does not dispute the rule of Potter that one is vested with the authority to act as substitute justice of the peace only if all criteria of the authorization procedure are followed. Potter, 266 Mont. at 393, 880 P.2d at 1325. However, the State disputes the degree to which the criteria must be followed. The State contends that substantial compliance with §§ 3-10-202(1) and -231, MCA, is sufficient to vest one with the authority to act as substitute justice of the peace, and offers several arguments in support of its position.
¶19 First, the State argues that nowhere in Potter did this Court mandate a strict compliance test for evaluating whether one has met the authorization and call-in procedures of §§ 3-10-202(1) and -231, MCA. The State argues that the District Court erroneously pursued a “hyper technical” and overreaching interpretation of Potter, and, in so doing, supplied additional, more severe procedural requirements not mentioned in Potter. The State argues that because the District Court misinterpreted Potter, its reliance on Potter for the conclusion that Barney was not duly authorized to act as substitute justice of the peace was misplaced. Further, the State distinguishes Potter from the instant case, arguing that in Potter, the procedure used to authorize the substitute justice of the peace “was flawed in almost every respect,” thus, due to the extreme degree of non-compliance, there was no question that the authorization statute had been violated. Potter, 266 Mont. at 392, 880 P.2d 1324-25. The State argues that in the instant case, the procedure used to authorize Barney substantially complied with all criteria set forth in §§ 3-10-202(1) and -231, MCA. Because the two cases are distinguishable, the State argues that nothing in Potter precludes this Court from ruling that Barney met the authorization and call-in procedures specified in §§ 3-10-202(1) and -231, MCA.
¶20 Next, the State argues that although this Court in Potter implicitly characterized the § 3-10-231, MCA, authorization criteria as mandatory rather than directory, see Potter, 266 Mont. at 390-92, 880 P.2d 1323-24, such a characterization does not necessitate strict compliance with the statute. As support for this assertion, the State cites a multitude of cases involving jurisdictional issues where this Court has applied varying compliance standards. Compare Rambur v. Diehl Lumber Co. (1964), 143 Mont. 432, 433, 391 P.2d 1, 2 (referring to Art. VIII, Secs. 2, 3, and 15, Mont.Const. and RCM 1947, § 93-8003, the Court stated, “[T]he Legislature has enacted statutes providing how appeals may be taken and substantial compliance with these provisions is necessary to give this [Cjourt the right to exercise the jurisdiction granted.”) with State v. Ward (1994), 266 Mont. 424, 427, 880 P.2d 1343, 1345 (“This Court has consistently held that strict compliance with [§ 46-17-311, MCA, the statute governing appeals from justice or city court] is necessary to perfect an appeal.”). Additionally, the State cites several cases involving mandatory statutory provisions where this Court has held that the vesting of jurisdiction may be evaluated by a substantial compliance standard. See Gregory v. City of Forsyth (1980), 187 Mont. 132, 135, 609 P.2d 248, 250 (holding that “since the jurisdiction of a city to extend its boundaries is a special power, conferred by the legislature, substantial compliance with all the mandatory requirements of statutory law is essential”).
¶21 Lastly, the State argues that technical errors in the authorization and call-in procedures for substitute justices of the peace should not operate to suppress evidence. As support for its argument, the State cites United States v. Leon (1984), 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, wherein the United States Supreme Court faced the question of whether the exclusionary rule applied to evidence seized pursuant to a search warrant subsequently determined to be invalid for lack of probable cause, but which officers executed in reasonable, good-faith reliance on its validity. Leon, 468 U.S. at 900, 104 S.Ct. at 3409. The United States Supreme Court decided the question in the negative creating what has been termed the good-faith exception to the exclusionary rule. Leon, 468 U.S. at 922-25, 104 S.Ct. at 3420-22. The Court based its decision on several factors, including the absence of any remedial effect in applying the exclusionary rule under the facts of that case. The Court stated:
[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.
[T]o the extent that the [exclusionary] rule is thought to operate as a systemic deterrent on a wider audience, it clearly can have no such effect on individuals empowered to issue search warrants. Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions. The threat of exclusion thus cannot be expected significantly to deter them. Imposition of the exclusionary sanction is not necessary meaningfully to inform judicial officers of their errors ....
Leon, 468 U.S. at 917, 104 S.Ct. at 3417.
¶22 The State asserts that the instant case is analogous to Leon in that the invalidity of the warrant was due to flaws in its issuance, not to any flaw in its execution by law enforcement. The State urges this Court to apply the reasoning employed in Leon to the instant case and hold that because no remedial purpose would be served, the exclusionary rule does not work to invalidate a search warrant where the procedures used to secure the search warrant effected substantial compliance with the authorization statute.
¶23 We reject all of the State’s arguments relating to substantial compliance. First, the State’s reliance on Leon is misplaced. In Leon, the basic inquiry was whether the purpose of the exclusionary rule would be served in suppressing evidence seized pursuant to a search warrant issued by a judge who mistakenly thought that the warrant was supported by probable cause. Leon, 468 U.S. at 905-22, 104 S.Ct. at 3411-22. In contrast, the basic inquiry in the instant case is not whether the purposes of the exclusionary rule would be served by invalidating the search warrants, but whether Barney had the authority to issue the search warrants at all. See Potter, 266 Mont. at 392, 880 P.2d at 1325. We have held that failure to have search warrants issued by a properly appointed judge renders them void ab initio, of no force or effect. Potter, 266 Mont. at 393, 880 P.2d at 1325. If a search warrant is void ab initio, the inquiry stops and all other issues pertaining to the validity of the search warrant, such as whether the purpose of the exclusionary rule is served, are moot.
¶24 Second, the State’s argument that this Court has upheld the substantial compliance standard before to cases involving jurisdictional issues is unpersuasive. Not one of those cases involved the authorization and call-in requirements for substitute justices of the peace. Moreover, our review of those cases in which we stated “substantial compliance with these provisions is necessary,” or words similar in effect, reveals that we never articulated what exactly “substantial” compliance is. In many of those cases, the word “substantial” could have been replaced with “strict” with no change in the outcome of the case. See Rambur, 143 Mont. at 433, 391 P.2d at 2 (Court employed a substantial compliance analysis and dismissed an appeal from an order granting motion to dismiss on the ground that “R.C.M.1947, § 93-8003, specifies the orders from which an appeal may be taken and an order sustaining a motion to dismiss is not one of them.”).
¶25 The State urges this Court to hold that substantial compliance with the authorization and call-in procedures for substitute justices of the peace is sufficient. In Potter, we held:
Unless the procedures required by [§ 3-10-231, MCA] and the Commission Rules are followed, then no substitute justice is appointed, and the person seeking to exercise the powers of a judge as his substitute has no authority or jurisdiction to do so. That person is, quite simply, not a judge ....
Potter, 266 Mont. at 393, 880 P.2d at 1325. We determine that “follow” means follow in the plain meaning sense of the word. Clearly, the pro cedures for authorizing and calling in a substitute justice of the peace were not followed in the instant case.
¶26 The record shows that Judge Larsen failed to create a list of proposed substitutes as required by § 3-10-231, MCA. We do not agree with the State that submitting the written waiver request forms for proposed substitutes was functionally equivalent to creating a list. In construing § 3-10-231, MCA, we must give effect to all of its provisions and particulars. Section 1-2-101, MCA. Section 3-10-231, MCA, specifically requires the creation of a list in addition to the submission of requests for waivers of training. To give effect to both provisions, we hold that one is not the functional equivalent of the other.
¶27 Next, the constitutional oath of office was not properly administered to Barney. We do not believe that the pledge to “discharge the duties of my office with fidelity” is the same as the pledge to “serve in the capacity of substitute Justice of the Peace or City Judge to the best of my abilities.” We believe the complete omission of one pledge and replacement with another is a major discrepancy in the authorization procedure. Further, Barney’s oath of office was not filed with the county clerk pursuant to § 3-10-202(1), MCA. Again, we do not view filing the oath with the justice court clerk functionally equivalent to filing it with the county clerk. The State concedes that the statutory intent of filing is notice. Someone searching for a substitute’s oath would presumably inquire at the county clerk’s office because that is the place where it is required to be filed. We fail to see how the purpose of notice is served by filing the oath in a place where no one expects it to be filed.
¶28 Lastly, Judge Larsen’s notification to law enforcement of his absence, and bis directive that they call either Judge Franks, Judge Fleckenstein, or Barney, failed to satisfy the call-in procedure articulated in § 3-10-231, MCA, and Potter. If an elected justice of the peace is readily available, he or she must be called to act by the justice for whom the replacement is needed. Section 3-10-231(3) and (4), MCA; Potter, 266 Mont. at 391, 880 P.2d at 1324. Judge Larsen did not call and designate another justice of the peace to assume jurisdiction in his absence. Rather, Judge Larsen simply provided law enforcement with a “menu” of substitutes from which to choose. This procedure clearly violates § 3-10-231, MCA, and encourages “judge-shopping.” We cannot condone such a practice. Moreover, we have held that in finding a replacement judge, an elected justice of the peace or a city judge must be called before a substitute justice of the peace from the list provided for in § 3-10-231, MCA, is called. Potter, 266 Mont. at 391, 880 P.2d at 1324. In securing the October 14, 1996 search warrant, law enforcement made no attempt to call an elected justice of the peace before calling Barney. Again, this procedure clearly violates the rule announced in Potter.
¶29 We hold that the District Court’s finding that Barney was not a duly authorized justice of the peace when she issued the October 12 and 14,1996 search warrants was supported by substantial evidence and, therefore, was not clearly erroneous. We hold that the District Court correctly interpreted the law in concluding that Barney was not a duly authorized justice of the peace, and that the search warrants were void ab initio.
¶30 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER and REGNIER concur.
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 The State charged Defendant Tony Notti with one count of deliberate homicide. Notti moved to dismiss the charge, alleging that the State had violated his right to privacy. The District Court denied Notti’s motion to dismiss. Notti pled guilty to deliberate homicide, and appeals the District Court’s denial of his motion to dismiss. We affirm the District Court.
¶2 The issue on appeal is whether the State violated Notti’s right to privacy when it used a DNA profile obtained as a result of another unrelated criminal investigation as evidence against him in this proceeding.
BACKGROUND
¶3 On May 17, 2000, Mike Notti, the Defendant’s brother, reported to the Missoula Police Department that the Defendant had sexually assaulted him on the prior evening and had stolen his .25 caliber handgun. Police investigated Mike Notti’s complaint and collected physical evidence from his home, including samples believed to contain DNA evidence. Police submitted the physical evidence from the crime scene to the Montana Crime Lab to detect DNA evidence and to determine whether the victim was the source of the DNA evidence. It is unclear whether the Crime Lab initially performed the requested tests, but the Crime Lab did store the physical evidence from the sexual assault crime scene for later evaluation.
¶4 On May 20, 2000, Jefferson County police officers responded to a homicide report near a rest area along Interstate 90 near Butte, Montana, where they discovered the body of Robert Slawek. Near Slawek’s body, police discovered and collected six shell casings from a .25 caliber firearm, a hand-rolled cigarette butt, and a piece of cardboard from a .25 caliber ammunition box. Police performed an autopsy on Slawek’s body and confirmed that he had died as a result of gunshot wounds and identified eight wounds from a .25 caliber firearm. Police then sent the cigarette butt from the crime scene to the Montana Crime Lab for detection of DNA evidence and to determine whether the victim was the source of the DNA evidence. On August 24, 2000, the Crime Lab examined DNA obtained from the cigarette butt and blood drawn from Slawek, and confirmed that Slawek was not the source of the DNA. The Crime Lab then placed the “DNA profile” obtained from the cigarette butt into the State’s “forensic unknown” DNA database kept at the Crime Lab, and submitted the DNA profile from the cigarette butt to a manager of the Combined DNA Identification System (CODIS), a federal database which stores nationwide DNA profiles from certain convicted felons and unsolved crime scenes.
¶5 Meanwhile, in July 2000, Notti was arrested in Missoula County, Montana, pursuant to the sexual assault investigation. On September 8,2000, Missoula Police Detective Rich Oschner spoke with Notti and Notti’s attorney and requested that Notti consent to a blood draw that would be used to compare his DNA profile to the physical evidence stored at the Crime Lab. Notti discussed the matter with his attorney, and both agreed to permit Oschner to take a blood sample, which was done. The Montana Crime Lab analyzed Notti’s blood sample, and in a report dated November 17, 2000, confirmed that Tony Notti’s DNA profile matched the DNA profile of evidence obtained from the sexual assault crime scene, and Notti was later convicted of sexual intercourse without consent on February 7, 2001. In addition, the Crime Lab placed Notti’s DNA profile into its “suspect” DNA database, a database kept at the Crime Lab.
¶6 In April 2001, a student intern at the Crime Lab was assigned to compare profiles stored in the Crime Lab’s “suspect” database and “forensic unknown” database when the intern discovered a match between Notti’s DNA profile in the “suspect” database and the DNA profile from the cigarette butt placed in the “forensic unknown” database. The Crime Lab confirmed that the initial match was not an error, and informed the Jefferson County Sheriff’s Office and the Missoula Police Department of the profile match. Police further investigated Notti’s background and learned that Notti had been arrested on May 30, 2000, in Dane County, Wisconsin, for carrying a concealed .25 caliber handgun. Police in Dane County, Wisconsin, performed ballistics tests on the handgun at the Milwaukee Crime Lab, and on April 26,2001, after additional analysis, it was confirmed that the handgun confiscated in Wisconsin matched the weapon that had fired the six shell casings discovered near Slawek’s body.
¶7 Police interviewed Notti on May 2, 2001, regarding the homicide case, while Notti was in prison awaiting a sentence for the sexual assault case. At the interview, after being read a warning regarding his right against self-incrimination, Notti admitted that he had shot Slawek numerous times near a rest area on Interstate 90.
¶8 The State charged Notti with deliberate homicide on May 9,2001. On December 28,2001, the State requested that Notti produce another biological sample for DNA analysis, which the District Court granted. The Crime Lab confirmed that Notti’s DNA profile from the second sample matched the DNA profile of the DNA evidence recovered from the cigarette butt found near Slawek’s body.
¶9 On January 16,2002, Notti moved to dismiss the homicide charge, alleging that the State had illegally placed Notti’s DNA profile on the State’s “DNA Identification Index,” as established by § 44-6-102, MCA, and that all of the “fruits” from that illegal placement should be suppressed. After the parties briefed the issue, the District Court held a hearing on the issue on March 13, 2002, and orally denied Notti’s motion after argument. Notti changed his plea to guilty, and was sentenced to 80 years in prison on April 3, 2002. Notti appeals the District Court’s denial of his motion to dismiss.
STANDARD OF REVIEW
¶10 We review a district court’s decision regarding a motion to suppress to determine whether its findings of fact are clearly erroneous. State v. Reesman, 2000 MT 243, ¶ 18, 301 Mont. 408, ¶ 18, 10 P.3d 83, ¶ 18. We review a district court’s conclusions of law for correctness. Reesman, ¶ 18.
DISCUSSION
¶11 Did the State violate Notti’s right to privacy when it used a DNA profile obtained as a result of another unrelated criminal investigation as evidence against him in this proceeding?
¶12 The District Court denied Notti’s motion to dismiss, finding that Notti had, with advice of counsel, consented to the initial withdrawal of blood for DNA analysis. The District Court concluded that with Notti’s valid consent, there was no unlawful invasion of his privacy or any unreasonable search or seizure. In addition, the District Court concluded that pursuant to the “inevitable discovery” doctrine, that after Notti’s conviction in the sexual assault case, the State would have been able to make the DNA match anyway. For that reason as well, the District Court denied Notti’s motion to dismiss.
¶13 Notti contends that the District Court erred when it denied his motion to dismiss because he argues that the State had illegally placed his blood sample onto the State’s DNA Identification Index. Notti posits that the statute that establishes the State’s DNA Identification Index, § 44-6-102, MCA, provides only for the inclusion of DNA samples from convicted felons and crime scenes, and that the State should not have placed his DNA profile in the DNA Identification Index because he had not been convicted of any felony at the time the Crime Lab discovered the DNA profile match. Notti argues that the improper placement of his DNA profile led to all of the subsequently discovered evidence that the State seeks to use against him in the homicide trial, and that all of that evidence should have been suppressed by the District Court.
¶14 The State contends that Notti is mistaken in his claim that the State placed Notti’s DNA profile in the State’s DNA Identification Index, and points out that the Crime Lab only compared his DNA profile that was placed in the “suspect” database with the DNA profiles stored in the Crime Lab’s “forensic unknown” database. The State also argues that Notti’s blood sample and DNA profile were obtained after the consultation and consent of both Notti and his attorney, and that Notti waived any expectation of privacy in his blood sample or DNA profile. Last, the State reasserts that, under the doctrine of “inevitable discovery,” that the State would have discovered the profile match after Notti was sentenced for the felony rape conviction in March 2002 since the State DNA Identification Index requires that the State submit the DNA profiles of convicted felons, and that Notti’s DNA profile would have matched the DNA profile from the cigarette butt stored in the same database. Therefore, the State argues that the District Court was correct in denying Notti’s motion to dismiss since the “inevitable discovery” doctrine is a recognized exception to the general rule that district courts must exclude the “fruits” of an illegal search or seizure. See State v. New (1996), 276 Mont. 529, 536, 917 P.2d 919, 923.
¶15 It is well understood that Article II, Section 10, of the Montana Constitution protects a person’s right to privacy, and neither party disputes that a withdrawal of a blood sample would fit within the types of governmental intrusions that our state constitution protects against. Therefore, we must determine whether the State’s intrusion was unlawful. Previously, we held that when we consider whether a government’s intrusion is unlawful, that we will consider: “(1) whether the person has an actual expectation of privacy; (2) whether society is willing to recognize that expectation as objectively reasonable; and (3) the nature of the state’s intrusion.” State v. Therriault, 2000 MT 286, ¶ 33, 302 Mont. 189, ¶ 33, 14 P.3d 444, ¶ 33. However, where a defendant has voluntarily consented to a particular search, we have held that the defendant’s consent constitutes a waiver of any reasonable expectation of privacy with respect to the place searched, and that the permitted search is lawful. State v. Rodgers (1992), 257 Mont. 413, 419-20, 849 P.2d 1028, 1032.
¶16 In this case, the State provided a copy of Notti’s signed written consent, dated September 8, 2000, which authorized the initial blood draw that was used by the Crime Lab to create a DNA profile for the initial sexual assault investigation. Notti has not claimed that his consent was invalid or involuntary, nor has he claimed that the initial blood draw violated his right to privacy with respect to the sexual assault case. Rather, Notti implies that the police and Crime Lab exceeded the scope of his consent and acted illegally when the State allegedly placed his DNA profile in the DNA Identification Index and compared it to DNA profiles from evidence recovered at other crime scenes. Notti contends that the District Court should have suppressed the results of the allegedly illegal use of his DNA profile and all of the evidence obtained as “fruits” of that initial illegal act.
¶17 This case presents the question of whether Notti retained a privacy interest in his blood sample or the DNA profile produced by the Crime Lab after initially analyzing Notti’s blood sample. We have not previously addressed this issue, however, other jurisdictions that have considered the issue have agreed that a defendant’s privacy interest in blood samples or blood profiles is lost when the defendant consents to a blood draw or where it has been obtained through proper judicial proceedings. See People v. Baylor (Cal. 2002), 118 Cal.Rptr.2d 518, 521; Wilson v. State (Md. 2000), 752 A.2d 1250, 1272; Bickley v. State (Ga. 1997), 489 S.E.2d 167, 170; State v. King (N.Y. 1997), 232 A.D.2d 111, 117-18; Washington v. State (Fla. 1994), 653 So.2d 362, 364.
¶18 Two cases from other jurisdictions contain analagous circumstances and persuasive discussion on this issue. In King, a blood sample was taken from the defendant pursuant to a court order in a criminal proceeding, and that blood sample was later used as evidence against him in a subsequent unrelated criminal proceeding. The Appellate Division of the Supreme Court of New York upheld the use of the DNA profile in the subsequent case, stating:
[Ojnce a person’s blood sample has been obtained lawfully, he can no longer assert either privacy claims or unreasonable search and seizure arguments with respect to the use of that sample. Privacy concerns are no longer relevant once the sample has already lawfully been removed from the body, and the scientific analysis of a sample does not involve any further search and seizure of a defendant’s person. In this regard we note that the defendant could not plausibly assert any expectation of privacy with respect to the scientific analysis of a lawfully seized item of tangible property, such as a gun or a controlled substance. Although human blood, with its unique genetic properties, may initially be qualitatively different from such evidence, once constitutional concerns have been satisfied, a blood sample is not unlike other tangible property which can be subject to a battery of scientific tests.
King, 232 A.D.2d at 117-18. In another case, the Indiana Supreme Court upheld the practice of comparing a suspect’s court-ordered blood sample and DNA profile with other DNA profiles from unsolved crimes. Smith v. State (Ind. 2001), 744 N.E.2d 437. The Indiana Supreme Court held that keeping and using DNA profiles was not an unlawful invasion of the defendant’s privacy, and stated:
[The defendant] had a legitimate expectation of privacy in his body and blood samples at the time they were taken in the investigation of Case 1.... We agree that this includes the DNA residing in the cells of these samples. However, he does not challenge the original court order that authorized the seizure of these items. There has been no seizure or invasion of [the defendant’s] privacy since the initial samples taken in Case 1. His claim thus reduces to the contention that the information must be destroyed after the investigation that analyzed it is concluded, or at least cannot be used in a subsequent investigation. We agree with several courts that have held that, once DNA is used to create a profile, the profile becomes the property of the Crime Lab. Thus, [the Defendant] had no possessory or ownership interest in it.
Smith, 744 N.E.2d at 439 (citation omitted).
¶19 Although the circumstances in King and Smith are somewhat distinguishable to the extent that the blood samples and DNA profiles in those cases were obtained by court order rather than consent, we agree with the rationale provided by the New York and Indiana courts regarding the defendant’s expectation of privacy in the future use of DNA profiles by legal authorities. We conclude that Notti waived any reasonable expectation of privacy in the DNA profile created by the Crime Lab. After the initial withdrawal of blood, obtained pursuant to the initial sexual assault investigation, there was simply no subsequent search or seizure of Notti’s person such that Notti could invoke a privacy interest or right. Nor was there additional use or analysis of the blood specimen Notti had originally provided to State authorities. Rather, the State compared the numerical values that constitute Notti’s DNA profile with other DNA profiles in the State’s “forensic unknown” database when they discovered a DNA profile match between Notti’s DNA profile and the DNA profile obtained from the cigarette butt found near Slawek’s body. Notti has cited no authority to suggest that he retains a privacy interest in the work product of the Crime Lab, nor are we willing to create one as we have previously held that we will not consider legal arguments unsupported by authority. State ex rel. Booth v. Montana, 1998 MT 344, ¶ 35, 292 Mont. 371, ¶ 35, 972 P.2d 325, ¶ 35.
¶20 We also decline to consider Notti’s claim that his DNA profile was illegally stored in the State’s DNA Identification Index, as provided by §§ 44-6-101 to -110, MCA, as we find no evidence in the record to support Notti’s contention that this actually occurred. Notti has not cited to any evidence in the record to support a finding that the State had placed Notti’s DNA profile in the DNA Identification Index. Rather, the testimonial and documentary evidence suggests that, instead, the Crime Lab maintained a “suspect database” separate from the DNA Identification Index, and that comparisons of DNA profiles in the “suspect database” and the “forensic unknown database” led to the DNA profile match. Notti does not argue or provide any authority to suggest that the State may not maintain a separate “suspect database” for DNA profiles of suspects in ongoing investigations. In any event, even if the storage of these DNA profiles does raise issues with respect to a defendant’s right to privacy, we conclude that the District Court was nevertheless correct when it denied Notti’s motion to dismiss because of the “inevitable discovery” doctrine. In State v. Pearson (1985), 217 Mont. 363, 704 P.2d 1056, we held that evidence initially obtained illegally by the State may nevertheless be used against a defendant in a criminal proceeding where it can be shown that the evidence would have been inevitably discovered despite a constitutional violation. In this case, it is recognized that Notti was convicted of sexually assaulting his brother after trial in February 2001, and was sentenced in March 2002. Section 44-6-102(2), MCA, provides that: “[t]he DNA identification index must include: (a) DNA records for an individual convicted of a felony offense ....” Thus, Notti’s DNA profile would have been placed on the State’s DNA Identification Index and submitted to CODIS, which would have inevitably led to the discovery of a match by either a CODIS computer check or when another Crime Lab employee compared profiles in the “forensic unknown” database with the State’s DNA Identification Index. Therefore, we conclude that the District Court did not err when it denied Notti’s motion to dismiss on the basis of the allegation that the State had improperly placed Notti’s DNA profile in the State’s DNA Identification Index.
¶21 For the foregoing reasons, the decision of the District Court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES COTTER, LEAPHART and RICE concur.
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 The State appeals an Order of the Fourth Judicial District Court, Missoula County, granting the motion to suppress filed by Defendant Samuel B. Palmer (“Palmer”). We reverse.
¶2 We address the following issue on appeal:
¶3 Did the District Court err in granting Palmer’s motion to suppress?
BACKGROUND
¶4 On February 28, 2001, District Judge John W. Larson issued a search warrant for a Chevrolet school bus registered to Palmer. The search warrant application was based on a tip from an informant and video surveillance, among other information. Law enforcement executed the search warrant that same day. Based on the fruits of the search, the Missoula County Attorney filed an Information against Palmer charging him with two felonies and a misdemeanor: Count I: criminal possession of dangerous drugs with intent to distribute; Count II: possession of property subject to criminal forfeiture; and Count III: criminal possession of drug paraphernalia.
¶5 Palmer filed a motion to suppress, alleging the search warrant application (“Application”) did not establish probable cause. District Judge John S. Henson granted the motion to suppress. The State appeals the suppression.
STANDARD OF REVIEW
¶6 We review a district court’s grant of a motion to suppress “to determine whether the court’s findings of fact are clearly erroneous and whether its interpretation and application of the law are correct.” City of Cut Bank v. Bird, 2001 MT 296, ¶ 18, 307 Mont. 460, ¶ 18, 38 P.3d 804, ¶ 18.
DISCUSSION
¶7 Did the District Court err in granting Palmer’s motion to suppress?
¶8 Detective Scott R. Brodie (“Brodie”) of the Missoula Police Department applied for a search warrant for a 1975 Chevrolet school bus and a 1970 Suburban, both registered to Palmer. The Application states that the tip about Palmer first came from Joseph Vollstedt (‘Vollstedt”). On December 20, 2000, Brodie had executed a search warrant in Vollstedt’s home and found a large amount of marijuana and over $3700 in cash. Vollstedt was arrested and interviewed by the police. He admitted to the police that he sold marijuana in the Missoula area.
¶9 After spending a night in jail, Vollstedt agreed to cooperate with the police and act as a confidential informant, but would not allow them to record the information he gave them. Brodie later decided to name Vollstedt in the search warrant application because Vollstedt breached his agreement to cooperate with the police after his release from jail. Vollstedt told the police that “Sam” had sold marijuana to him. He did not know Sam’s last name or his street address, but told the police that Sam had sold marijuana from a multi-colored school bus parked in an alley near the intersection of South 6th West and some railroad tracks and a foot trail. Vollstedt believed Sam lived in the school bus.
¶10 Vollstedt also told the police that he had known Sam for about one and a half years and that he purchased marijuana from Sam on at least eight occasions. Vollstedt provided details about Sam’s operation, such as how much Sam charged for the marijuana, a description of the scale Sam used to measure the marijuana, and how Sam sorted the bills and locked the money in a safe. Vollstedt described Sam as being in his early twenties, approximately 6-feet tall, and weighing approximately 175 pounds with short blond hair. Vollstedt further informed the police that Sam drove an older blue Chevrolet Suburban.
¶11 Brodie corroborated Vollstedt’s tip by driving around the area described, looking for the bus. Brodie observed the bus as well as the Suburban, both of which were registered to Sam Palmer, in the area Vollstedt described. Brodie, along with Detective Dobie, attempted to farther corroborate Vollstedt’s tip by conducting periodic “drive-bys” of the bus and establishing video surveillance.
¶12 Further investigation revealed that Sam Palmer was not a registered tenant at the rental property behind which the bus was parked. Ernest Portis lived in the basement apartment and Timothy Foley and Javier Yocham lived upstairs. Brodie learned that Sam Palmer was a friend of Foley and Yocham, and they allowed Palmer to park his bus in their driveway. The detectives also obtained several loads of garbage that had been picked up from the residence.
¶13 The surveillance camera captured seven video tapes, each showing three days of activity at the rear door of the school bus. According to the search warrant application, the videos indicate that the bus is controlled by a subject who fits Palmer’s description. The subject arrived at the bus between 9:00 a.m. and 1:00 p.m. and left and returned to the bus several times a day, often in a blue Chevrolet Suburban. Visitors arrived periodically, knocked on the back door of the bus, and spent five to ten minutes inside the bus. The Application noted that no other houses in the neighborhood had as many vehicles visiting. One such vehicle the detectives observed in front of the house was registered to Teresa Franceschi, whose car was seen around the same time period parked in front of another house in which drugs were seized.
¶14 The Application also included a significant amount of information Brodie and Dobie obtained from the trash behind the house. The State concedes that some of the garbage evidence, namely the garbage with marijuana residue which was collected February 23, 2001, had no directly identifiable connection to Palmer and was not properly included in the search warrant application.
¶15 Judge Larson signed the Application on February 28, 2001, and it was executed the same day. Based upon the fruits of the search, Palmer was charged with two felonies and a misdemeanor: Count I: criminal possession of dangerous drugs with intent to distribute; Count II: possession of property subject to criminal forfeiture; and Count III: criminal possession of drug paraphernalia.
¶16 On October 24, 2001, Judge Henson granted Palmer’s motion to suppress. Judge Henson concluded that the informant, Vollstedt, lacked reliability, that time frames as to Vollstedt’s alleged purchases from Palmer were unclear, his information was not sufficiently corroborated, associations between Palmer and drug activity were tenuous, and evidence found in the trash could not be directly linked to Palmer. The State appeals the suppression of the evidence obtained during execution of the search warrant.
¶17 In State v. Reesman, 2000 MT 243, 301 Mont. 408, 10 P.3d 83, we set forth a step-by-step analysis for determining whether information given to the police by an informant is sufficient to establish probable cause. First, if the informant is anonymous, corroboration of the informant’s information through other sources is necessary. If the informant is not anonymous, we then ask whether the informant’s information is based on his or her personal observation of the described criminal activity. If the information is not based on personal observation, again, independent corroboration is required. Reesman, 2000 MT 243, ¶¶ 28-30, 301 Mont. 408, ¶¶ 28-30, 10 P.3d 83, ¶¶ 28-30.
¶18 Next, if the information is based on personal observations of a non-anonymous person, we must determine whether the informant is reliable. Three categories of informants exist for purposes of determining reliability: (1) confidential informants; (2) informants who make an admission against interest; and (3) concerned citizens. First, confidential informants are not deemed reliable unless the informant has given reliable and accurate information in the past. Without a sworn statement by a law officer that an informant has been reliable and provided accurate information in the past, independent corroboration is required. Second, if an informant makes an unequivocal admission against interest, further corroboration is not required. "[A]dmissions of crime, like admissions against proprietary interests, carry their own indicia of credibility - sufficient at least to support a finding of probable cause to search.” Reesman, 2000 MT 243, ¶ 33, 301 Mont. 408, ¶ 33, 10 P.3d 83, ¶ 33. Finally, informants motivated by "good citizenship” are deemed reliable if they provide information that demonstrates a sufficient degree of the nature of the circumstances under which the incriminating information became known. Reesman, 2000 MT 243, ¶¶ 31-39, 301 Mont. 408, ¶¶ 31-39, 10 P.3d 83, ¶¶ 31-39.
¶19 Here, it is undisputed that Vollstedt was not a "concerned citizen.” Palmer contends that Vollstedt was a confidential informant. Vollstedt provided the police with information about Palmer on the condition that he be treated as a confidential informant. Brodie used Vollstedt’s name in the search warrant application only after he voided his agreement to cooperate. Therefore, Palmer would have us treat Vollstedt as a confidential informant, requiring corroboration, despite the fact that Vollstedt’s identity was revealed in the search warrant application.
¶20 The State argues that Vollstedt provided the tip in the course of making an admission against interest, and thus no further corroboration is necessary. During Vollstedt’s interview with Brodie, Vollstedt admitted to eight separate purchases of marijuana from Palmer over an eighteen-month period. Four of the purchases had been for a quarter-pound of marijuana and four had been for a half-pound. Palmer argues Vollstedt did not give the tip in the course of making an admission against interest because he had admitted to his involvement in the distribution of marijuana in Missoula prior to naming “Sam” as his supplier. Palmer further argues that the time frames as to Vollstedt’s alleged purchases were unclear, and as such stale.
¶21 We need not decide whether Vollstedt should be treated as a confidential informant or as an informant who made an unequivocal admission against interest in the course of providing his tip. Regardless of how we assess Vollstedt’s reliability, the search warrant application demonstrated probable cause because it showed sufficient corroboration of Vollstedt’s tip. The video surveillance of the back of the school bus indicated a high volume of frequent and short-term traffic to and from the bus, which Brodie, based upon his training and experience as a narcotics detective, determined to be consistent with the distribution of illegal drugs.
¶22 The District Court essentially determined that the video surveillance revealed no actual criminal activity. While this determination may be accurate, it does not necessarily lead to the conclusion that probable cause did not exist. Corroborative evidence need not show actual criminal activity. In State v. Griggs, 2001 MT 211, ¶ 50, 306 Mont. 366, ¶ 50, 34 P.3d 101, ¶ 50, we stated that the “[N]eed for ‘adequate law enforcement investigation’ ... means that, when required, the subsequent corroboration of an informant’s tip must reveal indicia of human conduct that becomes suspicious when viewed in conjunction with the incriminating information received from the informant concerning a suspect’s particular criminal activity.”
¶23 Accordingly, we conclude that the search warrant application did show probable cause, and the District Court erred in granting the motion to suppress evidence obtained during execution of the search warrant. Reversed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER, LEAPHART and RICE concur.
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JUSTICE GRAY
delivered the Opinion of the Court.
¶ 1 Defendant Lori Compás (Compás) appeals from the judgment entered by the Sixth Judicial District Court, Park County, on its Findings of Fact, Conclusions of Law and Order convicting her of two counts of disorderly conduct and from its denial of her motion to dismiss the charges. We affirm.
¶2 We address the following restated issues:
¶3 1. Does sufficient evidence support the convictions?
¶4 2. Does § 45-8-101, MCA, as applied in this case, violate Compás’ free speech rights under the First Amendment to the United States Constitution?
¶5 Chan and Pam Libbey (the Libbeys) developed, own and operate the Yellowstone Edge RV Park (RV Park) located in the Paradise Valley of Montana. The RV Park is situated eighteen miles south of Livingston on land wedged between U.S. Highway 89 and the Yellowstone River. The Libbeys opened the RV Park in the summer of 1994, after complying with the required public hearing process and obtaining the necessary state and local permits.
¶6 Once the Libbeys started renting RV and camping spaces on the river, they began to experience repeated horn honking from vehicles traveling on the highway past the RV Park. The honking amounted to “someone just laying on the horn” the length of the RV Park. Several Park County residents described the RV Park as a scar on the Paradise Valley’s landscape and the newspaper in Livingston reported that the RV Park had become a “persistent source of controversy” due to its location on the Yellowstone River.
¶7 While in the campground office on the evening of May 6,1995, the Libbeys heard a loud, long horn honk consisting of three continuous blasts from a vehicle traveling north on Highway 89. Due to the ongoing horn honking problem, Chan left the RV Park in Pam’s car and pursued the vehicle from which the honking emanated. He followed the vehicle, a white Toyota extended cab pickup, until he was close enough to get the license plate number. He then passed the pickup and obtained a physical description of the driver, a male with long straight blond hair, and one passenger, a female with short hair. Chan then returned to the RV Park. Several RV Park guests asked Pam why someone was holding down his or her horn while passing the campground.
¶8 The next morning the Libbeys again heard three long horn honking “blasts” from a white Toyota pickup as it traveled south on the highway past the RV Park. Chan again followed the vehicle in Pam’s car and confirmed that it was the same Toyota pickup from the night before, driven by the same male; this time he was accompanied by two passengers, a male and a female. Chan identified the female passenger as the woman from the prior night’s horn honking incident. The RV Park guests complained about the horn honking noise. The Toyota’s description, its license plate number and the descriptions of the driver and passengers were provided to the Park County Sheriffs Office after each incident.
¶9 Compás subsequently was charged by complaint in the Park County Justice Court with two counts of disorderly conduct in violation of § 45-8-101(l)(b), MCA. The alleged factual basis for the charges was that she disturbed the peace, making loud or unusual noises, by blowing the Toyota’s horn while her friend drove past the RV Park on May 6 and 7,1995. Compás was convicted of both counts of disorderly conduct and appealed to the District Court.
¶ 10 At Compás’ de novo bench trial on May 5,1997, she admitted to the District Court that she frequently honked as she traveled past the RV Park and that she did, in fact, honk the Toyota’s horn on the dates in question. Compás testified that it was her “personal policy to honk every time [she] drove by the place” because she wanted to protest the RV Park and its location on the Yellowstone River. In Compás’ view, the RV Park was an eyesore which destroyed the view from the road and the river.
¶11 The District Court subsequently entered its Findings of Fact, Conclusions of Law and Order finding Compás guilty of two counts of disorderly conduct, making loud or unusual noises, in violation of § 45-8-101(l)(b), MCA. The court found that, while a passenger in a white Toyota pickup, Compás “reached over and honked the horn for three long, steady bursts as it traveled the length of the park... in protest of the placement and operation of the park” and that “by honking a horn for several seconds on May 6 and 7, 1995 ... [Compás] made loud and unusual noises.” It concluded that Compás “disturbed] the peace of the owners and guests of Yellowstone’s Edge RV Park.” Judgment was entered accordingly and Compás appeals.
¶12 1. Does sufficient evidence support the convictions?
¶13 We review the sufficiency of the evidence to support a criminal conviction to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Granby (1997), 283 Mont. 193, 199, 939 P.2d 1006, 1009 (citation omitted). The same standard applies to our review of judge-made findings relating to a criminal conviction as to jury-made findings. Granby, 283 Mont. at 199, 939 P.2d at 1010 (citation omitted).
¶14 Compás was convicted of committing the offense of disorderly conduct set forth in § 45-8-101(l)(b), MCA, by making loud or unusual noises. She correctly observes that two elements must be proved beyond a reasonable doubt to support a conviction under § 45-8-101(l)(b), MCA: (1) that she knowingly disturbed the peace; and (2) that she did so by making loud or unusual noises. Relying on State v. Ytterdahl (1986), 222 Mont. 258, 721 P.2d 757, Compás contends that insufficient evidence established the “disturbing the peace” element. Her reliance is misplaced.
¶15 The defendant in Ytterdahl was convicted of the offense of disorderly conduct under § 45-8-101(l)(g), MCA, by disturbing or disrupting any lawful assembly or public meeting. His conviction was based on his behavior at a county commissioners’ meeting relating to an easement action taken by the county on his property. Ytterdahl “hollered] and scream[ed] at the commissioners” and, after being informed that he could initiate a lawsuit regarding his complaint of trespass by the county, he “’mumbled a bad word,”’ got up, stomped out and slammed the door so hard that the glass in the room rattled.” Ytterdahl, 222 Mont. at 259-60, 721 P.2d at 758. We reversed Ytterdahl’s conviction, ultimately holding that the evidence failed to show that his acts were sufficient to constitute the offense of disorderly conduct under § 45-8-101(l)(g), MCA. Ytterdahl, 222 Mont. at 261-62, 721 P.2d at 759-60. In reaching that result, we held that “disturbing the peace is synonymous with breaching the peace[,]” which we defined — for purposes of § 45-8-101(l)(g),MCA — as tending to create public tumult, or to incite others to break the peace or to cause an immediate disturbance by others. Ytterdahl, 222 Mont. at 261, 721 P.2d at 759. In addition, we weighed Ytterdahl’s rights to protest an allegedly unlawful act of his government and to free speech against the state’s interest in preserving the peace and concluded that Ytterdahl’s actual conduct was not sufficient to constitute the charged offense of disorderly conduct. Ytterdahl, 222 Mont. at 262, 721 P.2d at 760.
¶16 Here, Compás contends that no evidence of record supports the District Court’s finding that her horn honking resulted in a breach of the peace as we defined that term in Ytterdahl. Compás fails to recognize, however, that our definitions of breach of the peace in Ytterdahl were in the context of an alleged violation of subsection (g) of § 45-8-101(1), MCA, disturbing or disrupting any lawful assembly or public meeting; indeed, we specifically stated that the definitions were applicable “[t]o establish a misdemeanor under Section 45-8-101(l)(g), MCA ...” As discussed above, Compás was charged, and convicted, under § 45-8-101(l)(b), MCA.
¶17 Moreover, we expressly limited application of Ytterdahl to disorderly conduct charges brought under § 45-8-101(l)(g), MCA, in State v. Lowery (1988), 233 Mont. 96, 98-99, 759 P.2d 158, 159-60. Like Compás, the defendant in Lowery was charged with disorderly conduct under a different subsection of § 45-8-101(1), MCA, than that at issue in Ytterdahl. See Lowery, 233 Mont. at 99, 759 P.2d at 160.
¶18 In this case, the District Court found that Compás’ horn blasts disturbed the Libbeys and the guests of the RV Park. It further found that the horn honkings caused an immediate disturbance to the Libbeys and their guests and thereby disturbed their peace. The record supports the court’s findings and, indeed, Compás does not argue otherwise.
¶ 19 When viewed in the light most favorable to the prosecution, any rational trier of fact could have found that Compás knowingly disturbed the peace by making loud or unusual noises. We hold, therefore, that sufficient evidence supports the District Court’s conviction of Compás of two counts of disorderly conduct.
¶20 2. Does § 45-8-101, MCA, as applied in this case, violate Compás’ free speech rights under the First Amendment to the United States Constitution?
¶21 Compás filed a pretrial motion to dismiss the disorderly conduct charges on the basis, in part, that her horn honking actions were protected speech under the First Amendment to the United States Constitution which could not be criminally sanctioned. The District Court orally denied the motion, concluding that Compás had not established an infringement of her free speech rights. Compás asserts error, contending that § 45-8-101, MCA, as applied in this case, violates her right to free speech.
¶22 A trial court’s decision to deny a motion to dismiss in a criminal case is a conclusion of law which we review de novo. State v. Cooney (1997), 284 Mont. 500, 502, 945 P.2d 891, 892 (citation omitted). Our review of a trial court’s determination on a question of constitutional law also is plenary. State v. Schnittgen (1996), 277 Mont. 291, 295, 922 P.2d 500, 503 (citation omitted).
¶23 Compás contends that her horn honking activities were “expressive conduct” which has long been recognized as protected speech under the United States Constitution. She cites to no authorities which support her position, however. To prevail on her “as applied” chai lenge to § 45-8-101, MCA, Compás must prove that her horn honking activities are constitutionally protected. See State v. Helfrich (1996), 277 Mont. 452, 458, 922 P.2d 1159, 1163. She has not done so with regard to her “expressive conduct” contention.
¶24 Nor is Compás’ reliance on Ytterdahl in this regard well placed. There, we emphasized that the defendant’s actions involved protesting to his government an allegedly unlawful act of his government. Ytterdahl, 222 Mont. at 262, 721 P.2d at 760. Compás’ conduct in the present case is of an entirely different type. She was not exercising her right to protest to her government and she was not protesting any allegedly unlawful act by her government or, indeed, by anyone. Thus, Ytterdahl does not support Compás’ position here.
¶25 The right to free speech is not absolute. City of Billings v. Batten (1985), 218 Mont. 64, 69, 705 P.2d 1120, 1124 (citation omitted). Indeed, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problems.” State v. Lance (1986), 222 Mont. 92, 102, 721 P.2d 1258, 1265 (citation omitted). One of those classes of speech not protected by the First Amendment is activity intended to embarrass, annoy or harass. Helfrich, 277 Mont. at 460, 922 P.2d at 1164 (citations omitted).
¶26 Here, Compás’ horn honking activities clearly annoyed and harassed the Libbeys and their guests at the RV Park and, on the face of it, could not have been intended otherwise. Thus, while Compás asserts that her intent was “to protest the location of the RV Park,” her actions did not constitute a protest to government of government acts which would be entitled to protection under the First Amendment. Moreover, under these circumstances, Compás’ “protest” — aimed at the Libbeys — had precisely the effect she intended: it disturbed their peace and that of their guests.
¶27 We conclude that the District Court correctly concluded that Compás did not establish a violation of her free speech rights. Therefore, we hold that the District Court did not err in denying Compás’ motion to dismiss the disorderly conduct charges.
¶28 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and LEAPHART concur.
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Appellant Laird Daniel Hendricks (Hendricks) appeals from the order entered by the Eighth Judicial District Court, Cascade County, revoking Hendricks’ suspended sentence for the offense of theft, a felony. We affirm.
¶2 The following issues are presented on appeal:
¶3 1. Whether Hendricks’ constitutional and statutory rights were violated when he was held for more than 72 hours without bond.
¶4 2. Whether the District Court erred in relying on hearsay testimony in determining that Hendricks violated the conditions of his probation.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 On June 27, 1996, Hendricks was charged by amended information with theft, a felony in violation of § 45-6-301, MCA (1995). Hendricks pled guilty to the charge and was sentenced on February 29, 2000, to a commitment of five years to the Department of Corrections, with all time suspended.
¶6 A petition for revocation of suspended sentence, with supporting affidavit and report of violation, was filed on June 18,2001. Probation and Parole Officer Michael Touchette (Touchette) alleged in his report that Hendricks had violated the conditions of his suspended sentence by failing to report to Touchette since April 27, 2001, and by faffing to keep Touchette informed of Hendricks’ whereabouts. Hendricks answered “not true” to the alleged violations at an answer hearing held on August 23, 2001. At that time, the District Court, in and for Cascade County, ordered Hendricks’ bail to remain at $10,000. On August 27, 2001, the District Court reduced Hendricks’ bail to $2,500 and authorized Hendricks’ release on bond. Hendricks posted the bond on September 2, 2001, and was released.
¶7 On September 5, 2001, Hendricks was arrested in Missoula County for driving with a revoked license, leaving a property damage accident, assault of a detention officer, and theft of the truck he was driving. Bond was set at $20,000. However, when appearing at the revocation hearing in Cascade County on October 31,2001, Hendricks asserted that a “no-bond hold” had been placed upon him by Touchette which prohibited Hendricks from posting bail and obtaining release from the Missoula County detention center. Neither the Cascade County Attorney nor the District Court had any knowledge about the no-bond hold, and no documentation of the hold was in the court file, or provided by Hendricks. A discussion ensued among the parties at the hearing, and the District Court then ordered that any no-bond hold be released. Hendricks asserted he had not appeared before a magistrate between September 5, 2001, and October 31, 2001.
¶8 No witness testimony was offered about the no-bond hold during the revocation hearing. Touchette testified, but neither the State nor Hendricks’ attorney asked Touchette any questions about the probation hold. Neither did Hendricks testify or produce any evidence regarding the probation hold. Hendricks did not move the District Court to dismiss the petition to revoke his suspended sentence or request the District Court to rule that the no-bond hold violated his constitutional rights.
¶9 At the conclusion of the hearing, the District Court revoked Hendricks’ suspended sentence and sentenced him to five years to the Department of Corrections with credit for time served. Hendricks now appeals.
DISCUSSION
¶10 Were Hendricks’ constitutional and statutory rights violated when he was held for more than 72 hours without bond?
¶11 Hendricks claims the he was denied his constitutional right to due process and his right against excessive bail when he was held on the probationary, no-bond hold for more than 72 hours. Section 46-23-1012(3), MCA, authorizes a detention center to hold a probationer without bail for 72 hours and states:
(3) A probation and parole officer may authorize a detention center to hold a probationer arrested under this section without bail for 72 hours. Within 72 hours following the probationer’s detention, the probation and parole officer shall:
(a) authorize the detention center to release the probationer;
(b) hold an intervention hearing pursuant to 46-23-1015; or
(c) arrange for the probationer to appear before a magistrate to set bail.
¶12 According to Hendricks, he was held on the no-bond hold from approximately September 5, 2001, to October 31, 2001, well over the 72-hour limit in § 46-23-1012(3), MCA. Hendricks asserts that Touchette failed to authorize the detention center to release him or arrange for his appearance before a magistrate to set bail, and consequently, his state and federal constitutional rights were violated, requiring reversal of his sentence revocation.
¶13 However, there is no factual record to support these allegations. The State properly counters that Hendricks waived his objection to the asserted violation of his constitutional rights by failing to make an objection during the hearing. Hendricks did not object to the continuation of the hearing or offer a motion to dismiss the proceedings. Relying on our holding in State v. Azure, 2002 MT 22, 308 Mont. 201, 41 P.3d 899, the State argues that Hendricks’ failure to adequately raise the issue in the District Court and create a factual record prohibits review of the issue on appeal.
¶14 It is well settled that we will not consider issues raised for the first time on appeal when the appellant has had an opportunity to make an objection in the trial court. State v. Peterson, 2002 MT 65, ¶ 21, 309 Mont. 199, ¶ 21, 44 P.3d 499, ¶ 21. “The reason for the rule is clear: if the defendant has an objection, there is an obligation to call the matter to the court’s attention so the trial judge will have an opportunity to remedy the situation.” State v. Cain (1986), 220 Mont. 509, 514-15, 717 P.2d 15, 19, citing Estelle v. Williams (1976), 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126. We have held that failure to object in the trial court proceedings constitutes a waiver of the objection, unless the circumstances come within one of the exceptions of § 46-20-701(2), MCA. Azure, ¶ 34. Here, Hendricks does not argue that any of those exceptions apply.
¶15 In Azure, the defendant asserted on appeal that his jury had been illegally impaneled. However, Azure had failed to raise an objection in the district court to the manner in which the jury was impaneled, leaving an inadequate record for review by this Court. Azure, ¶¶ 32, 38. We held that “this Court’s review of allegations on direct appeal is confined to the record,” Azure, ¶ 38, and concluded that “[bjecause we cannot determine from the record what procedure the clerk of court used in summoning the jury, we decline to review this issue further.” Azure, ¶ 39.
¶16 As in Azure, the facts from which we could reach a proper conclusion are not in the record before us because Hendricks did not make an appropriate objection before the District Court. Consequently, we cannot consider the merits of Hendricks’ due process argument.
¶17 Did the District Court err in relying on hearsay testimony in determining that Hendricks violated the conditions of his probation?
¶18 Hendricks claims that the State was required to produce witnesses who had observed his drug use firsthand, and could not rely on the hearsay statements of Touchette in the revocation hearing. In his brief, Hendricks’ counsel acknowledges that “there appears to be no legitimate legal grounds upon which to successfully argue this issue” but that he feels duty bound to give this Court notice of the issue, citing Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.
¶19 Hendricks did not object to Touchette’s testimony at the revocation hearing. “When the district court was not give an opportunity to rule on the admission of a statement or to correct itself if admission was not proper, ‘we will not put the trial court in error where it has not been given such a chance.’” Azure, ¶ 44, citing State v. Rodgers (1993), 257 Mont. 413, 419, 849 P.2d 1028, 1032. Therefore, we conclude Hendricks waived his right to an appellate review of this claim.
¶20 Accordingly, we affirm.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, NELSON and LEAPHART concur.
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] |
JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 The Appellant, James Earl, appeals from the judgment entered by the Twenty-Second Judicial District Court, Stillwater County, following his conviction on two counts of sexual assault. We affirm.
¶2 We address the following issues on appeal:
¶3 1. Did the District Court abuse its discretion when it denied Earl’s motion to continue filed three days prior to the jury trial?
¶4 2. Did the District Court properly instruct the jury?
¶5 3. Did the State present sufficient evidence for the jury to convict Earl of sexual assault against T.W. and A.W.?
¶6 4. Are Earl’s claims of ineffective assistance of counsel record-based and, therefore, subject to review on direct appeal?
BACKGROUND
¶7 On July 31, 2000, the State filed an Information charging Earl with two counts of sexual assault, both felonies, in violation of § 45-5-502, MCA. Count one alleged that Earl subjected T.W., a six year old girl, to sexual contact without consent during the month of November or December 1998. Count two alleged that Earl subjected A.W., a twelve year old girl, to sexual contact without consent some time between August 1, 1997, and March 31, 1998. Earl pled not guilty to both counts and the District Court set a jury trial for December 20, 2000.
¶8 Prior to trial, Earl moved the court to continue the matter and waived his right to a speedy trial. The District Court granted Earl’s motion and set a new trial date for April 24, 2001. On April 17, 2001, Earl again moved the District Court to continue the matter. The District Court granted Earl’s second motion to continue and reset the trial for May 14, 2001. On May 11, 2001, Earl filed a third motion to continue. The District Court granted Earl’s motion and later rescheduled the trial for January 28, 2002.
¶9 On January 25,2002, Earl filed a Motion to Dismiss or Continue. Earl argued that the State violated the omnibus hearing order in that it “has not produced the Statements of ANY witnesses let alone their witnesses in chief.” On the morning of trial the District Court denied Earl’s motion and the case proceeded to trial. At the close of the State’s case-in-chief, Earl moved the court for a directed verdict. The District Court denied Earl’s motion. On January 29, 2002, the jury found Earl guilty of both counts of sexual assault. Following a sentencing hearing, the District Court sentenced Earl to twenty years in the Montana State Prison on count one and ten years in the Montana State Prison on count two. The court ordered the sentences to run consecutively. On June 14,2002, Earl filed a Notice of Appeal from the court’s judgment.
DISCUSSION
ISSUE ONE
¶10 Did the District Court abuse its discretion when it denied Earl’s motion to continue filed three days prior to the jury trial?
¶11 In March 1999, Undersheriff Dan Ames contacted and interviewed several people with regard to the alleged sexual assaults on T.W. and A.W. During the course of his investigation, Ames elicited statements from various witnesses. On January 25, 2002, three days prior to trial, Earl learned of the existence of the witness statements and discovered that he did not have copies of the statements. Therefore, Earl moved the court to continue the trial to give him additional time to investigate the content of the statements.
¶12 In his motion, Earl argued that the court’s prior omnibus order obligated the State to provide Earl with the names, addresses, and statements of all of its witnesses. He maintained that the State failed to convey the statements justifying dismissal of the charges or, at the very least, a continuance. On appeal, Earl argues that his trial counsel was left with only three days to consider and react to the statements’ content. Earl asserts that the “interests of justice” justified a continuance and, now, compel reversal of the District Court’s denial of his motion.
¶13 A ruling on a motion to continue is subject to the district court’s discretion. State v. Borchert (1997), 281 Mont. 320, 324, 934 P.2d 170, 173. We review discretionary district court rulings to determine whether the court abused its discretion. Borchert, 281 Mont3. at 324, 934 P.2d at 173.
¶14 Section 46-13-202, MCA, provides:
Motion for continuance. (1) The defendant or the prosecutor may move for a continuance. If the motion is made more than 30 days after arraignment or at any time after trial has begun, the court may require that it be supported by affidavit.
(2) The court may upon the motion of either party or upon the court’s own motion order a continuance if the interests of justice so require.
(3) All motions for continuance are addressed to the discretion of the trial court and must be considered in the light of the diligence shown on the part of the movant. This section must he construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.
¶15 On the morning of trial, the District Court entertained oral argument on Earl’s motion to continue. The State notified the court that: this is not a case where the State rejected the defense’s request for a document; it had a transmittal letter dated May 19, 2000, indicating that the State sent a copy of Ames’ report to Earl; “for quite some time” prior to trial Earl had in his possession a psychosexual evaluation, conducted in March 2001, which referenced the witness statements; it maintains an open file policy which would have permitted Earl to copy the statements at any time throughout the pendency of the charges; and it faxed the statements to Earl on January 25, 2002. Based on this information, the Stillwater County Attorney concluded, “it’s my belief that he had it all, but even if he didn’t have it, I think it was incumbent upon the defendant to come in and check and make sure he had everything we had in our file.”
¶16 Earl acknowledged the State’s open file policy but, nevertheless, “assumed that all of the documents had been sent.” Earl’s trial counsel conceded that “the Court’s admonition to me on Friday that I maybe ought to have looked a little closer is well-taken.” Further, Earl’s trial counsel claimed that he never received the May 19, 2000, transmittal letter or accompanying documents.
¶17 Following the parties’ arguments, the District Court concluded:
Based on arguments of counsel, it’s clear to the Court that the Stillwater County Attorney’s Office does have an open file policy. Wherein, the defendant can, as I understand it, come and review all of the evidence that’s in the State’s file and make such copies and reproductions of the materials in that file as the defendant deems warranted.
Furthermore, the Court is very aware that this case has gone on for almost two years .... And there has been an abundance of time for counsel to make such discovery as counsel needs to make.
Also, the omnibus hearing order provides that if discovery is not made, that a motion can be brought to the Court to compel such discovery as may be necessary. Clearly, to make such motion the Friday before the Monday of trial is not a timely motion in the Court’s view.
Further, I would, for the record, state that the statute says that, “The State shall make available to the defendant for examination and reproduction ... the materials which the defendant has referred [sic].” And clearly, based on what’s before the Court here, the State has discharged its statutory obligation. For those reasons, the motion is denied.
¶18 In addressing Earl’s motion to continue, the District Court was to consider “the interests of justice” and “the diligence shown by the movant.” The record suggests something other than a diligent effort on the part of Earl’s trial counsel to obtain the requisite information. Further, Earl has not presented a compelling argument that the “interests of justice” mandated a continuance. For these reasons, we hold that the District Court did not abuse its discretion when it denied Earl’s fourth motion to continue.
ISSUE TWO
¶19 Did the District Court properly instruct the jury?
¶20 Upon settling jury instructions, the State offered sixteen instructions. Earl objected to only one instruction, instruction number twelve which defined “sexual contact.” Initially, Earl offered only one instruction. However, Earl withdrew the instruction following the court’s decision to utilize instruction number twelve over Earl’s objection.
¶21 On appeal, Earl states that the District Court erred when it failed to: instruct the jury on the elements of sexual assault; instruct the jury about a factor which would increase the maximum statutory penalty; and properly instruct the jury on the definitions of “sexual contact,” “without consent,” and “knowingly.” Earl concedes that his trial counsel objected to the “sexual contact” instruction only. However, Earl insists that we should address all of the allegedly erroneous instructions pursuant to the common law plain error doctrine.
¶22 In criminal cases, jury instructions must be reviewed as a whole, and if they fully and fairly present the law to the jury, the jury has been properly instructed. State v. Detonancour, 2001 MT 213, ¶ 57, 306 Mont. 389, ¶ 57, 34 P.3d 487, ¶ 57. The test to be applied is whether, when an instruction is considered as a part of the whole body of instructions, the instruction is prejudicial to the appealing party. Detonancour, ¶ 57.
¶23 Section 46-16-410(3), MCA, provides that “[a] party may not assign as error any portion of the instructions or omission from the instructions unless an objection was made specifically stating the matter objected to, and the grounds for the objection, at the settlement of instructions.” Generally, an appellant must establish that an objection was made at trial on the same basis as the error asserted on appeal. State v. Davis, 2000 MT 199, ¶ 38, 300 Mont. 458, ¶ 38, 5 P.3d 547, ¶ 38. Requiring a defendant to specifically raise the objection at trial gives the prosecution and trial court an opportunity to avoid or correct the purported error. Davis, ¶ 38. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in § 46-20-701(2), MCA. Section 46-20-104(2), MCA.
¶24 With respect to the jury instructions, four out of five of Earl’s assignments of error have been raised for the first time on appeal. Earl does not assert that we should consider his untimely objections pursuant to § 46-20-701(2), MCA. Instead, Earl submits that we should entertain his assignments of error pursuant to the common law plain error doctrine.
¶25 We have stated our standard of review for plain error as follows:
[T]his Court may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.
State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, overruled on other grounds by State v. Gallagher, 2001 MT 39, 304 Mont. 215, 19 P.3d 817. The plain error doctrine is to be employed sparingly, on a case-by-case basis, pursuant to the narrow circumstances articulated in Finley. Finley, 276 Mont. at 138, 915 P.2d at 215. Plain error review should not act as “a prophylactic for careless counsel.” State v. Price, 2002 MT 284, ¶ 23, 312 Mont. 458, ¶ 23, 59 P.3d 1122, ¶ 23.
¶26 Based on our review of the record and the arguments presented, we do not believe that failing to review the four previously unraised objections will result in a manifest miscarriage of justice, leave unsettled the question of fundamental fairness of the trial, or compromise the integrity of the judicial process. Since we decline to invoke our discretionary plain error review and since Earl did not lodge an objection to four of the five assignments of error at trial, Earl did not preserve those issues for our consideration on appeal. Earl did object to the “sexual contact” instruction at trial. Therefore, we will proceed to analyze the validity of that instruction.
¶27 The District Court utilized Montana Criminal Jury Instruction 2- 107 (1999) in instructing the jury on the definition of “sexual contact.” That instruction provides:
“Sexual contact” means the touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely arouse or gratify the sexual response or desire of either party.
The comment to the above instruction states that “[t]he definition in this instruction only applies to offenses committed on or after October 1, 1999.”
¶28 Prior to October 1,1999, the Legislature defined “sexual contact” as “any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.” See § 45-2-101(65), MCA (1997). As the 1997 definition does not contain the “directly or through clothing” language and as Earl committed the alleged offenses prior to October 1, 1999, Earl argues that “the amended definition of ‘sexual contact’ did not apply to the facts of this case, and, therefore, the jury was improperly instructed upon the definition of‘sexual contact.’ ”
¶29 In State v. Olson (1997), 286 Mont. 364, 951 P.2d 571, the defendant argued that the prosecution did not prove its sexual assault charge beyond a reasonable doubt, in part, because the victim had clothing on at the time of the alleged sexual contact. We rejected this argument, stating “Olson did not have to have direct contact with T.H.’s vaginal area underneath her clothing to have sexual contact with her. His rubbing T.H.’s vaginal area on the outside of her clothing was sufficient evidence to prove sexual contact.” Olson, 286 Mont. at 374, 951 P.2d at 577 (citation omitted).
¶30 Upon objection to the State’s “sexual contact” instruction, the court and Earl’s trial counsel engaged in the following colloquy:
Court: Well, Mr. Johnson, what would be wrong with such an instruction in light of State versus Olson ...?
Mr. Johnson: Well, Your Honor, in State versus Olson, they’re talking about...
Court: It seems to be the same kind of conduct alleged here. And I don’t know how-
Mr. Johnson: I will at this point concede that, Your Honor.
Court: I’m going to give Plaintiffs Offered Instruction No. 12 because I believe it’s a correct statement of the law of Montana.
We conclude that, pursuant to Olson, the “sexual contact” instruction given to the jury accurately represented the law. Therefore, the jury was properly instructed.
ISSUE THREE
¶31 Did the State present sufficient evidence for the jury to convict Earl of sexual assault against T.W. and A.W.?
¶32 For various reasons Earl contends that the evidence was insufficient to establish that he had “sexual contact” with T.W. and A.W. We review the sufficiency of evidence to support a conviction by viewing the evidence in a light most favorable to the prosecution and then determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Haser, 2001 MT 6, ¶ 18, 304 Mont. 63, ¶ 18, 20 P.3d 100, ¶ 18.
¶33 Section 45-5-502(1), MCA, provides that “[a] person who knowingly subjects another person to any sexual contact without consent commits the offense of sexual assault.” As indicated above, the court instructed the jury that “sexual contact” meant “the touching of the sexual or other intimate parts of the person of another, directly or through clothing, in order to knowingly or purposely arouse or gratify the sexual response or desire of either party.”
¶34 With regard to T.W., Ames testified as follows:
[Earl] also admitted that he’s touched her in the crotch area before, but it wasn’t-I think he phrased it, “in that sort of manner.” Then he said several times during the interview that he never touched her skin-to-skin. Also, during the interview he made a comment something like that it’s a shame that he liked a 6-year-old more than he did his wife.
Further, T.W. testified to the following:
Q: Can you tell us-what did you tell the undersheriff when you talked to him, do you remember?
A: Well, that [Earl] molested me.
Q: Now, do you remember an incident when you were watched by Mr. Earl?
A: Uh-huh.
Q: And so what happened with that incident?
A: I’m not sure, but he just started ... touching me.
Q: When you say he started to touch you, do you know what area of your body he did touch you?
A: (Witness nods.)
Q: And where would that be? [T. W.], would it be easier to show us instead of saying it?
A: No. Down below the waist.
Q: And so how did that make you feel?
A: Uncomfortable, very uncomfortable.
Q: Did you say anything to him then?
A: I told him to stop.
Q: And what did he do?
A: He stopped it, but it kept going on. After a few days, he started to do it again.
Q: Now, did he say anything about whether or not you should tell anybody?
A: He told me not to tell anyone.
¶35 As for the alleged sexual assault on A.W., A.W. testified that on one particular evening when she was thirteen Earl bought a bottle of alcohol for her and Earl’s girlfriend, Lynette. After consuming the alcohol, Earl, Lynette, and A.W. all laid down on a bed. Then, according to A.W., they “were all laying on the bed, next thing you know I felt a hand going down my pants and I kind of rolled over and it happened again.... I rolled off the bed to get away from him.” Earl testified on his own behalf at trial and denied T.W. and A.W.’s accounts of the events.
¶36 As we stated above, the standard of review for challenges to the sufficiency of evidence supporting a conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard “gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” State v. Brown (1989), 239 Mont. 453, 457, 781 P.2d 281, 284. Based on a review of the foregoing testimony, in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found that the State proved the essential elements of the crimes beyond a reasonable doubt.
ISSUE FOUR
¶37 Are Earl’s claims of ineffective assistance of counsel record-based and, therefore, subject to review on direct appeal?
¶38 Earl argues that the assistance he received from his trial counsel “fell short of the range of competence required of attorneys in criminal cases.” Earl cites fifteen instances where the actions or inactions of his trial counsel evince the purportedly ineffective representation. To more efficiently address Earl’s allegations, we have recharacterized the ineffective assistance claims and divided them into two categories: (1) inadequate investigation, failure to prepare a defense, lack of familiarity with the law, failure to inform Earl of his rights and options, inadequate jury instructions, and inadequate voir dire; and (2) failure to object to witness testimony, inadequate opening statement, and inadequate cross examinations.
¶39 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 and that the deficient performance prejudiced the defense. See Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10 (citations omitted). Before we will address the merits of ineffective assistance claims, we must determine whether the claims are properly before the Court or whether they are procedurally barred. Where ineffective assistance claims are based on facts of record they must be raised on direct appeal. State v. White, 2001 MT 149, ¶ 12, 306 Mont. 58, ¶ 12, 30 P.3d 340, ¶ 12. Conversely, where the ineffective assistance allegations cannot be documented from the record, the claims must be raised by petition for postconviction relief. White, ¶ 12.
¶40 In White, we stated that “[a]s for those clearly non-record based areas of representation, this Court has identified counsel’s failure to adequately investigate, or failure to prepare a defense, or failure to familiarize him or herself with critical areas of the applicable law.” White, ¶ 18. Further, we concluded that “the failure to fully inform a defendant of the consequences of his various options and rights may constitute a non-record ineffective assistance claim-although the prejudicial results of the ineffectiveness appear on the record.” White, ¶ 18. We also stated that the “failure of counsel to offer a particular jury instruction, generally, will be a non-record matter as well.” White, ¶ 19. Finally, we recently concluded that “[t]he reasons for counsel’s actions or inactions [during voir dire] should not be ‘assumed’ but should be the subject of a postconviction evidentiary inquiry.” State v. Herrman, 2003 MT 149, ¶ 30, 316 Mont. 198, ¶ 30, 70 P.3d 738, ¶ 30. Based on the foregoing, all of Earl’s ineffective assistance claims which we have assigned to the first category are non-record based claims and, therefore, are not properly before us on direct appeal. We now turn to the second category of ineffective assistance claims.
¶41 Generally, an alleged failure to object to witness testimony constitutes a record-based action and, therefore, appropriate for direct appeal. White, ¶ 15. Alternatively, decisions regarding the timing and number of objections lie within counsel's tactical discretion and, thus, should not be considered on direct appeal. White, ¶ 16. Rendering an improper opening statement or closing argument may qualify as a record-based instance of ineffective assistance. White, ¶ 17. However, we have also stated:
Though not easily distilled into a formula, the definitive question that distinguishes and decides which actions are record and which are non-record, is why ? In other words, if counsel fails to object to the admission of evidence, or fails to offer an opening statement, does the record fully explain why counsel took the particular course of action? If not, then the matter is best-suited for postconviction proceedings which permit a further inquiry into whether the particular representation was ineffective. Only when the record will fully explain why counsel took, or failed to take, action in providing a defense for the accused may this Court review the matter on direct appeal.
White, ¶ 20.
¶42 As for the second category of ineffective assistance of counsel claims, we conclude that the record simply does not explain why Earl’s trial counsel undertook the allegedly insufficient actions. That is, the record does not indicate why Earl’s trial counsel: presented a brief opening statement to the jury, cross examined A.W. and Lynette the way he did, and did not object to certain expert and lay witness testimony. Accordingly, we hold that the second category of ineffective assistance claims are non-record based and, therefore, cannot be reviewed on direct appeal.
¶43 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART, COTTER and RICE concur.
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Robert W. Olson appeals a judgment of the District Court for the Eighteenth Judicial District, Gallatin County, quieting title of the property in question to James R. Jude, Sallye Jude, Big Horn Properties, L.P., and Christopher Jude (collectively, “the Judes”). We affirm.
¶2 While Olson raised a number of issues on appeal, we have consolidated them into the following three issues:
¶3 1. Whether the District Court correctly determined that the Big Horn Tract’s northern boundary is along the east-west quarter section line of Section 32.
¶4 2. Whether the District Court correctly awarded the relief sought by the Judes.
¶5 3. Whether the District Court correctly denied the relief sought by Olson.
¶6 Because we affirm on Issues 1 and 2, we do not address Issue 3.
Factual and Procedural Background
¶7 On October 27, 1995, Boyne USA, Inc., filed a complaint against James and Sallye Jude seeking to quiet title to the property known as Tract 1, Certificate of Survey 1898 (COS 1898), located in the NE Vi of the SE Vi of Section 32, Township 6 South, Range 4 East, Gallatin County, Montana. Tract 1, COS 1898 is a 2.997 acre parcel located on Highway 191 just north of the intersection of Highway 191 and the access road to Big Sky Resort. (See Diagram.) Boyne also sought to quiet title to improvements on Tract 1, COS 1898 made by the Judes as well as damages for the Judes’ allegedly wrongful occupation of Tract 1, COS 1898.
¶8 The Judes own property referred to as the Big Horn Tract. Resolution of this dispute depends on whether the northern boundary line of the Big Horn Tract is located where the surveyor of that subdivision set the monuments marking that line or whether the northern boundary line of the Big Horn Tract is located at the east-west quarter section line of Section 32. Olson asserted at trial that the monuments placed by surveyor Earl Best in 1957 control the northern boundary of the Big Horn Tract and that Olson owns the land north of those monuments (Tract 1, COS 1898). The Judes asserted at trial that the east-west quarter section line of Section 32 controls the northern boundary of the Big Horn Tract and that the Judes own the land up to the east-west quarter section line, which would include Tract 1, COS 1898. The United States Government owns the land north of the east-west quarter section line of Section 32.
Chain of Title
¶9 Thomas Cahill, title examiner and manager of American Land Title Company in Bozeman examined the title to Tract 1, COS 1898 and the Big Horn Tract in 1995 and again prior to trial. Cahill provided his testimony by affidavit in which he identified the following chain of title for Tract 1, COS 1898 and the Big Horn Tract.
¶10 On June 3,1916, the United States Government conveyed the NE Va of the SE Vi of Section 32, Township 6 South, Range 4 East, Gallatin County, Montana, to Andrew Lewinski. During the time that Lewinski owned this parcel of land, a county road was created that ran through the property. This road was called the West Gallatin Road.
¶11 In 1917, Lewinski conveyed the property to Charles Anceny and, on June 22,1992, Anceny conveyed to Gallatin County approximately 3.43 acres of the property for a highway right of way. On December 18, 1922, Anceny conveyed that portion of the property lying west of West Gallatin Road to Gertrude Collett. That parcel was described as all that part of the NE1/^ of the SEVi of Sec. 32, T6S, R4E lying west of the West Gallatin Road, “the land hereby conveyed containing 26.5 acres, more or less.” Between 1922 and 1953, the property changed hands several times. During that time, the deeds transferring this parcel contained a description similar to that in the Anceny-to-Collett deed.
¶12 On July 12,1953, Adelaid McMullen, the owner of the property at that time, conveyed to the State of Montana an additional .71 acres for a highway right of way. This conveyance changed the size and location of the West Gallatin Road to the existing Highway 191 right of way. On November 6,1953, McMullen conveyed to Earl Dawes all that part of the NE Vi of the SE Vi of Section 32, Township 6 South, Range 4 East, lying west of the West Gallatin Road and west of Highway 191.
¶13 On December 19, 1953, Dawes conveyed to L.G. and Ruth Zollinger all that part of the NE Vi of the SE Vi of Section 32, Township 6 South, Range 4 East, lying west of the West Gallatin Road and west of Highway 191, reserving a parcel 300 feet by 260 feet in size. The reserved parcel was later known as “the Dawes-Fishbaugh parcel.” The Zollingers later conveyed an additional .05 acres to the State of Montana for a highway right of way.
¶14 In 1957, the Zollingers decided to subdivide their property. They hired Earl Best to survey and prepare a subdivision plat for a portion of the property. This subdivision became known as the Big Horn Tract and was recorded on June 7,1957, in Plat Book E, page 52 (hereafter referred to as “Plat E-52"), in the offices of the Gallatin Comity Clerk and Recorder.
¶15 The Zollingers subsequently conveyed the property, other than the Big Horn Tract and the Dawes-Fishbaugh parcel to Swenson Furniture & Distributing Co., who later conveyed the property to O.K. Swenson. On February 26, 1970, Swenson conveyed the property to Sam Smeding who, on June 8,1976, conveyed the property to Big Sky of Montana, Inc. (Big Sky). Thereafter, Big Sky conveyed to the State of Montana another 1.9 acres for a highway right of way.
¶16 The Judes began purchasing the Big Horn Tract lots in 1985 for investment purposes.
By the time Boyne (who is the successor by merger to Big Sky) filed its lawsuit in 1995, the Judes owned lots F through Q of the Big Horn Tract. The property description portion of each of the deeds of conveyance for these lots refers to “the official plat thereof on file and of record in the office of the County Clerk and Recorder of Gallatin County, Montana” (Plat E-52).
¶17 On July 7,1995, almost four months prior to the commencement of this action, Boyne had COS 1898 recorded in the offices of the Gallatin County Clerk and Recorder. COS 189, shows a tract of land lying north of the Big Horn Tract and south of the east-west quarter section line of Section 32. This tract is referred to on COS 1898 as Tract 1 and is the property at issue in this action.
¶18 On February 24, 1997, Boyne sold and conveyed Tract 1, COS 1898 to Robert Olson. As part of the purchase agreement for Tract 1, COS 1898, Boyne transferred and assigned all of its right, title and interest in this lawsuit to Olson. Thereafter, Olson was joined as a plaintiff in this action.
¶19 On November 21, 1997, the Judes conveyed lots F through P of the Big Horn Tract to Big Horn Properties, L.P., and lot Q of the Big Horn Tract to their son, Christopher Jude. The Judes are the controlling partners of Big Horn Properties. After these conveyances, Big Horn Properties and Christopher Jude were added as defendants.
¶20 Leland Dawes and the Trustees of the Donaldine Fishbaugh Revocable Trust were the owners of the Dawes-Fishbaugh parcel reserved in 1953. This parcel is located south of Lot G of the Big Horn Tract. On December 3,1997, Dawes and the Trustees transferred their property and all of their right, title and interest in this lawsuit to Boyne. Thereafter, Boyne, the Judes and Olson entered into a stipulation for dismissal in which the claims by and against Boyne were dismissed with prejudice.
Land Surveys
¶21 In 1905, Ralph and Howard Bushnell surveyed Section 32, Township 6 South, Range 4 East, Gallatin County, Montana, under contract to the United States Government. The Bushnells established corners at half-mile intervals for creating sections and quarter sections. They started from the corner of Sections 4, 5, 32 and 33, and proceeded north 0 degrees 4 feet west between Sections 32 and 33. At 40 chains, or halfway between section lines, they placed a 16 inch by 9 inch by 5 inch granite stone 11 inches into the ground. The inscription “Va" was marked on its west face. The stone monumented the east quarter corner of Section 32 and denotes the eastern terminus of the east-west quarter section line through Section 32. This quarter section corner lies at the center of Highway 191.
¶22 In 1953, the Montana State Highway Commission surveyed a portion of Section 32 near what later became the Big Horn Tract. The Commission’s survey located the center line for Highway 191. This survey also depicted the east quarter corner of Section 32 close to the center line of Highway 191.
¶23 In 1957, the Zollingers hired Earl Best to survey and prepare the subdivision plat for the Big Horn Tract. In his “Certificate of Surveyor” on Plat E-52, Best certified that iron pin monuments were set at all external and lot corners of the Big Horn Tract. The “Certificate of Dedication” on Plat E-52 described the Big Horn Tract’s boundaries by reference to the ten comers where Best set monuments and it identified the total acreage of the tract as “14.494 acres, more or less.” However, none of the Big Horn Tract’s corners are identified as being coincident "with any government comer or government monument. Plat E-52 also identifies the acreage for each lot. The Dawes-Fishbaugh parcel is shown, on Plat E-52 as Lot D even though it was not part of the Big Horn Tract.
¶24 Testimony at the trial in this matter showed that Best committed several errors while surveying the Big Horn Tract including: (1) failing to use proper methodology to survey the property; (2) incorrectly locating the original government corner for the starting point of the Big Horn Tract survey as it is identified on the plat; (3) failing to retrace and “follow the footsteps” of the previous government survey that created Section 32; (4) failing to correctly locate the east-west quarter section line of Section 32; (5) failing to locate and properly identify the east quarter comer of Section 32; (6) incorrectly locating and identifying the Dawes-Fishbaugh parcel that is identified as Lot D of the Big Horn Tract; and (7) incorrectly identifying the total acreage for Lot G of the Big Horn Tract.
¶25 Best’s failure to correctly retrace the east-west quarter section line created a discrepancy between the description contained in the Zollinger’s Certificate of Dedication on Plat E-52 and the location of the monuments Best set pursuant to the survey. While the Certificate of Dedication and Plat E-52 itself identify the northern boundary of the Big Horn Tract as being along the east-west quarter section fine, Best placed his monuments for the northern boundary 108 feet south of the east-west quarter section line. In the early 1970s, the State revoked Best’s surveying license for errors similar to the ones he committed with the Big Horn Tract survey.
¶26 In 1959, the Bureau of Land Management resurveyed Section 32 and set new corner monuments. And, in 1970, Louis Tout of Tout & Company conducted a survey of the subject quarter of Section 32 for Big Sky. Tout identified a boundary problem along the east-west quarter section line for Section 32. In a memo dated August 27,1970, Tout noted the discrepancy between the original 1905 United States Government survey that monumented the east quarter corner of Section 32 and where Best referenced the quarter corner location.
¶27 In November 1994, Ron Allen of Allen & Associates surveyed the location of monuments in the Big Horn Tract for Boyne. Allen relied on Best’s erroneously placed monuments to locate the northern boundary of the Big Horn Tract. Allen identified the strip of land located between the northernmost monuments placed by Best and the east-west quarter section line (an area approximately 108 feet by 1200 feet and equaling almost 3 acres) as Tract 1 when he prepared COS 1898. Thereafter, Boyne claimed ownership ofTract 1, COS 1898, contending that it was not part of the Big Horn Tract, therefore, it was never conveyed to the Judes. Allen filed COS 1898 with the Gallatin County Clerk and Recorder’s Office on July 7,1995.
¶28 In the latter part of 1994, the Judes began construction of a cabin on the now disputed parcel identified as Tract 1, COS 1898. After the construction of the cabin had already begun, the Judes learned that Boyne claimed ownership of Tract 1, COS 1898. Nevertheless, the Judes continued with the construction of the cabin. The completed cabin is a two story, two bedroom log structure with an attached garage. The cabin’s foundation extends 33.15 feet into Tract 1, COS 1898.
¶29 In September 1994, an architectural firm hired by the Judes retained Mark Chandler with C & H Engineering and Surveying, Inc., to survey topographical features of the south end of the Big Horn Tract for the design of improvements on that portion of the property. In March 1995, Chandler discovered the material discrepancy between Best’s placed monuments and the east-west quarter section line of Section 32. After a search, Chandler found two of Best’s monuments in the northeast portion of the Big Horn Tract; four of Best’s monuments along the common boundary with U.S. Highway 191; and two of Best’s monuments on the south boundary of the Big Horn Tract. Based upon the found monuments, Chandler computed likely positions for the remaining monuments of the Big Horn Tract, and, based upon his computations, Chandler also determined that Best placed his monuments short of the east-west quarter section line for Section 32 by almost 112 feet.
¶30 Because of the language contained in the Certificate of Dedication provided on Plat E-52 and because Plat E-52 references the east quarter corner and west quarter corner of Section 32 for the location of the northern boundary line of the Big Horn Tract, Chandler opined that it was the Zollingers’ intention that the northern boundary of the Big Horn Tract be located along the east-west quarter section line of Section 32, not at the point where Best set his monuments. Consequently, in August 1995, Chandler prepared a correction plat of the Big Horn Tract for submission to the Gallatin County Planning Office. This plat depicted the northern boundary of the Big Horn Tract along the east-west quarter section line of Section 32. However, because Chandler’s plat constituted a material alteration of a previously filed plat (COS 1898), the Gallatin County Planning Office would not accept it. Thereafter, Chandler submitted a Certificate of Survey depicting the northern boundary of the Big Horn Tract along the east-west quarter section line of Section 32. The Gallatin County Planning Office refused to take action on this Certificate of Survey due to the ownership issues concerning the property.
¶31 On October 27,1995, Boyne filed its complaint against the Judes seeking to quiet title to Tract 1, COS 1898. Boyne also sought to quiet title to the cabin and other improvements made by the Judes on Tract 1, COS 1898, as well as damages for the Judes’ allegedly wrongful occupation of Tract 1, COS 1898. In their answer and counterclaim, the Judes alleged that they own Tract 1, COS 1898, that COS 1898 is a cloud on the title of their lots, and that COS 1898 should be canceled. Originally, the Judes asserted that they also owned Tract 1, COS 1898 under the theory of adverse possession. However, they later conceded that because the evidence indicated that they had not paid the property taxes on Tract 1, COS 1898 as they had believed, they could not establish adverse possession.
¶32 Following a three-day bench trial, the District Court issued its Findings of Fact and Conclusions of Law wherein it determined that because original monuments control the location of boundaries, Plat E-52's references to the 1905 United States Government survey control the location of the northern boundary of the Big Horn Tract. Consequently, the court concluded that the northern boundary of the Big Horn Tract is along the east-west quarter section line of Section 32, hence Tract 1, COS 1898 is part of the Big Horn Tract. The court also concluded that the Judes own Tract 1, COS 1898 and that they are entitled to the quiet and peaceful possession of that property and to the improvements located thereon. The Court ordered that COS 1898 be stricken from the records of the Gallatin County Clerk and Recorder’s Office and that the Judes prepare and file a new instrument that describes the northern boundary of the Big Horn Tract as being along the east-west quarter section line of Section 32.
¶33 On January 22,2001, the court entered Judgment in favor of the Judes and awarded the Judes $676.58 in costs. Olson appeals.
Standard of Review
¶34 We review a district court’s findings of fact to determine whether they are clearly erroneous. State v. Wooster, 1999 MT 22, ¶ 2, 293 Mont. 195, ¶ 2, 974 P.2d 640, ¶2 (citing Interstate Prod. Credit Assn. v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). A finding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if, after reviewing the record, this Court is left with a definite and firm conviction that a mistake has been made. Tester v. Tester, 2000 MT 130, ¶ 10, 300 Mont. 5, ¶ 10, 3 P.3d 109, ¶ 10 (citing In re Estate of Hunsaker, 1998 MT 279, ¶ 26, 291 Mont. 412, ¶ 26, 968 P.2d 281, ¶ 26; DeSaye, 250 Mont. at 323, 820 P.2d at 1287). We review a district court’s conclusions of law to determine whether that court’s interpretation of the law is correct. Tester, ¶ 9 (citing Cenex Pipeline LLC v. Fly Creek Angus, Inc., 1998 MT 334, ¶ 22, 292 Mont. 300, ¶ 22, 971 P.2d 781, ¶ 22; Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686).
Issue 1.
¶35 Whether the District Court correctly determined that the Big Horn Tract’s northern boundary is along the east-west quarter section line of Section 32.
¶36 The District Court determined that the documents conveying title to the Big Horn Tract lots are ambiguous because of discrepancies between the description in the Certificate of Dedication on Plat E-52 and the location of Best’s monuments. Consequently, after examining the circumstances surrounding the creation of the Big Horn Tract to determine the Zollingers’ intent, the court concluded that the northern boundary of the Big Horn Tract is along the east-west quarter section line of Section 32. Hence the court further concluded that Tract 1, COS 1898 is part of the Big Horn Tract and, as such, it belongs to the Judes.
¶37 Olson argues on appeal that the District Court erred because Best’s monuments marking the corners and boundary of the Big Horn Tract are the original monuments for the tract and should control the location of the Big Horn Tract’s northern boundary line. Thus, Olson maintains that the Big Horn Tract’s northern boundary is as depicted on COS 1898, therefore, Olson owns Tract 1, COS 1898.
¶38 The Judes argue on the other hand' that while Olson is correct that original monuments control, Best’s monuments are not the original monuments. The oldest, original monument referenced on Plat E-52 is the monument for the northeast quarter corner set by the United States Government in 1905. Hence, the Judes assert that it should control the location of the northern boundary of the Big Horn Tract.
¶39 When surveyors use comer sections and lines to base measurements and plot tracts, it is essential that they properly identify and authenticate the original monument. Helehan v. Ueland (1986), 223 Mont. 228, 231, 725 P.2d 1192, 1194. “Original corners, as established by the government surveyors, if they can be found, or the places where they were originally established, if they can be definitely determined, are conclusive on all persons owning or holding with reference thereto, without regard to whether they were located correctly or not, and must remain the tme comers or monuments by which to determine the boundaries.” Vaught v. McClymond (1945), 116 Mont. 542, 557, 155 P.2d 612, 619 (quoting 11 C.J.S. Boundaries § 11, p. 552). Moreover, in ascertaining the lines of land or in re-establishing the lines of a survey, the footsteps of the original surveyor, so far as discoverable on the ground by his monuments, should be followed and it is immaterial if the lines actually run by the original surveyor are incorrect. Vaught, 116 Mont. at 550, 155 P.2d at 616 (citing Ayers v. Watson (1891), 137 U.S. 584, 11 S.Ct. 201, 34 L.Ed. 803; Galt v. Willingham (5th Cir. 1926), 11 F.2d 757). See also Buckley v. Laird (1972), 158 Mont. 483, 491-92, 493 P.2d 1070, 1074-75.
¶40 Olson asserts that the District Court erred when it determined that Best improperly set the monuments for the northern boundary of the Big Horn Tract. However, Allen, who was Olson’s own expert witness, testified that Best used improper methodology in surveying the Big Horn Tract.
¶41 The Big Horn Tract plat references two original government comers. Best utilized the “SW corner NEx/4 SEM Sec. 32 T6S, R4E, M.P.M.” as the starting point of his survey for the Big Horn Tract. Furthermore, rather than being the creator of the east-west quarter section line of Section 32, Best was only retracing it, and he retraced it incorrectly. The original government surveyors started at the corner of Sections 4,5,32 and 33 and proceeded north to establish the quarter section monument. As reflected by the location of his placed monuments, Best made no effort to follow the footsteps of the original government surveyors even though it was his duty as a surveyor. Best’s failure to correctly locate and identify the original corners caused him to place his monuments for the northern boundary of the Big Horn Tract 108 feet south of the east-west quarter section line even though Plat E-52 shows the northern boundary lying along the east-west quarter section line.
¶42 Olson also argues that the District Court erred in determining that the deeds of conveyance for the Big Horn Tract lots are ambiguous. We disagree. All of the deeds of conveyance for the Big Horn Tract lots reference Plat E-52 which provides in the Certificate of Dedication signed by the Zollingers: “thence North eighty-nine degrees and fifty-two minutes East... along the North boundary of the Southeast one-quarter of said Section Thirty-two....” Moreover, the right uppermost portion of Plat E-52 depicts a dotted line extending from the northeast corner of the Big Horn Tract to the United States Government monument for the eastern terminal point of the east-west quarter section line, and provides the following language: “NE Corner NEV4 SEx/4 Section 32 T6S, R4E, M.P.M.”
¶43 Thus, Plat E-52 depicts the northern boundary monuments as being on the east-west quarter section line. However, Best’s placed monuments are located 108 feet south of the east-west quarter section line for Section 32. Furthermore, Best located the east quarter corner of Section 32 outside of Highway 191 when it is actually located near the centerline of Highway 191. Consequently, the District Court was correct in determining that the inconsistencies between the references on Plat E-52 and the location of Best’s monuments create an ambiguity.
¶44 Olson further argues that the District Court erred in permitting the Judes’ expert witness to testify about the Zollingers’ intent in creating the Big Horn Tract. Olson suggests that § 70-20-201, MCA, applies in this situation. Section 70-20-201(1), MCA, provides that where there are definite and ascertained particulars in a description, the addition of others which are indefinite, unknown, or false does not frustrate the first mentioned particulars.
¶45 The Judes argue on the other hand that Olson fails to identify any indefinite, unknown particulars considered by the District Court. The District Court cited in its conclusions the Certificate of Dedication’s reference to the east-west quarter section line and Plat E-52's reference to the quarter corner. We agree with the Judes that these references are definite and ascertainable and that Best’s improperly placed monuments should be considered the false particulars frustrating the conveyance.
¶46 Furthermore, Plat E-52 and the descriptions and landmarks contained therein (including the Certificate of Dedication signed by the Zollingers) are incorporated into the deeds of conveyance in the Judes’ chain of title. This Court has previously held that
[w]hen lands are granted according to an official plat of a survey, the plat itself, with all its notes, lines, descriptions and landmarks, becomes as much a part of the grant or deed by which they are conveyed, and controls so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself.
Vaught, 116 Mont. at 548-49, 155 P.2d at 616 (citing Pittsmont Copper Co. v. Vanina (1924), 71 Mont. 44, 227 P.46; Cragin v. Powell (1888) 128 U.S 691, 9 S.Ct. 203, 32 L.Ed. 566; Jefferis v. East Omaha Land Co. (1890), 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872; United States v. Otley (9th Cir. 1942), 127 F.2d 988; Ohlson v. Batterton (Mo. 1921), 230 S.W. 110; Read v. Bartlett (Ill. 1912), 99 N.E. 345). We conclude that because Plat E-52 is part of the deeds of conveyance in the Judes’ chain of title, the District Court was correct in allowing into evidence the Certificate of Dedication contained in Plat E-52.
¶47 Olson further argues that the District Court erred by considering evidence regarding the Zollingers’ intent. Section 70-1-513, MCA, provides that “[g]rants are to be interpreted in like manner with contracts in general, except so far as is otherwise provided [by statute].” To that end, § 28-2-905(2), MCA, provides that extrinsic evidence concerning a written agreement maybe considered to explain an extrinsic ambiguity. And, “[f]or the proper construction of an instrument, the circumstances under which it was made, including the situation of the subject of the instrument and of the parties to it, may also be shown so that the judge be placed in the position of those whose language he is to interpret.” Section 1-4-102, MCA. Where a written instrument is ambiguous, extrinsic evidence may be utilized to discover the parties’ intent. Peterson v. Hopkins (1984), 210 Mont. 429, 436, 684 P.2d 1061, 1065 (citing St. Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 665 P.2d 223; Adams v. Chilcott (1979), 182 Mont. 511, 597 P.2d 1140).
¶48 Both expert witnesses, Allen and Chandler, testified that when they draft a certificate of dedication, they attempt to draft it according to the property owner’s intentions. Moreover, both Allen and Chandler testified that the publication Brown’s Boundary Control and Legal Principles (4th ed. 1995), is recognized as an authoritative and reliable authority on the subject of boundary control and related principles.
¶49 Brown’s provides that the clearly expressed intent of the subdividers controls over all other survey references, including calls to monuments in the dedication. Brown’s, at 303. We agree with the Judes that the following principles provided in Brown’s are applicable in this matter:
Principle 9. Where lines are actually located and marked on the ground as a consideration of the transaction and called for by the deed, the lines so marked most clearly show the intentions of the parties and are presumed paramount to other written considerations, senior rights and clearly expressed contrary intentions being excepted.
Principle 10. Monuments called for in a deed, either directly or by a survey, or by reference to a plat that the parties relied on, are subordinate to senior rights, clearly stated contrary intentions, and original lines actually marked and surveyed, but are presumed superior to direction, distance, or area.
Principle 11. Where there are conflicts between monuments called for and no senior right is interfered with, the monument most clearly showing the written intentions of the parties is controlling.
Moreover, in its December 28, 2000 Findings of Fact and Conclusions of Law, the District Corut adopted Brown’s Principle 11 in making its determination because the location of Best’s monuments conflicts with the location of the government’s original monument for the east quarter corner of Section 32.
¶50 These fundamental survey principles provide that the parties’ intent is paramount to all other considerations when interpreting surveys and conveyances. In the case sub judice, the Certificate of Dedication on Plat E-52 clearly shows that the Zollingers intended that the northern boundary of the Big Horn Tract extend to the east-west quarter section line and not to Best’s erroneously located monuments.
¶51 Best failed to survey the Big Horn Tract pursuant to the Zollingers’ clearly expressed intentions. Plat E-52's references to the government section line controls the location of the northern boundary of the Big Horn Tract.
Relying on previous decisions, courts have given surveyors guidance in the resolution of problems.
Three basic elements which have been identified are:
1) An occupancy right that has ripened into a legal right extinguishes or becomes superior to all written title to occupied land.
2) As between private parties in a land dispute, a senior right is superior to a junior right.
3) Written intentions of the parties are paramount.
Brown’s, at 249.
¶52 Accordingly, we hold that the District Court correctly determined that the Big Horn Tract’s northern boundary is along the east-west quarter section line of Section 32.
Issue 2.
¶53 Whether the District Court correctly awarded the relief sought by the Judes.
¶54 The District Court concluded that because the northern boundary of the Big Horn Tract is the east-west quarter section line of Section 32, the Judes own what is currently described as Tract 1, COS 1898 and are entitled to the quiet and peaceful possession of that tract and to the improvements located thereon. The court also ordered that COS 1898 be removed from the records of the Gallatin County Clerk and Recorder and that a new instrument be prepared that describes the northern boundary of the Big Horn Tract as being along the east-west quarter section line of Section 32.
¶55 Olson argues that the District Court erred in quieting title in favor of the Judes and in ordering the removal of COS 1898 from the records of the Clerk and Recorder because COS 1898 was properly prepared and accurately identifies the property. Olson also argues that COS 1898 describes Tract 2 which was not at issue in this action and the court’s ruling effectively destroys the description of Tract 2 and erroneously affects title to Tract 2.
¶56 The Judes argue on the other hand that because the District Court determined that the northern boundary of the Big Horn Tract is along the east-west quarter section line of Section 32, the court correctly quieted title in their favor. Furthermore, the Judes argue that since COS 1898 depicts the northern boundary of the Big Horn Tract 108 feet short of the east-west quarter section line, the District Court was correct in ordering COS 1898 removed from the records of the Gallatin County Clerk and Recorder and in ordering the Judes to file an instrument reflecting the Big Horn Tract’s northern boundary along the east-west quarter section line.
¶57 We agree with the arguments put forth by the Judes. As we held in the previous issue, the District Court correctly determined that the Big Horn Tract’s northern boundary is along the east-west quarter section line of Section 32. As such, the Judes own what is currently described as Tract 1, COS 1898 and there is no justification for not quieting title to that parcel in the Judes’ favor.
¶58 Furthermore, there is no reason to retain an erroneous plat on file in the Clerk and Recorder’s office. Olson’s argument that the court’s ruling effectively destroys the description of Tract 2, which was not at issue in this matter, and erroneously affects title to Tract 2, is disingenuous. Ordering that a new instrument be prepared and filed that describes the northern boundary of the Big Horn Tract as being along the east-west quarter section line of Section 32 would not destroy the description of Tract 2, which lies to the south of the Big Horn Tract, or erroneously affect title to Tract 2 as Olson contends. Therefore, we hold that the District Court was correct in ordering the removal of COS 1898 from the Clerk and Recorder’s records and in ordering that a new instrument be prepared that describes the correct northern boundary of the Big Horn Tract.
¶59 Olson also argues that he should have been allowed his costs of suit. However, pursuant to § 25-10-501, MCA, “the party in whose favor judgment is rendered” maybe allowed costs of suit. Because the District Court quieted title in favor of the Judes, the court correctly awarded costs to the Judes.
¶60 Accordingly, we hold that the District Court correctly awarded the relief sought by the Judes.
¶61 Affirmed.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, LEAPHART and RICE concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 City of Cut Bank (Cut Bank) appeals from the decision of the Ninth Judicial District Court, Glacier County, dismissing with prejudice Cut Bank’s complaint based upon the United States Supreme Court’s decision in Doctor’s Associates, Inc. v. Casarotto (1996), 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902 (Casarotto). More specifically, the District Court determined that the transaction between Cut Bank and Tom Patrick Construction (Tom Patrick), which is the basis of the current action, involved interstate commerce and thus must be arbitrated pursuant to the Federal Arbitration Act (FAA). We reverse and remand.
Factual and Procedural Background
¶2 Cut Bank entered into a construction contract with Tom Patrick on November 16,1993. The contract required Tom Patrick to replace a water line in Bum Coulee, construct an access road and stabilize the surrounding coulee and ditch areas. Tom Patrick completed the first two stages — replacing the water line and constructing the access road. Cut Bank, however, contends that the riprap materials used by Tom Patrick in the stabilization stage of the construction were insufficient to complete the project to specifications.
¶3 Cut Bank made several requests that Tom Patrick complete the project in accordance with the contract but eventually hired the services of another contractor to complete the project according to specifications. Completion of the project was more costly than the original contract price. Cut Bank refused to the make final payment due to Tom Patrick under the contract and refused to surrender Tom Patrick’s bond and performance bond.
¶4 As a result, Tom Patrick served Cut Bank with a notice of intent to arbitrate the dispute. Cut Bank objected to arbitration proceedings, asserting that no valid contract for arbitration existed because the construction contract did not comply with § 27-5-114(4), MCA (1993), which required that notice that a contract is subj ect to arbitration be typed in underlined capital letters on the front page of the contract. Cut Bank filed a complaint in District Court seeking a stay of arbitration. Tom Patrick dismissed the arbitration proceedings and requested that the District Court stay further proceedings pending the resolution of the challenge to § 27-5-114, MCA, in Casarotto. The District Court granted the stay.
¶5 The United States Supreme Court issued its decision in Casarotto (1996), 517 U.S. 681, 116 S.Ct. 1652, 134 L.Ed.2d 902, determining that §27-5-114(4), MCA, was preempted by the FAA. Thereafter, Tom Patrick moved to dismiss Cut Bank’s complaint for failure to state a cause of action. Cut Bank responded that the FAA was not applicable to the construction contract because the contract did not involve interstate commerce. The District Court, citing Casarotto, dismissed Cut Bank’s complaint with prejudice. Cut Bank appeals to this Court presenting three issues for review. We determine that the issue of whether the complaint alleges an underlying contract involving interstate commerce is dispositive and therefore do not reach the remaining issues.
Standard of Review
¶6 Our standard of review of district court rulings on motions to dismiss under Rule 12(b)(6), M.R.Civ.P, is set forth in Willson v. Taylor (1981), 194 Mont. 123, 634 P.2d 1180:
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.
Willson, 194 Mont. at 126, 634 P.2d at 1182 (citations omitted). The District Court’s determination that Cut Bank’s complaint failed to state a claim is a conclusion of law. Our standard of review of the trial court’s conclusions of law is whether the tribunal’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
Discussion
¶7 Congress, in enacting the FAA, sought to foreclose state legislative attempts to undercut the enforceability of arbitration agreements. The United States Supreme Court has explained that § 2 of the FAA reflects a strong national policy favoring arbitration agreements. Perry v. Thomas (1987), 482 U.S. 483, 107 S.Ct. 2520, 96 L.Ed.2d 426. As a result of this strong policy, agreements to arbitrate will be upheld under the FAA unless the agreement is not part of a contract evidencing interstate commerce or is revocable “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
¶8 Recognizing that many contracts provide little warning to parties that a contract is subject to arbitration, the Montana legislature enacted § 27-5-114(4), MCA. That section required that notice that a contract was subject to arbitration be printed in capitalized underlined print on the front of the contract. In so providing, the legislature sought to ensure that parties to a contract were aware, when they signed a contract subject to an arbitration clause, that they were waiving their constitutional right to access the courts. The legislature sought to prevent parties from waiving that right without their full knowledge.
¶9 Specifically, § 27-5-114(4), MCA, stated that “notice that a contract is subject to arbitration pursuant to this chapter shall be typed in underlined capital letters on the first page of the contract; and unless such notice is displayed thereon, the contract may not be subject to arbitration.” This section (since repealed) was in effect in November 1993, at the time that Cut Bank entered into the construction contract with Tom Patrick. The construction contract did not comply with the notice requirement of § 27-5-114(4), MCA. Rather, Section 16.1, located in the Standard General Conditions on page 110 of the Contract Documents, stated that “[a]ll claims, disputes and other matters in question between [Cut Bank] and [Tom Patrick] arising out of or relating to the Contract Documents or the breach thereof... will be decided by arbitration ....’’At the District Court, Cut Bank contended that this provision does not comply with the requirements of § 27-5-114(4), MCA, therefore that the agreement to arbitrate is not enforceable. Tom Patrick, on the other hand, maintained that this ac tion is controlled by the United States Supreme Court’s decision in Casarotto.
¶10 The United States Supreme Court, in Casarotto, held that Montana’s first-page notice requirement found at § 27-5-114(4), MCA, conflicted with the FAA and was therefore preempted by the federal law. Specifically, the Supreme Court explained that “[cjourts may not... invalidate arbitration agreements under state laws applicable only to arbitration provisions.” Casarotto, 116 S.Ct. at 1656. Instead, the arbitration provisions must be treated like any other contract and may only be invalidated “upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.
¶11 Cut Bank asserts that this action is distinguishable from Casarotto because the transaction in this case does not involve interstate commerce. Specifically, Cut Bank maintains that this case is purely local, that it does not involve interstate commerce, and therefore that the FAA does not apply. Accordingly, the sole issue presented to this Court is whether the complaint alleges a contract involving interstate commerce, thereby invoking the FAA, or whether the contract is purely local and outside the purview of the FAA.
¶12 The District Court stated, in its order dismissing Cut Bank’s complaint, that “from a review of the undisputed facts,... this matter ... involve[s] interstate commerce.” As explained above, a motion to dismiss the complaint for failure to state a claim has the effect of admitting all well-pleaded allegations in the complaint. The complaint is construed in the light most favorable to the plaintiff and all allegations of fact contained in the complaint are taken as true. Willson, 194 Mont. at 126, 634 P.2d at 1182.
¶13 Cut Bank’s complaint alleges that it is a municipal corporation created and existing pursuant to the laws of the State of Montana, that Tom Patrick is a corporation organized and doing business in Montana, and that the contract entered into by the parties involved work to be performed in Montana. Since the District Court’s order does not specify the basis for its conclusion that the matter involved interstate commerce, we cannot determine the District Court’s underlying rationale. In any event, we review a district court’s conclusions of law to determine whether the court correctly interpreted the law. A review of the complaint, when viewed in the light most favorable to Cut Bank, reveals that the construction contract as alleged in the complaint was a local transaction that did not involve interstate commerce. The District Court incorrectly dismissed Cut Bank’s complaint pursuant to Casarotto.
¶ 14 Pursuant to the Commerce Clause of the United States Constitution, Congress has the power to regulate commerce among the states. U.S. Const, art. I, § 8, cl. 3. In United States v. Lopez (1995), 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626, the United States Supreme Court explained that there are three broad categories of activities that Congress can regulate pursuant to its commerce power: the use of channels of interstate commerce, the regulation and protection of the instrumentalities of interstate commerce, and those activities having a substantial relation to interstate commerce. Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. The construction contract at issue in this case does not entail use of the channels of interstate commerce nor regulation and protection of the instrumentalities of interstate commerce. Thus, unless the contract has a substantial relation to interstate commerce, it is not regulated by federal law.
¶15 The Court in Lopez further clarified that, with respect to the third category, the proper test for determining whether an activity has a substantial relation to interstate commerce requires an analysis of whether the regulated activity “substantially affects” interstate commerce. Lopez, 514 U.S. at 559, 115 S.Ct. 1624. The Court explained that there are no precise formulations; rather, the question of congressional power under the Commerce Clause is “necessarily one of degree.” Lopez, 514 U.S. at 566-67. In determining the degree of power Congress sought to exercise over a particular activity, the Supreme Court looks to the language of the congressional act. Most statutes passed by Congress which seek authority pursuant to its Commerce power include a jurisdictional element prescribing such power. The jurisdictional element found in § 2 of the FAA, which was absent from the relevant statute in Lopez, ensures a case by case inquiry of whether the activity is one “involving [interstate] commerce.” 9 U.S.C. § 2.
¶16 Specifically, the jurisdictional element of § 2 of the FAA allows Congress to regulate contracts “evidencing a transaction involving commerce.” 9 U.S.C. § 2. In Allied-Bruce Terminex Co. v. Dobson (1995), 513 U.S. 265, 115 S.Ct. 834, 130 L.Ed.2d 753, the Supreme Court concluded “that the word ‘involving’ is broad and is indeed the functional equivalent of the word ‘affecting.’ ” Allied-Bruce, 513 U.S. at 273-74, 115 S.Ct. 834. As a result, the Supreme Court determined that in enacting the FAA, Congress intended to exercise its powers under the Commerce Clause to the fullest Allied-Bruce, 513 U.S. at 277, 115 S.Ct. 834.
¶17 In addition, in Allied-Bruce, the Supreme Court clarified that in determining whether a particular transaction falls within the ambit of § 2 of the FAA, the transaction must “in fact” involve interstate commerce. Allied-Bruce, 513 U.S. at 281, 115 S.Ct. 834. In so holding, the Supreme Court specifically rejected a test that focused on the understanding of the parties that a transaction involves interstate commerce. Allied-Bruce, 513 U.S. at 281, 115 S.Ct. 834. The parties in Allied-Bruce did not contest that the transaction in that case in fact involved interstate commerce. Likewise, in Casarotto, the parties did not contest that the franchise agreement involved interstate commerce. See Casarotto v. Lombardi (1995), 274 Mont. 3, 8, 901 P.2d 596, 598 (indicating that we assumed in that decision that the transaction with which we were concerned involved interstate commerce). In the case at bar, however, the central issue is whether the construction contract involved interstate commerce.
¶18 Cut Bank maintains, as it did in its complaint, that it is amunicipal corporation created and existing pursuant to the laws of the State of Montana. Tom Patrick is a corporation chartered in the State of Montana with its principal place of business in Havre, Hill County, Montana. Delta Engineering, the other main party to the construction contract, is an engineering firm organized in Montana with its principal place of business in Great Falls, Cascade County, Montana. The construction contract called for work to be performed in Bum Coulee, Montana. All phases of the construction were to occur within the confines of Glacier County, Montana.
¶19 In support of its argument that the construction contract involved interstate commerce, Tom Patrick maintains that it was required per the contract to purchase liability insurance which it obtained from Safeco at its area office in Spokane, Washington. In addition, Tom Patrick contends that it purchased performance and payment bonds from National American Insurance Co., located in Boulder, Colorado. Finally, Tom Patrick states that it purchased materials out of state for delivery to Montana.
¶20 Tom Patrick’s contentions all raise matters outside of the pleadings. In dismissing the complaint, the court was responding to Tom Patrick’s motion to dismiss for failure to state a claim upon which relief could be granted under Rule 12(b), M.R.Civ.P. There is no indication in the record that the District Court gave notice that it would consider matters outside the pleadings, thereby converting the Rule 12 motion to a Rule 56 motion for summary judgment. Accordingly, we accept the court’s order at face value; that is, that it concluded, based upon the allegations in the complaint and on the information in the attached documents, that the transaction involved interstate commerce and thus the United States Supreme Court’s holding in Casarotto was controlling. In ruling on a Rule 12 motion to dismiss, the only relevant document is the complaint and any documents it incorporates by reference. Although the attached contract documents required Tom Patrick to purchase insurance and bonds, neither the complaint nor the attached contracts required Tom Patrick to purchase bonds or insurance out of state. As to the purchase of materials out of state, that too is a matter outside the pleadings. Furthermore, we must assume that the court’s decision was not premised on this assertion of fact since it was not undisputed. Cut Bank contends that the materials were purchased from Montana firms and transported by a Montana trucking firm. Even if the court had converted the motion to a Rule 56 motion and considered matters outside the pleadings, it could not issue a summary judgment based upon such disputed facts.
¶21 This case was in the pleading stage with only a complaint filed. The District Court order, dismissing Cut Bank’s complaint for failure to state a claim, presents no analysis or reasoning in support of its conclusion that this action involves interstate commerce. This Court, after reviewing the pleadings and briefs before it, concludes that the construction contract as alleged in the complaint was a local transaction, not involving interstate commerce, and therefore we hold that the District Court erred when, relying on Casarotto, it dismissed the complaint for failure to state a claim under Rule 12, M.R.Civ.P. We reverse and remand.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON and TRIEWEILER concur.
. See, e.g., Heart of Atlanta Motel, Inc. v. United States (1964), 379 U.S. 241, 85 S.Ct. 348, 13 L.Ed.2d 258 (Congress possessed ample power under Commerce Clause to enact provisions of Civil Rights Act of 1964 precluding discrimination in public accommodations).
. See, e.g., Southern Ry. Co. v. United States (1911), 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (Congress had the power, under the Commerce Clause of the United States Constitution, to require, as it did in Safety Appliance Act March 2,1893, c. 196, 27 Stat. 531, as amended by Act March 2, 1903, c. 976, 32 Stat. 943, 45 U.S.C.A. S 1 et seq., that all locomotives, cars, and similar vehicles used on any railway engaged in interstate commerce shall be equipped with certain designated safety appliances, regardless of whether such vehicles are used in moving intrastate or interstate traffic).
. Nonetheless, the Supreme Court noted that in addition to the multistate nature of Terminex and Allied-Bruce, the termite-treating and house-repairing material used by Allied-Bruce was supplied from another state. Allied-Bruce, 513 U.S. at 282, 115 S.Ct. 834. At least one court has characterized the Supreme Court’s notation of Terminex’s multi-state nature and the fact that material used by Allied-Bruce came from outside the state as sufficient evidence that the contract involved interstate commerce. United States v. Harrington (D.C. Cir. 1997), 108 F.3d 1460, 1466. We focus, however, on the fact that the parties in Allied-Bruce did not contest that the contract involved interstate commerce.
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JUSTICE REGNIER
delivered the opinion of the Court.
¶1 In August 1995, James Lewis filed a petition in the Eighth Judicial District Court, Cascade County, to establish paternity, custody, and visitation rights as the father of then three-year-old B.E.S. In June 1997, Lewis filed a motion for contempt and for specified visitation on the grounds that the child’s mother, Melissa Sowers (now known as Melissa Greene and hereinafter referred to as Sowers) had denied him reasonable visitation. Sowers later filed a motion asking that the District Court decline to exercise continuing jurisdiction over the matter. The court denied Sowers’ motion to decline jurisdiction, and subsequently entered an oral order granting Lewis much of the relief he sought by way of his motion for contempt and specified visitation. Sowers appeals from the District Court’s order denying her motion to decline jurisdiction and from the court’s oral order granting Lewis’s motion for specified visitation and request for attorney fees.
¶2 The sole dispositive issue presented by Sowers on appeal is whether the District Court abused its discretion in denying her motion to decline jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 B.E.S. was born in Great Falls, Montana, on March 29,1992, to Melissa Sowers and James Lewis. The relationship between Sowers and Lewis had begun to deteriorate prior to B.E.S.’s birth, and the two never married. The record indicates that Lewis’s paternity was initially established by blood tests performed in 1994.
¶4 B.E.S. has lived with her mother for her entire life. B.E.S. lived in Great Falls with her mother from the time of her birth until the summer of 1997, when she and her mother moved to Fargo, North Dakota, to live with Sowers’ new husband. On August 15, 1995, while B.E.S. and her mother were still living in Great Falls, Lewis filed a petition in Cascade County District Court to establish paternity, custody, and visitation rights as B.E.S.’s father. Lewis is a Wisconsin resident, as he was at the time he filed the petition in August 1995.
¶5 On March 6,1996, Lewis filed a motion for temporary visitation on the grounds that he and Sowers had been unable to negotiate an acceptable visitation schedule. On March 15,1996, Sowers filed a motion for an order requiring Lewis to pay temporary child support, to maintain health insurance for B.E.S. and to pay all of the child’s uncovered medical expenses. The court held a hearing on March 18, 1996, to address the parties’ respective motions. Prior to the hearing, the parties reached an agreement with respect to temporary visitation, temporary child and medical support, and a variety of other issues. The parties entered their stipulations upon the record during the hearing.
¶6 More than one year later, on June 24,1997, Lewis filed a “motion for contempt, for specified visitation, and other relief.” Lewis asserted he had been denied visitation with his daughter on a regular basis, and asked the court to order “a set visitation schedule.” Lewis additionally asked that the court hold Sowers “in contempt for her failure to abide by past orders, and to live up to her obligations under the joint custody statutes regarding maintaining contact between” B.E.S. and Lewis. Among Lewis’s remaining requests were that the court issue an order temporarily prohibiting Sowers from removing B.E.S. from the court’s jurisdiction, and that it order Sowers to pay the attorney fees and costs he incurred in connection with filing the motion.
¶7 On July 10,1997, the District Court issued a temporary order mandating that B.E.S. “remain in Great Falls, Montana, with her maternal grandmother, until a hearing can be held in this matter.” The court set a hearing to address the remainder of Lewis’s motion for October 31,1997.
¶8 OnSeptember 19,1997, Sowers filed a motion for an order declining jurisdiction. Sowers asked that the court decline “to exercise continuing jurisdiction in this matter for the reasons that this state is an inconvenient forum, pursuant to Section 40-7-108, MCA, and the child’s home state of North Dakota is a more appropriate forum for this case.” Sowers noted that Lewis was a resident of Wisconsin, and argued that because she and B.E.S. were residents of North Dakota, “[a]ny evidence regarding the child’s present or future care, protection, training, and personal relationships is more readily available in North Dakota than in Montana.” Sowers argued that “[t]he state of North Dakota obviously has a closer connection with the child and her family than Montana has,” and asserted that the continued exercise of jurisdiction by Montana’s courts would contravene the purpose of the Uniform Child Custody Jurisdiction Act.
¶9 On October 29,1997, the District Court issued an order denying Sowers’ motion for an order declining jurisdiction, finding that, at the time Lewis filed his motion for contempt, for specified visitation, and other relief, “Montana was clearly the home state of the child and it is at that point that the determination is made.” The court additionally noted that, as of the October 29,1997, date of its order, B.E.S. had “yet to live for a six month period of time in North Dakota.”
¶10 OnOctober31,1997, the court held a hearing on Lewis’s motion for contempt, visitation, and other relief. At the close of the hearing, the court entered an oral order granting Lewis certain visitation rights, and mandating that Sowers pay a portion of Lewis’s attorney fees and costs.
¶11 On November 26,1997, Sowers filed her notice of appeal from the District Court’s October 29,1997, order denying her motion to decline jurisdiction, and from its October 31,1997, oral order regarding visitation and attorney fees.
DISCUSSION
¶12 Did the District Court abuse its discretion in denying Sowers’ motion to decline jurisdiction?
¶ 13 As noted, Sowers appeals from the District Court’s order denying her motion to decline jurisdiction, as well as from its subse quent order granting Lewis certain visitation rights and mandating that she pay a portion of his attorney fees and costs. Although Sowers appeals from both orders, the sole issue she raises on appeal is whether the court erred in denying her motion to decline jurisdiction. We review the District Court’s decision denying Sowers’ motion to decline jurisdiction for an abuse of discretion. See, e.g., In re Marriage of Irwin (1993), 259 Mont. 176, 179, 855 P.2d 525, 527.
¶14 On appeal, Sowers argues the District Court failed to complete the two-tiered jurisdictional analysis required by the Uniform Child Custody Jurisdiction Act (UCCJA), and that it was thus an abuse of discretion for the court to deny her motion to decline jurisdiction. Although Sowers does not specifically dispute the District Court’s conclusion that Montana was B.E.S.’s “home state” at the time of Lewis’s motion for contempt and visitation, she does assert the court erred in ending its jurisdictional inquiry at that point. Sowers argues that once the court had evaluated the jurisdictional prerequisites of § 40-4-211, MCA, it was bound to then determine whether Montana’s courts were an inconvenient forum to make a custody determination under the circumstances present at the time of her September 19, 1997, motion to decline jurisdiction. More specifically, Sowers argues the court abused its discretion in failing to address those factors identified in § 40-7-108(3), MCA, as relevant to an inconvenient forum determination. For example, although Sowers concedes the court considered whether another state was B.E.S.’s home state, she argues the court failed to consider whether another state had a closer connection with the child and whether substantial evidence regarding B.E.S.’s welfare was more readily available in another state. Sowers also argues the court failed to consider whether the continued exercise of jurisdiction by Montana’s courts would contravene the purposes of the UCCJA as set forth in § 40-7-102, MCA. Based on the foregoing, Sowers asks that we vacate the District Court’s decision, and remand this matter “with instructions to stay the District Court proceedings pending assumption of jurisdiction over these matters by the North Dakota court.”
¶15 Lewis, in contrast, argues the District Court correctly concluded it had jurisdiction over the present case pursuant to § 40-4-211, MCA, and asserts the court did not abuse its discretion in deciding to maintain jurisdiction over the matter. More specifically, Lewis argues the District Court correctly concluded that Montana was B.E.S.’s “home state,” and argues the court thus had jurisdiction pursuant to § 40-4-211, MCA.
¶16 Lewis next recognizes that § 40-7-108, MCA, authorizes a Montana court to decline jurisdiction “at any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum,” but argues the court was not obligated to undertake such an analysis. Even if it was necessary for the court to address the inconvenient forum question, however, Lewis argues there was no more appropriate forum in this case than that presented by Montana’s courts. For example, Lewis asserts that “all relevant evidence pertaining to B.E.S.’s care, training, [and] personal relationships” was located in Montana at the time he filed his motion for contempt and visitation. Moreover, unlike Sowers, Lewis asserts that the District Court’s decision to maintain jurisdiction in this case actually complies with the stated purposes of the UCCJA. Based on the foregoing, Lewis argues the District Court did not abuse its discretion in denying Sowers’ motion to decline jurisdiction.
¶17 We have previously stated that the UCCJA “establishes a two-tiered jurisdictional test which a court must find satisfied before it makes even an initial custody decree.” In re Marriage of Bolton (1984), 212 Mont. 212, 216, 690 P.2d. 401, 403 (quoting Wenz v. Schwartze (1979), 183 Mont. 166, 178, 598 P.2d 1086, 1093, cert. denied (1980), 444 U.S. 1071, 100 S. Ct. 1015, 62 L. Ed. 2d 753). The first tier “mandates that one of the four disjunctive requirements of Section 40-4-211, MCA, be satisfied before a district court may take jurisdiction to make a child custody determination.” Bolton, 212 Mont. at 216, 690 P.2d at 403. Section 40-4-211(1), MCA, provides in pertinent part that “[a] court of this state competent to decide parenting matters has jurisdiction to make a parenting determination by initial or amended decree if: (a) this state: (i) is the home state of the child at the time of the commencement of the proceedings.”
¶18 In the present case, the District Court specifically concluded that because B.E.S. had “yet to live for a six month period of time in North Dakota” at the time of Lewis’s motion for contempt and specified visitation, or the time of its order, “Montana was clearly the home state of the child.” Because Sowers does not specifically dispute this conclusion on appeal, we need not determine whether the court erred in concluding that Montana qualified as B.E.S.’s “home state” as that term is defined by § 40-7-103(5), MCA. It is thus apparent that the first tier' of the UCCJA’s jurisdictional test was met in the present case.
¶19 The second tier of the UCCJA’s jurisdictional test “demands that a court which has satisfied the prerequisites of Section 40-4-211, MCA, then determine whether jurisdiction should be exercised.” Bolton, 212 Mont. at 220, 690 P.2d at 405. Under this second tier, the district court has “discretionary authority to ‘decline to exercise its jurisdiction’ upon a determination that it is an ‘inconvenient forum’ and that a court of another state is a ‘more appropriate forum.’” Bolton, 212 Mont. at 216-17, 690 P.2d at 403 (citing § 40-7-108, MCA). We have explicitly recognized that “[t]he decision to decline jurisdiction on inconvenient forum grounds is purely discretionary with the District Court.” In re Marriage of Cook (1986), 223 Mont. 293, 297, 725 P.2d 562, 564-65. We have stated that the court, in determining whether it is an inconvenient forum, “shall consider if it is in the child’s best interest for another state to assume jurisdiction, taking into account such factors as whether another state is the child’s home state, whether substantial evidence concerning the child’s welfare is more readily available in another state, and whether the exercise of jurisdiction by a Montana court would contravene the UCCJA’s stated purposes.” Irwin, 259 Mont. at 179, 855 P.2d at 527 (citing § 40-7-108(3), MCA). Section 40-7-108(3), MCA, specifically provides that:
In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
(a) if another state is or recently was the child’s home state;
(b) if another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(c) if substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(d) if the parties have agreed on another forum which is no less appropriate; and
(e) if the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in 40-7-102.
¶20 Although the District Court considered the “home state” factor, it is clear from the text of its order denying Sowers’ motion to decline jurisdiction that it did not specifically evaluate any of the remaining statutory factors before deciding to maintain jurisdiction over the present case. Despite the fact that the court did not expressly discuss the remaining criteria identified by § 40-7-108(3), MCA, we nevertheless conclude the court did not abuse its discretion in denying Sowers’ motion to decline jurisdiction. Nowhere does § 40-7-108(3), MCA, mandate that the court consider each of the five factors set forth within. Instead, the statute simply lists a number of elements which the court may consider in making an inconvenient forum determination. In the present case, the court clearly considered the first factor set forth in § 40-7-108(3), MCA, and concluded that Montana was B.E.S.’s home state. The record indicates that B.E.S. spent the first five years of her life in Great Falls, Montana, and moved to North Dakota in early July 1997, just days after Lewis filed his motion for contempt and for specified relief. Sowers filed her motion asking that the court decline to exercise continuing jurisdiction over the case just two and one-half months after B.E.S. had moved to North Dakota. At the time of Sowers’ motion to decline jurisdiction, B.E.S. had lived in Montana for all but two and one-half months of her life. Under these circumstances, there is no indication that B.E.S. and her family had any closer connection to North Dakota then they did to Montana, and no indication that evidence regarding B.E.S.’s welfare was any more readily available in North Dakota than it was in her home state of Montana. Finally, we note there is no indication that the exercise of continuing jurisdiction by the Montana court in this case contravenes any of the nine general purposes of the UCC JA, among which is the deterrence of “unilateral removals of children undertaken to obtain custody awards.” Section 40-7-102(l)(e), MCA.
¶21 Based on the foregoing, we hold the District Court did not abuse its discretion in denying Sowers’ motion to decline jurisdiction, and accordingly affirm the court’s October 31,1997, oral order regarding visitation and attorney fees.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and TRIEWEILER concur.
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] |
JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Appellant Dianne Ereth (Ereth) appeals from the denial of her motion to withdraw her Alford plea and from her conviction in the Eighth Judicial District Court, Cascade County. We reverse and remand.
¶2 Ereth raises the following issues:
¶3 1. Did the District Court err in refusing to allow Ereth to withdraw her guilty plea?
¶4 2. Did the District Court err in ordering Ereth to pay $10,000 in restitution to the victims?
¶5 Because we find issue one dispositive, we will not address issue two.
Factual and Procedural Background
¶6 On August 31, 1994, Ereth was charged by information with three counts of sexual intercourse without consent and two counts of sexual assault, all felonies. The charges involved J.A., an eleven-year-old boy, and K.A., a nine-year-old girl. Ereth lived with J.A., K.A., and their mother for a period of time and babysat the children. The information alleged that Ereth fondled J.A.’s genitalia and penetrated KA.’s vagina with her fingers and with a crochet hook. Ereth obtained representation from the Cascade Public Defender’s Office.
¶7 In September of 1995, at the suggestion of one of her public defenders, Ereth underwent a “sex offender evaluation.” She was evaluated by Lily Kravcisin (Kravcisin), a licensed professional counselor with Interconnections Counseling Group, Inc. (Interconnections). Kravcisin’s evaluation indicated that Ereth was willing to undergo counseling and psychotherapy to determine whether she was repressing memories of the offenses.
¶8 On December 6,1995, Ereth filed a signed plea agreement and a notice of acknowledgment and waiver of rights. The District Court issued an order stating that it would likely reject the agreement. Therefore, the State and Ereth entered into a second plea agreement. Under the terms of this agreement, Ereth agreed to enter an Alford plea to two counts of felony sexual assault. In return, the State agreed to recommend that Ereth receive a five-year sentence with three years suspended on each offense and to dismiss the two charges of felony sexual intercourse without consent and one felony assault charge. The agreement also stated: “The Court in it [sic] discretion may reject a waiver of the mandatory minimum for these charges and impose a sentence upon the Defendant of up to ten (10) years in the Montana State Prison with six (6) years suspended on both counts.”
¶9 This agreement and Ereth’s acknowledgment and waiver of rights were filed on February 5, 1996. Scott Albers (Albers), Chief Cascade Public Defender, wrote to the District Court, explaining that he could only convince Ereth to enter an Alford plea, not a guilty plea. Albers stated: “I do not believe that the defendant in this case is capable of admitting guilt. Although the facts of the case are against her the only plea which the defense will be able to bring forward is an Alford Plea.”
¶ 10 After filing the plea agreement, Ereth began sex offender counseling with Interconnections. On April 12, 1996, the District Court held a change of plea hearing. At the hearing, Ereth testified that she understood the nature of the proceedings and had received ample counseling from the Public Defender’s office regarding the options available to her. She described her understanding of an Alford plea as follows: “That I believe that the facts are overwhelming against me and I would be found guilty in a trial, but at this point I cannot admit to that guilt.”
¶ 11 Ereth testified that when she entered the Alford plea, she was not sure whether she committed the offenses charged. She stated:
Just in talking with the other members of my group [her Interconnections counseling group], I have come to believe that there is a possibility I could have done this. And I truly want to find out if I did do this. And that is my main goal right now in therapy.
Further, when'questioned by Albers, Ereth replied as follows:
Q: Is it your belief at this time that you may have committed the offenses involved and simply have blocked them out of your memory?
A: Yes, it is.
Q: Do you feel that’s a substantial possibility?
A: Yes, it is.
Q: And for that reason and that reason alone you’re unable to lay a factual basis yourself that you subjected these children to sexual contact?
A: Yes.
¶12 Debra Baumgart (Officer Baumgart), a deputy with the Cascade County Sheriff’s Department, testified regarding her videotaped interviews with J.A. and K.A. On the tape, J.A. and K.A. both describe being abused by Ereth. The State also introduced into evidence the report of Dr. Nancy Maynard, who performed a physical examination of the children. Dr. Maynard reported K. A. had vaginal tissue findings consistent with having been sexually abused.
¶13 Kravcisin also testified at the hearing. Kravcisin testified that Ereth was unable to remember the events surrounding this case, but that Ereth was horrified that she may have committed these crimes and wanted treatment. Kravcisin explained that she had been helping Ereth to explore her memory on both a conscious and unconscious level and that Ereth was close to “realizing” that she had abused J. A. and K.A. When asked by the District Court whether she had concerns about implanting false memories through hypnosis, Kravcisin replied, “I believe that for an untrained therapist, that a therapist can interogenically place into a client a memory...” but explained how the method she employed avoided implanting false memories.
¶14 Ereth then pled guilty to two counts of sexual assault and pled not guilty to one count of sexual assault and two counts of sexual intercourse without consent. The District Court entered the pleas and set sentencing for July 23, 1996.
¶15 On July 19,1996, Ereth filed a motion to withdraw her guilty pleas. In an attached affidavit, Ereth stated that she had always been uncomfortable about pleading and that through counseling, she had come to the “clear understanding” that she did not do the crimes with which she was charged. A hearing was held on the motion in October of 1996. Kravcisin again testified at the hearing. She stated that Ereth had not received treatment since July 1996. When asked by the District Court if she still believed that Ereth had suppressed a memory of committing the abuse, Kravcisin replied: “I don’t know quite frankly if she’s suppressed it or not. I believe there’s a possibility that she could have. I have not yet, in the work that I’ve had with her, found that suppression.”
¶16 Ereth testified that she had never been comfortable with the plea. She stated that Albers had told her if she went to trial, she would go to prison, and that she thought that a jury would never believe that she did not commit the crimes. She stated that when she entered the plea, she did not believe that she was guilty of the crimes charged and did not understand that an Alford plea was an admission of guilt.
¶17 Regarding her therapy with Kravcisin, Ereth testified that she had entered therapy on the advice of Albers — “On the chance that I had committed these crimes and had repressed it, the therapy would, • would let me know that I had — you know, it would bring that out if I had committed it.” However, she testified that she never reached a point in therapy where she believed she had committed the offenses. Ereth stated that in May of 1996, she attempted suicide and, after being released from the hospital, told Kravcisin that she could no longer live with the fact that she had pled guilty to something she did not do.
¶18 The District Court denied Ereth’s motion, holding that Ereth had entered her plea voluntarily and intelligently. The court found that Ereth knew what she was doing when she entered her plea and had simply changed her mind. The District Court set sentencing for March 20, 1997 and ordered Ereth to undergo a psychiatric evaluation to determine, for purposes of sentencing, whether she was suffering from a mental disease or defect.
¶19 Ereth was evaluated by Dr. John Mendenhall (Dr. Mendenhall). Dr. Mendenhall filed a report with the District Court on March 18,1997. Dr. Mendenhall found that, unlike most female sex offenders, Ereth does not suffer from a psychotic disorder. He found that Ereth “suffers from no dissociative or other mental disorder which statutorily or psychiatrically ought to give pause to the Court in passing sentence.”
¶20 Dr. Mendenhall also sent a letter to the court, outlining the concerns he had about the treatment program at Interconnections. Dr. Mendenhall stated:
The reports from Interconnections Counseling are based on non-scientific tenets. The methods used by that facility are not scientifically valid. The contentions of that facility that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputable professional organization in the field of mental health.
The contention of Lily Kraviscin [sic] that false memories can be implanted is correct. Her further contention that they cannot be implanted, by virtue of her advanced methods of hypnosis, by her, is not.... The implantation of false memories is, actually, quite easy. ... 25% of normal adult research probands can be made to believe, without hypnosis, without therapy, after a single exposure to a single oral story, that they personally experienced the events of the story. This number, in children, by the bye, approaches 100%.
The notion that Dianne Ereth, or anybody else, may have committed sexual crimes and “repressed” their memory is unsupported by scientific evidence. There is no credible evidence that repression of memory of being the victim of sexual abuse can happen, much less for being the perpetrator. Even those who make their livings in the sexual abuse industry, in the face of scholarly research raising very serious questions about any human ability to “repress memory,” have largely abandoned the idea of “repressed memory.”
¶21 On March 19, 1997, the day before sentencing was to be imposed, Ereth moved the court to reconsider her motion to withdraw her guilty pleas based on Dr. Mendenhall’s opinions. She also alleged that she had been coerced into the entry of the guilty plea by her counsel from the Public Defender’s Office. Eric Olson, a Deputy Public Defender, moved to withdraw. The court held a hearing at which Dr. Mendenhall testified about his findings and opinions regarding Interconnections. The District Court granted counsel’s motion to with draw and stated that it would allow further briefing and a hearing on whether Ereth should be allowed to withdraw her Alford plea. J. Kim Schulke was appointed to represent Ereth.
¶22 A hearing was held on April 30, 1997. Ereth testified that Kravcisin had told her that only two percent of children who allege they have been sexually assaulted are lying and that it was likely that Ereth was simply repressing the memory. She stated that she was never informed by Albers or Kravcisin that, in the medical community, controversy surrounds the retrieval of repressed memories nor that it was not standard treatment. Ereth testified that had she known the information contained in Dr. Mendenhall’s letter and report, she never would have entered the pleas. She admitted, however, that she had agreed to plead guilty prior to starting counseling with Interconnections.
¶23 At the conclusion of the hearing, the District Court denied Ereth’s motion to withdraw her guilty plea. On June 13,1997, Ereth was sentenced to a term of five years, with three years suspended on each of the two counts, with the terms to be served consecutively. The court also ordered her to pay $10,000 restitution to the victims.
Standard of Review
¶24 We review a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177. We have held that the district court need not apply a particular rule or standard to determine whether to allow a defendant to withdraw his or her plea, but rather must consider each case “in light of its unique record.” Enoch, 269 Mont. at 11, 887 P.2d at 177 (citing State v. Radi (1991), 250 Mont. 155, 818 P.2d 1203).
Discussion
¶25 We balance three factors when considering a criminal defendant’s attempt to withdraw a guilty plea: (1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and (3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Enoch, 269 Mont. at 11-12, 887 P.2d at 177.
¶26 We have held that a plea is adequate where the court:
“examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the fact upon which his guilt is based.”
Enoch, 269 Mont. at 13, 887 P.2d at 178 (quoting State v. Mahoney (1994), 264 Mont. 89, 870 P.2d 65). In addition, “it is well-settled that a guilty plea must be a knowing and intelligent choice among the alternative courses of action open to the defendant.” Enoch, 269 Mont. at 13, 887 P.2d at 178 (citations omitted).
¶27 Thus, the purpose of inquiring into the adequacy of the court’s interrogation is to ensure that the defendant has been well advised and that he/she entered the plea knowingly, intelligently, and voluntarily. The United States Supreme Court has held that a plea of guilty must represent “a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ North Carolina v. Alford (1970), 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162. This Court will deem a guilty plea involuntary where it “appears that the defendant was laboring under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists that [s]he may have plead guilty to a crime of which [s]he is innocent.” State ex rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 511, 575 P.2d 65, 66.
¶28 In this case, the District Court’s interrogation of Ereth at the change of plea hearing was substantial. Further, in deciding Ereth’s motion to withdraw and motion for reconsideration, the court held three hearings at which it heard the testimony of Ereth and several other witnesses. The District Court followed the proper statutory procedure at the change of plea hearing, and Ereth testified that she had signed and understood an acknowledgment and waiver of rights. However, Ereth argues that because she was under the mistaken assumption that she may have committed the offenses for which she was charged and she would, through therapy with Kravcisin, be able to recover memories of the offense, her Alford plea was not a voluntary, knowing and intelligent choice. Despite the lengths to which the District Court went to ensure that Ereth understood the consequences of the Alford plea, Ereth was not well advised. We agree with Ereth that her plea was not voluntarily, intelligently and knowingly made.
¶29 Dr. Mendenhall testified that “[t]he contentions of [Interconnections] that hypnosis can be useful in cases of this sort are dead wrong, known to be dead wrong, and are disavowed by every reputa ble professional organization in the field of mental health.” Dr. Mendenhall told the District Court that “[t]he notion that Dianne Ereth, or anybody else, may have committed sexual crimes and ‘repressed’ their memory is unsupported by scientific evidence.” However, when the District Court asked Kravcisin about the validity of repressed memory therapy, Kravcisin indicated that such therapy could be dangerous in the hands of untrained persons, but not in her own. Kravcisin told the court that she believed that Ereth wanted to remember her abuse of J.A. and K. A. and was close to “realizing” that she had committed the crimes.
¶30 Throughout the country, mental health professionals and courts alike are condemning the use of repressed memory therapies such as those used by Interconnections. See Julie M. Kosmond Murray, Comment, Repression, Memory, and Suggestibility: A Call for Limitations on the Admissibility of Repressed Memory Testimony in Sexual Abuse Trials, 66 U. Colo. L. Rev. 477 (1995); Douglas R. Richmond, Bad Science: Repressed and Recovered Memories of Childhood Sexual Abuse, 44 U. Kan. L. Rev. 517 (1996). However, our purpose here is not to discredit Kravcisin or her theory, but merely to suggest that with knowledge of the substantial amount of controversy which surrounds repressed memory therapy or of Dr. Mendenhall’s opinion that sexual abusers do not repress memories of their crimes, Ereth may have chosen not to enter her plea. However, Ereth was never told of the problems with Interconnections’ methods. Rather, she entered therapy on the advice of counsel. Further, Ereth was told by Kravcisin that because only two percent of children lie about being assaulted, it was likely that she was repressing memories of assaulting J.A. and K.A. and needed to recover those memories so she could get well.
¶31 At the change of plea hearing, Ereth testified that she could not recount the facts surrounding the sexual assault of J.A. and K.A. because, although she believed there was a substantial possibility she may have committed the offenses, she must have blocked them out of her memory. She testified that, “in talking with the other members of my group, I have come to believe that there is a possibility I could have done this.”
¶32 The State contends that Ereth entered the plea simply because she knew that if she went to trial, a jury would convict her. The State points out that at the change of plea hearing, Ereth testified: “I believe that the facts are overwhelming against me and I would be found guilty in a trial....” It is possible that Ereth entered an Alford plea simply because she thought the State had overwhelming evidence to convict her and then, after changing her mind, sought to withdraw the plea. However, it is also possible that Ereth truly believed that she had repressed any memory of committing the offenses for which she was charged and hoped, through therapy with Interconnections, she would be able to recover those memories and get help. We have held that “if there is any doubt that a guilty plea was not voluntarily or intelligently made, the doubt must be resolved in favor of the defendant.” Enoch, 269 Mont. at 18, 887 P.2d at 181. Given the role that repressed memory therapy played in Ereth’s decision-making process and given the air of uncertainty regarding the validity of this therapy, there is at least doubt as to whether Ereth’s Alford plea was entered voluntarily. Thus, we determine that Ereth’s pleas were not voluntarily, knowingly and intelligently made and that the first consideration set forth in Enoch, 269 Mont. at 11-12, 887 P.2d at 177, weighs in Ereth’s favor.
¶33 The second consideration under Enoch, 269 Mont. at 12, 887 P.2d at 177, is the promptness with which the defendant attempted to withdraw the pleas. “Because each case presents its own unique factual circumstances, we have declined to adopt specific parameters defining the timeliness of a motion to withdraw.”Enoch, 269 Mont. at 12, 887 P.2d at 178. In this case, Ereth filed her signed plea agreement and waiver of rights on February 5,1996 and began counseling with Interconnections that month. The change of plea was entered on May 9,1996. Ereth filed her notice of withdrawal of guilty plea on July 19, 1996, a few days before the date on which sentencing was set and ceased further counseling with Interconnections. Apparently, Ereth determined that the repressed memory therapy was not working within that period of time and promptly moved to withdraw her plea. We determine that, given the unique factual circumstances of this case, Ereth’s motion was filed in a reasonably prompt manner. Thus, this factor weighs in favor of allowing Ereth to withdraw her plea.
¶34 The third factor, whether the plea was given in exchange for dismissal of another charge, weighs against Ereth. The State agreed to dismiss two counts of sexual intercourse without consent and one count of sexual assault and waive the mandatory minimum sentence for the remaining charges in exchange for Ereth’s Alford plea. However, since we have determined that Ereth’s plea was not voluntarily, knowingly and intelligently made, we hold that the District Court abused its discretion in refusing to allow Ereth to withdraw her Alford plea.
¶3 5 Ereth also argues that the District Court erred in refusing to allow her to withdraw her plea because she received ineffective assistance of counsel. Because we hold that the District Court abused its discretion in refusing to allow Ereth to withdraw her plea, we will not address this argument.
¶36 Based on the foregoing, we reverse and remand.
CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, TRIEWEILER and HUNT concur.
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Mark Edward Walker appeals an order of the District Court for the Eighth Judicial District, Cascade County, denying Walker’s Petition for Postconviction Relief. Walker had alleged in his petition that he was the victim of cruel and unusual punishment at the hands of Montana State Prison (MSP) officials. We reverse and remand for further proceedings consistent with this Opinion.
¶2 We address the following issues on appeal:
¶3 1. Whether Walker’s appeal is moot because he has been released from custody.
¶4 2. Whether Walker sought relief in an appropriate proceeding within his Petition for Postconviction Relief.
¶5 3. Whether “Behavior Management Plans” constitute cruel and unusual punishment when such plans exacerbate an inmate’s mental I health condition. I
Factual and Procedural Background
¶6 On December 13,1994, Walker was charged in Cascade Count; with felony forgery, arson, and two counts of criminal mischief. Walker admitted forging his brother’s signature on several checks. The other two charges stemmed from a fire started on a tarp covering a motorcycle in his parents’ garage. Walker claimed that the fire was an accident.
¶7 At the time, Walker had been diagnosed with Attention Deficit Hyperactive Disorder (ADHD) for which he was taking Ritalin. Walker pleaded guilty to negligent arson and felony forgery on July 25,1995, in exchange for dismissal of the criminal mischief charges. On December 18,1995, the District Court sentenced Walker to five years with the Department of Corrections with all five years suspended. Walker subsequently violated the terms of his probation and the State filed a petition to revoke his suspended sentence.
¶8 While awaiting revocation proceedings, Walker absconded. He was arrested in Colorado on December 29,1997, on a charge of giving false information to a pawn broker. Walker remained incarcerated in Colorado until November 6,1998, when he was extradited to Montana.
¶9 While incarcerated in Colorado, Walker underwent a mental health evaluation and was diagnosed with Hebephrenic Schizophrenic Disorder. That diagnosis was later changed to Bipolar Disorder. Between April 19, 1998, and November 6, 1998, the psychiatric staff of the Colorado Department of Corrections prescribed various medications to treat Walker’s mental disorder. They eventually settled on a regimen which included Lithium. Walker was taking 300 milligrams of Lithium three times a day for a total of 900 milligrams each day. For the seven months Walker was taking Lithium while incarcerated in Colorado, the staff reported that his mood was more predictable and he did not receive any major disciplinary write-ups.
¶10 On November 6,1998, Walker was transported from Colorado to the Cascade County Detention Center. On December 8, 1998, after a hearing, the District Court revoked Walker’s suspended sentence and resentenced him to five years with the Department of Corrections. Walker was transferred to MSP on February 5, 1999.
¶11 Walker is six feet two inches tall. Because he is hypoglycemic, Walker has difficulty keeping on weight. At the time of the hearing on his petition for postconviction relief, Walker weighed 140 pounds. While incarcerated, his weight fluctuated from a high of 155 pounds while in Colorado, to a low of 129 pounds while locked down in maximum security (Max) at MSP. In addition, Walker is legally blind. The vision in his left eye measures 1/100, while the vision in his right eye measures 20/80. Walker does not have peripheral vision. Besides his regular corrective lenses, Walker uses a “funnel scopic lens” on top of his glasses which acts like binoculars.
¶12 Walker also suffers from a nystagmus problem which makes both of his eyes twitch constantly and forces him to turn his head to the side when speaking to other people. Also, Walker’s mode of speech is “pressured,” meaning that his speech and thought processes are so rapid that it is difficult to keep up with him. A prison psychologist described Walker’s thoughts as coming out like “a fire hose rather than a garden hose” and that it was difficult to slow or stop the stream of thought, “like trying to cap a fire hydrant while it’s flowing.”
¶13 While at the Cascade County Detention Facility, Walker was taking his Lithium only sporadically. On February 5, 1999, Walker’s first day at MSP, the intake officer described him as quiet, timid and cooperative. In his intake form, Walker notified MSP that he had been diagnosed as Bipolar and that he was receiving Lithium for his condition. On February 10, 1999, Walker notified MSP staff psychiatrist, Dr. David Schaefer, that he was experiencing stomach pains due to the Lithium. He requested that a snack be provided to accompany his medication and alleviate the nausea associated with taking his Lithium. Walker also requested that Dr. Schaefer review his medical records. Shortly after these requests, Walker stopped taking his Lithium. Thereafter, Walker’s behavior showed a progressive decline.
¶14 For the first six months after his arrival at MSP, Walker averaged only two severe disciplinary infractions a month. Then, in August 1999, Walker was moved to Max after he broke a sprinkler head and claimed that he had swallowed it. For the next six months, Walker averaged eleven severe disciplinary infractions a month. According to various correctional officers, Walker had transformed from a timid and quiet inmate into an excited, belligerent, hostile, disruptive and suicidal inmate.
¶15 The officer who initially processed Walker on his arrival at MSP, later observed that Walker was refusing to eat and was losing a lot of | weight. Although that officer said he tried to convince Walker to eat, Walker refused claiming that the slot that his food was passed through I was filthy. Another officer testified that Walker would holler for hours, sometimes for the entire length of the officer’s eight-hour shift. Still I another officer reported that Walker was one of the most disruptive I inmates that he had seen in five years of working in Max. That officer I notified the mental health staff three or four times about Walker, but I he did not see any follow up. Other inmates reported that Walkerl would scream all night long and one inmate reported that Walker would pound continuously on his sink. An inmate housed near Walker described Walker’s moods as ranging from depressed and moody to “happy as shit.”
¶16 Other instances of Walker’s disruptive behavior consisted of spitting on officers; covering his cell walls with ketchup, mustard and mayonnaise; throwing his food tray out his food slot and onto the floor; covering his cell window to prevent officers from seeing in; and purposely flooding his cell. Walker also refused to comply with direct orders from the officers. On two occasions, officers had to use pepper spray on Walker and forcibly remove him from his cell.
¶17 Walker’s behavior culminated in three suicide attempts. On October 7,1999, Walker was evaluated by medical staff for swallowing a staple. The psychiatrist noted in his report following that incident that Walker was a chronic risk for self-harm. On October 8, 1999, Walker tried to hang himself with a sheet. And, on October 12, 1999, he tried to hang himself with his prison overalls.
¶18 Both the guards and the inmates quickly tired of Walker’s behavior. Hence, Walker was put on a series of Behavior Management Plans (BMPs). In its response brief on appeal, the State agreed with the characterization in Walker’s brief concerning the BMPs on which the prison placed Walker. These BMPs were characterized by Walker as follows:
¶19 BMPs are prison management tools using “a carrot-and-stick approach” of withdrawing and returning privileges based on conduct. BMPs are supposed to be “a tool of last resort” when all other options for discipline have been exhausted. To prevent abuse, BMPs cannot be initiated by a single guard, and are supposed to have other fail-safe measures in place, such as review by mental health staff.
¶20 BMPs are only implemented and completed in the A-block area of Max. A-block is a detention unit designed for disciplinary punishment. The inmates in A-block are only provided with the bare necessities. Each cell has a cement bed, a cement table or desk, a stainless steel sink, a stainless steel toilet and a stainless steel plate that serves as a mirror. None of these fixtures are removable. The cell has an intake vent and an exhaust vent to circulate air. The cell does not have a window to the outside, so no natural light enters the cell. There is a single light fixture in the ceiling and the guards control the lighting. The light remains on 12 to 16 hours a day. No recreation yard time is allowed for inmates in A-block.
¶21 BMPs further curtail the already restricted detention created in A-block and are designed to last 24 to 48 hours. BMPs are not meant to be therapeutic, they are used as a tool to manage dangerous behavior. If a BMP continues beyond a week, prison mental health services are supposed to conduct a formal review of the plan.
¶22 Walker was transferred to A-block on August 25,1999. While on A-block, MSP officials implemented five separate BMPS for Walker even though they conceded that Walker did not respond well to progressive discipline. Walker’s first BMP was initiated on September 6,1999, after he flooded his cell. This BMP lasted until September 11, 1999.
¶23 Walker was placed on another BMP on October 8,1999, after he attempted to hang himself with a sheet. The previous day, Walker swallowed a metal staple and attempted to block his window. On October 10,1999, Walker cut himself by breaking off a piece of his food tray and concealing the sharp piece in his cell. On October 12, 1999, Walker tried to hang himself with his coveralls, hence he was sent to the infirmary for several days. On October 18, 1999, Walker was returned to his cell in A-block. He was stripped of all of his clothing and put in his cell naked. He was not permitted to have bedding or a pillow and the water to his sink and toilet were turned off. The guards controlled the water and turned it on at regular intervals. Walker was given a “space” or “suicide” blanket consisting of two wool blankets sewn inside a canvas cover. Walker remained in his cell, naked, with only his suicide blanket for four days.
¶24 As part of the BMP, Walker was not allowed to have hot meals. Instead, he was provided with “finger food”-individually wrapped slices of meat and cheese served with bread. The guards would order Walker to the back of his cell and tell him to face the wall. They would then place the food on a slot in the door. Sometimes the food was wrapped in plastic and other times the officers would unwrap the food before placing it on the slot. This was the same slot where toilet cleaning tools and other cleaning supplies were passed through prompting Walker’s refusal to eat -unwrapped food placed on the slot claiming that the slot was filthy.
¶25 BMPs were only designed to last for 24 to 48 hours. On this BMP, Walker had to have 24 hours of clear conduct before clothing and other necessities would be returned to him. However, on October 20, 1999, Walker received additional write-ups for trying to block his cell window, thus no items were returned to him. On October 22, 1999; Walker’s mattress was returned to him and, on October 23, 1999, his pillow was returned to him. Walker was still naked and he receive another disciplinary write up for again trying to cover his window. On October 27,1999, prison officials returned control of the sink and toilet water to Walker. On October 28,1999, Walker began receiving regular hot meals served on a tray. On October 29, 1999, after eleven days of being naked in his cell, Walker received underwear, coveralls and thermal underwear. MSP officials then returned Walker to regular detention status.
¶26 On December 9, 1999, MSP officials forced Walker into a third BMP after Walker covered his cell window, threatened to harm himself, and flooded his cell block. Prison officials once again removed Walker’s clothing and placed him in his cell with only his underwear, a suicide blanket and a mattress. In this BMP, prison officials determined that Walker needed 72 hours of clear conduct, rather than the previously established 24 hours, before returning any basic items. This BMP ended on December 15,1999, when Walker was transported to Great Falls for a court date.
¶27 On January 1, 2000, prison officials commenced a fourth BMP against Walker because he wrote a threatening letter to MSP staff. Once again Walker was stripped naked and only given a suicide blanket to keep warm. Again, his access to water was restricted and he was given only finger foods. On January 12, 2000, MSP officials returned Walker’s mattress, and the following day, they returned his pillow. On January 15,2000, his clothing was returned. For two weeks, Walker had remained in his cell naked. MSP records indicate that while on this BMP, mental health staff did not review Walker’s mental health status every seven days as required by prison policy. Walker completed this BMP on January 18, 2000.
¶28 On February 26, 2000, MSP officials started Walker’s fifth BMP because Walker claimed to have taken some pills in another suicide attempt. All of Walker’s clothing and bedding were taken away. Walker was again forced to sleep naked on a concrete bunk with nothing but a suicide blanket for warmth for over a week. On March 4,2000, Walker’s mattress was returned to him. On March 5,2000, he received his pillow. On March 6, 2000, after nine days of being naked in his cell, MSP officials returned his coveralls. Walker completed this BMP on March 11, 2000.
¶29 Several correctional officers later testified that they noticed no difference in Walker’s behavior whether he was on or off a BMP. They also reported that the BMPs often failed to prevent further disruptive or dangerous behavior by Walker.
¶30 In January 2000, Walker, while on a BMP, filed a pro se petition with this Court. Because he was without any writing utensils or paper, Walker dictated his petition to a neighboring inmate. In his petition, Walker alleged that he was the victim of cruel and unusual punishment at the hands of MSP officials. He reported that while placed on “lock-up status,” his clothes were taken away, he was housed in a cell with human blood and waste, he was forced to sleep naked on a concrete slab without a mattress, his food was served in an unsanitary manner, and he was deprived of drinking water.
¶31 We treated Walker’s petition as a Writ of Mandamus and issued an Order on March 9, 2000, wherein we remanded the case to the Eighth Judicial District Court. We also ordered that counsel be appointed to investigate conditions of Walker’s imprisonment and, if warranted, file a petition for appropriate relief in the District Court. Pursuant to this Court’s Order, attorney Eric Olson commenced an investigation into the facts and circumstances of Walker’s allegations. On March 24, 2000, Olson filed, on Walker’s behalf, a Petition for Postconviction Relief in the District Court wherein he alleged irregularities in Walker’s sentencing. And, on May 26, 2000, Olson filed a Petition for Extraordinary Relief in this Court alleging that MSP had subjected Walker to cruel and unusual punishment. The two cases were eventually consolidated into one postconviction proceeding.
¶32 In his Memorandum in Support of Petition for Extraordinary Relief, filed on May 26,2000, Olson provided examples of the cruel and unusual punishment he noted as a result of his investigation. These included excessive use of force; depriving Walker of sanitary housing and exposing him to unsanitary conditions by forcing him to live in a cell that contained blood, feces, and other human excretory material; depriving Walker of food and water under the guise of a BMP; violating prison policies and procedures by tampering with Walker’s legal mail; badgering Walker in order to provoke punitive sanctions; inflicting sanctions on Walker solely for the purpose of punishment; subjecting Walker to threats of force; and holding Walker up to scorn and ridicule. Olson also suggested that Walker’s mental illness has been exacerbated by the conditions and treatment at MSP and he requested that an independent psychiatrist review any further BMPs to which the prison proposed to subject Walker.
¶33 Counsel for the Montana Department of Corrections (the Department) asked the District Court to disregard Walker’s Memorandum in Support of his Petition for Extraordinary Relief because Walker had not requested appropriate relief within the context of a petition for postconviction relief. Counsel argued that Walker did not meet any of the contingencies in § 46-21-101, MCA, the postconviction relief statute; that the District Court could not grant Walker the relief he requested in a petition for postconviction relief; and that the only appropriate proceeding for Walker’s claims of cruel and unusual punishment was a civil rights action. The District Court denied the Department’s request.
¶34 The District Court heard testimony in this case on ten separate days in August, September and October, 2000. The court also received testimonial video depositions of MSP inmates who witnessed and corroborated the information provided by Walker and his attorney. On February 14, 2001, the court issued its Findings of Fact, Conclusions of Law and Order wherein the court determined that Walker had not met his burden of proof to succeed on any of the issues in his petition for postconviction relief and that Walker was not subjected to cruel and unusual punishment under either the Eighth Amendment to the United States Constitution or Article II, Section 22 of the Montana Constitution. Hence, the court denied all relief requested by Walker.
¶35 Walker now appeals the District Court’s conclusions of law that the prison’s BMPs and the conditions in A-block do not constitute cruel and unusual punishment. Walker was discharged from MSP on August 10, 2001, after he filed his notice of appeal. He has completely discharged his sentence and is not on probation or parole. Consequently, the State moved to dismiss Walker’s appeal as moot. In an Order dated September 18, 2001, we denied the State’s motion as premature because Walker had not yet filed his brief on appeal. However, we denied that motion “without prejudice to the State’s right to renew its motion after the issues on appeal are more clearly defined.” The State has again raised that issue in its Response brief on appeal.
Standard of Review
¶36 We review a district court’s denial of a petition for postconviction relief to determine whether that court’s findings are clearly erroneous and whether its conclusions of law are correct. State v. Thee, 2001 MT 294, ¶ 6, 307 Mont. 450, ¶ 6, 37 P.3d 741, ¶ 6.
Issue 1.
¶37 Whether Walker’s appeal is moot because he has been released from custody.
¶38 The State argues on appeal, that because Walker only appeals the issues related to the conditions of his confinement, there is no relief the court can grant him, thus, his appeal is moot. The State also argues that the facts of this case do not meet the criteria for an exception to the mootness doctrine because it is not capable of repetition while evading review.
¶39 Walker argues, on the other hand, that this case is not moot because his release from MSP has not freed him from the residual effects of his deteriorated mental state caused by his treatment at MSP. He also argues that this case warrants exception to the mootness doctrine because other inmates housed in Max, especially other mentally ill inmates, could be subjected to “the same filthy, inhumane conditions of confinement” as he experienced and the abuses endured by those inmates could escape review because those inmates fear retaliation by correctional officers.
¶40 Mootness is a threshold issue that must be resolved before we can address the underlying dispute. Grabow v. Montana High School Ass’n, 2000 MT 159, ¶ 14, 300 Mont. 227, ¶ 14, 3 P.3d 650, ¶ 14 (citing Shamrock Motors, Inc. v. Ford, 1999 MT 21, ¶ 17, 293 Mont. 188, ¶ 17, 974 P.2d 1150, ¶ 17). “A matter is moot when, due to an event or happening, the issue has ceased to exist and no longer presents an actual controversy. A question is moot when the court cannot grant effective relief.” Grabow, ¶ 14. We have recognized an exception to the mootness doctrine for controversies that are capable of repetition, but that may evade review. Common Cause v. Statutory Committee (1994), 263 Mont. 324, 328, 868 P.2d 604, 606-07; Butte-Silver Bow Local Gov’t v. Olsen (1987), 228 Mont. 77, 82, 743 P.2d 564, 567.
¶41 This Court “reserves to itself the power to examine constitutional issues that involve the broad public concerns to avoid future litigation on a point of law.” In re Mental Health of K.G.F., 2001 MT 140, ¶ 19, 306 Mont. 1, ¶ 19, 29 P.3d 485, ¶ 19 (quoting In re N.B. (1980), 190 Mont. 319, 322-23, 620 P.2d 1228, 1230-31, superseded in part by statute as stated in In re J.M. (1985), 217 Mont. 300, 304-05, 704 P.2d 1037, 1040). In In re N.B., N.B. was involuntarily committed to Warm Springs State Hospital for three months of evaluation and treatment. We concluded in that case that important constitutional questions were not rendered moot by N.B.’s release from Warm Springs. In re NB., 190 Mont. at 322-23, 620 P.2d at 1231.
¶42 In like manner, in K. G.F., a woman was involuntarily committed to a mental health facility. She contended that she was denied effective assistance of counsel during the course of the commitment proceedings. We concluded inN. G.F. that the controversy was not moot even though K.G.F. was no longer subject to the 90-day commitment order because the claimed constitutional right to effective assistance of counsel in civil involuntary commitment proceedings is “capable of repetition, yet evading review.” K.G.F., ¶ 20 (citation omitted).
¶43 Walker maintains, and we agree, that similarly to K.G.F., this case involves constitutional questions. We phrase the first question as: Whether MSP disciplinary techniques rise to the level of cruel and unusual punishment when such conditions exacerbate an inmate’s mental health condition. We phrase the second question as: Whether the use of BMPs in the manner described and the living conditions on A-block violate an inmate’s inviolable right to human dignity under Article II, Section 4 of the Montana Constitution. Both questions implicate fundamental constitutional rights and as long as the current prison policies are in place, the problems will repeat themselves.
¶44 Moreover, the problems involved could otherwise evade review because BMPs are intended to last only a few days, barely enough time to file a complaint let alone for the issue to come before this Court. Nevertheless, the State argues that the District Court cannot grant the relief that Walker seeks because he is not now, nor will he be in the foreseeable future, subject to the prison’s BMPs and any ruling from this Court would be advisory only. However, MSP continues to use BMPs and there is no doubt that they could again be used in the context of inmates with serious mental health problems, such as Walker.
¶45 Accordingly, we hold that Walker’s appeal is not moot merely because he has been released from custody.
Issue 2.
¶46 Whether Walker sought relief in an appropriate proceeding within his Petition for Postconviction Relief.
¶47 The State argues that the District Court was incorrect in concluding that a postconviction relief proceeding is an appropriate proceeding in which Walker could raise issues about the conditions of his confinement. Since Walker brought his claims in a petition for postconviction relief, the State contends that pursuant to § 46-21-101, MCA, the District Court did not have the ability to award Walker the relief he sought, but could only vacate, set aside, or correct the sentence. Contrary to the State’s contentions, Walker argues that whether a postconviction relief proceeding is appropriate here is not subject to review at this juncture because the State failed to raise that issue by way of a cross-appeal.
¶48 “In order to preserve an issue not raised by an appellant, a respondent must file a notice of cross appeal.” Billings Firefighters Local 521 v. City of Billings, 1999 MT 6, ¶ 31, 293 Mont. 41, ¶ 31, 973 P.2d 222, ¶ 31 (citing Gabriel v. Wood (1993), 261 Mont. 170, 178, 862 P.2d 42, 47). In addition, we noted in Joseph Eve & Co. v. Allen (1997), 284 Mont. 511, 514, 945 P.2d 897, 899, that
this Court has long held that the time limits for filing an appeal are mandatory and jurisdictional. “An appellant has a duty to perfect its appeal in the manner and time provided in Rule 5. Absent this compliance, this Court lacks jurisdiction to hear the appeal.” Foster Apiaries, Inc. v. Hubbard Apiaries (1981), 193 Mont. 156, 159, 630 P.2d 1213, 1215 (citing Price v. Zunchich (1980), 188 Mont. 230, 612 P.2d 1296).
In a similar fashion, this Court has held that the failure to properly file a cross appeal precludes this Court from addressing the issues raised in the cross appeal. [Emphasis added.]
¶49 Moreover, we have repeatedly stated that although Rule 14, M.R.App.P., “provides for review of matters by cross-assignment of errors, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of matters separate and distinct from those sought to be reviewed by appellant.” Joseph Eve & Co., 284 Mont. at 514, 945 P.2d at 899 (quoting Mydlarz v. Palmer / Duncan Const. Co. (1984), 209 Mont. 325, 334, 682 P.2d 695, 700). See also Baldwin v. Orient Express Restaurant (1990), 242 Mont. 373, 377, 791 P.2d 49, 51; Tigart v. Thompson (1989), 237 Mont. 468, 475, 774 P.2d 401, 406; Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268; Francisco v. Francisco (1948), 120 Mont. 468, 470, 191 P.2d 317, 319.
¶50 Accordingly, we hold that this issue is not properly before us, hence we will not address it.
Issue 3.
¶51 Whether BMPs constitute cruel and unusual punishment when such plans exacerbate an inmate’s mental health condition.
¶52 The District Court determined that Walker had not met his burden of proof to succeed on any of the issues in his petition for postconviction relief and that Walker was not subject to cruel and unusual punishment under either the Eighth Amendment to the United States Constitution or Article II, Section 22 of the Montana Constitution. Hence, the court denied all relief requested by Walker.
¶53 The State argues on appeal that the District Court was correct in concluding that MSP’s treatment of Walker did not amount to cruel and unusual punishment. The State maintains that MSP did not deliberately disregard an excessive risk to Walker’s health or safety, but only made an informed decision to employ BMPs to try to control Walker’s aberrant, disruptive, and dangerous behavior.
¶54 Walker argues, on the other hand, that the District Court erred in failing to find that imposing BMPs on mentally ill inmates amounts to cruel and unusual punishment in violation of the cruel and unusual punishment provisions of both the Eighth Amendment and Article II, Section 22 of the Montana Constitution. The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Article II, Section 22 is nearly identical.
¶55 Walker also argues that the District Court erred by failing to apply the “deliberate indifference test” appropriately to BMPs. He maintains that pursuant to the United States Supreme Court’s decision in Farmer v. Brennan (1994), 511 U.S. 825, 842, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811, the deliberate indifference test provides that “an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.”
¶56 Madrid v. Gomez (N.D. Cal. 1995), 889 F.Supp. 1146, sets forth the standard for determining deliberate indifference as it applies to improper psychological or psychiatric care in violation of the Eighth Amendment. First, the inmate- must demonstrate that “the levels of medical and mental health care are constitutionally inadequate from an objective standpoint-based on either a ‘pattern of negligent conduct’ or ‘systematic deficiencies.’” Second, the inmate must show that the correctional institution “knew the risk to inmate health” due to this inadequacy, and “acted with disregard for this risk.” In short, a plaintiff must show that the defendants “‘consciously disregarded]’ a substantial risk of serious harm to plaintiffs’ health or safety.” Madrid, 899 F.Supp. at 1256 (citing Farmer, 511 U.S. at 840-41, 114 S.Ct. at 1980).
¶57 While at MSP, Walker was evaluated by four psychological experts. Dr. David Schaefer, MSP staff psychiatrist, was informed as early as February 20,1999, that Walker complained of stomach pains associated with taking Lithium. Nevertheless, Dr. Schaefer did not evaluate Walker until March 11, 1999. That evaluation lasted less than 30 minutes. By that time, Walker had discontinued taking his Lithium because of the stomach problems he experienced. Consequently, Dr. Schaefer discontinued prescribing Lithium for Walker without reviewing Walker’s medical records and without completing any psychological testing. He concluded that Walker did not have a serious mental illness, but rather an antisocial personality with narcissistic traits, typical with the things Dr. Schaefer sees at the prison on a daily basis.
¶58 On October 7, 1999, Dr. Schaefer evaluated Walker again after Walker swallowed a staple. Dr. Schaefer reported that Walker was at chronic risk for self harm, but, hopefully, he “will fall short of killing himself.” Dr. Schaefer then ordered that Walker be returned to Max. Dr. Schaefer evaluated Walker once again on May 8, 2000, at the request of the prison medical director. He concluded that Walker was not Bipolar.
¶59 Dr. Andrew Schoening, a psychologist who worked at MSP along with Dr. Schaefer, also diagnosed Walker with antisocial personality disorder. He concluded that Walker fit into the category of a “self-mutilator.” At the hearing on Walker’s petition for postconviction relief, Dr. Schaefer explained that self-mutilators in a prison context usually injure themselves to obtain transfer to a less restrictive setting. He concluded that Walker was harming himself in an attempt to control the situation even though Walker’s self harm always placed him in a more restrictive setting. Dr. Schoening also concluded that Walker’s behavior, such as yelling all night long and then being assaulted by the inmate he was yelling at, was not psychotic, but just poor judgment.
¶60 Dr. William Stratford, a private, board-certified psychiatrist with sub-specialties in forensic and correctional psychiatry, was asked by Walker’s attorney to evaluate Walker’s current diagnosis of mental health; the possibility that Walker may have suffered from fetal alcohol syndrome; and Walker’s mental state at the time he committed the crimes that sent him to MSP. Dr. Stratford met with Walker on February 17 and 18,2000, and administered several mental evaluation tests. He also reviewed all of Walker’s medical records and interviewed Walker’s family.
¶61 Based on his evaluation, Dr. Stratford concluded that Walker suffers from Bipolar Disorder. He also diagnosed Walker with a mixed personality disorder which severely hampers his social and occupational functioning. Dr. Stratford further concluded that while Walker was probably suffering from a mental disorder at the time he committed the crimes, there was no evidence that Walker did not have the capacity to act with purpose or knowledge.
¶62 Dr. Stratford opined that Walker had been properly treated for mental illness while in the Colorado correctional system, but that he was neglected while at MSP. In Colorado, treating physicians reported that the Lithium effectively controlled Walker’s moods and behaviors. In Montana, Walker was not taking Lithium and he received more than 100 disciplinary write-ups. Dr. Stratford criticized MSP’s treatment of Walker stating that it had fallen so far below the standard of care that it was negligent and scandalous. Dr. Stratford said MSP officials were too eager to label Walker as a bad person rather than seriously mentally ill. According to Dr. Stratford, MSP officials didn’t adequately treat Walker, but they continued to discipline him, consequently “the guy got worse and worse and worse.”
¶63 Dr. Terry Kupers, is a board-certified psychiatrist specializing in correctional psychology. He has a private practice in California and he is a professor at the Wright Institute in Berkeley, California. At one time, Dr. Kupers served as a consultant to the United States Department of Justice. At the hearing on Walker’s petition, the District Court recognized Dr. Kupers as an expert in psychiatry, forensic psychiatry and mental illness in a prison setting. Dr. Kupers has published numerous articles and books on the subject of mental health in prisons. In his work as an expert, Dr. Kupers has evaluated over 16 state and federal prisons in California, three prisons in Indiana, five prisons in Michigan, a Pennsylvania super-max unit, several prisons in Washington and numerous jail facilities.
¶64 In preparation for evaluating Walker, Dr. Kupers reviewed his medical and psychological records from Montana and Colorado, Dr. Stratford’s evaluation, various legal documents related to the case, inmate depositions regarding Walker’s behavior, and Walker’s prison disciplinary record. He also personally interviewed Walker.
¶65 Dr. Kupers concluded that it was “absolutely clear” that Walker suffers from a serious mental illness, most likely Bipolar Disorder. He testified that “Mr. Walker has one of the clearest records I’ve seen of someone with serious mental illness.” Dr. Kupers also testified that it was “inexcusable” that Walker was not on medications considering they were effective in the past. He concluded that the diagnosis from MSP’s mental health staff that Walker did not have a mental illness was “preposterous” and fell below the ethical standards for practicing medicine in this field.
¶66 Dr. Kupers also discussed the psychological harm caused by placing inmates in a severely restrictive setting for nearly 24 hours a day. He stated that when placed in maximum security units, normal prisoners exhibit symptoms such as massive anxiety; acute confusion; paranoia; concentration and memory problems; and aggressive or self-destructive behaviors. Someone prone to psychotic episodes is likely to develop these symptoms, which will then often throw that person into a psychotic breakdown. Dr. Kupers testified that the restrictive BMPs imposed on Walker were the most counter-therapeutic, punitive and cruel plans that he had witnessed in all the states that he had reviewed. He stated: “If it’s a security program, I think it’s just cruel and inhumane. If it’s a treatment, it is ethically wrong and far below the standard in terms of all of the fields of mental health.”
¶67 Dr. Kupers further explained that leaving an inmate in a bare cell, naked, and forced to sleep on a concrete slab is humiliating, degrading, and extremely painful physically. His review of the records confirmed that segregation was absolutely not good for Walker and that if Walker had successfully killed himself after the staff psychologist returned Walker to segregation, no one would disagree that it was malpractice. He also opined that the current prison mental health providers were biased against Walker.
¶68 MSP did nothing to treat Walker. Rather, prison officials responded to Walker’s behavior by giving Walker well in excess of 100 disciplinary write-ups and placing him in disciplinary detention or “lock down” for six months. While in lock down, Walker was placed on a number of BMPs and with each successive BMP, Walker’s behavior got increasingly worse.
¶69 Walker was placed on one BMP after he made three suicide attempts on October 7, 8 and 12, 1999. Rather than rendering psychiatric or psychological treatment to Walker, prison officials placed him on a BMP and took away his mattress, pillow and all of his personal items including his clothing. This pattern continued when Walker again threatened self-harm and he was placed on another BMP on December 9, 1999. He received another BMP after threatening suicide in February 2000. Prison officials stated that BMPs are intended to manage dangerous behavior, they are not intended to be therapeutic. Walker’s suicide attempts did not result in psychiatric or psychological help. Instead, they resulted in BMPs which admittedly are not therapeutic and are not a substitute for mental health assistance.
¶70 Other Max inmates reported that Walker would scream and pound on objects in his cell for hours at a time, often for entire shifts. One inmate recalled an episode where, after being deprived of his clothing and underwear, Walker yelled for two days. Walker’s behavior was so aberrant that some Max inmates reported that Walker should have been placed in a psychiatric ward. However, prison officials chose to label Walker as a bad person rather than treat the mental health problems that were apparent to inmates and staff.
¶71 In Toussaint v. McCarthy (9th Cir. 1990), 926 F.2d 800, 801, cert denied, 502 U.S. 874, 112 S.Ct. 213, 116 L.Ed.2d 171 (1991), the Ninth Circuit Court of Appeals stated in regard to prisoners placed in administrative segregation:
These consolidated appeals involve a class of prisoners, who, as a class, are the toughest for a prison to handle. They are at the bottom of the social heap. They have, nonetheless, a human dignity and certain rights secured by the Constitution of the United States.
In addition, that same court stated in Felix v. McCarthy (9th Cir. 1991), 939 F.2d 699, 702, cert denied by Maxie v. Felix, 502 U.S. 1093, 112 S.Ct. 1165, 117 L.Ed.2d 412 (1992), regarding prisoner claims of excessive use of force:
These cases demonstrate that it is not the degree of injury which makes out a violation of the eighth amendment. Rather, it is the use of official force or authority that is “intentional, unjustified, brutal and offensive to human dignity.”
¶72 When the people of Montana ratified a new State Constitution in 1972, they recognized that all human beings have an innate dignity:
Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.
Art. II, Sec. 4, Mont. Const, (emphasis added).
¶73 In State v. Siegal (1997), 281 Mont. 250, 263, 934 P.2d 176, 183, overruled in part and on other grounds by State v. Kuneff, 1998 MT 287, 291 Mont. 474, 970 P.2d 556, we held that because Article II, Section 10 of the Montana Constitution explicitly grants to all Montana citizens the right to individual privacy, the Montana Constitution affords citizens broader protection at the hands of the government in search and seizure cases than does the federal constitution. Just as we read the privacy provision of the Montana Constitution in conjunction with the provisions regarding search and seizure to provide Montanans with greater protections from government intrusion, so too do we read the dignity provision of the Montana Constitution together with Article II, Section 22 to provide Montana citizens greater protections from cruel and unusual punishment than does the federal constitution. The federal constitution does not expressly provide for the right to human dignity.
¶74 We have repeatedly recognized the rights found in Montana’s Declaration of Rights as being “fundamental,” meaning that these rights are significant components of liberty, any infringement of which will trigger the highest level of scrutiny, and, thus, the highest level of protection by the courts. Dorwart v. Caraway, 2002 MT 240, ¶ 96, 312 Mont. 1, ¶ 96, 58 P.3d 128, ¶ 96 (Nelson, J., concurring) (citing Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311; Kloss v. Edward D. Jones & Co., 2002 MT 129, ¶ 52, 310 Mont. 123, ¶ 52, 54 P.3d 1, ¶ 52 (Nelson, J., concurring)).
¶75 Thus, while we will analyze most cruel and unusual punishment questions implicating Article II, Section 22 of Montana’s Constitution by reference to that section alone, in certain instances where Montana’s constitutional right to individual dignity (Article II, Section 4) is also specially implicated, we must, of necessity, consider and address the effect of that constitutional mandate on the question before us.
¶76 Walker agrees that the prohibitions against cruel and unusual punishment do not guarantee that he will not suffer from some psychological effects from incarceration or segregation, however, “if the particular conditions of segregation being challenged are such that they inflict a serious mental illness, greatly exacerbate mental illness, or deprive inmates of their sanity, then [prison officials] have deprived inmates of a basic necessity of human existence-indeed, they have crossed into the realm of psychological torture.” Madrid, 889 F.Supp. at 1264.
¶77 In addition to the problems associated with BMPs, Walker asserted that the living conditions in A-block were intolerable. Numerous inmates who resided in A-block testified about the filthy, uninhabitable cells. These inmates testified that the cells commonly had blood, feces, vomit and other types of debris in the cells they were forced to inhabit. One inmate recounted an instance where he was placed in a cell with human waste rubbed all over the walls and vomit in the corner. He claims the corrections staff ignored his complaints and told him to “live with it.”
¶78 Another inmate testified that he had bloodied a cell by smashing his head against the wall. His blood remained in the cell until Walker eventually inhabited the cell. After Walker was removed from that cell sometime later, the inmate who originally bloodied the cell was moved back in. He testified that the blood streaks and the words he previously had written in blood on the wall of . the cell remained unchanged.
¶79 Walker also complained that the correctional staff mishandled his food. Correctional officers passed the food through the same hatch in which toilet brushes and other cleaning supplies were passed through. While on a BMP, an inmate’s food consisted of bread, lunch meat and cheese. Often this food was placed on the dirty food hatch, unwrapped. Walker also contended that on several occasions, correctional officers threw his food into the cell onto the floor where it occasionally landed under the toilet and in one instance landing in the toilet. While correctional officers testified that these incidents never occurred, other A-block inmates testified that they had either seen it happen or had heard Walker complain when it happened. One inmate described life in A-block as follows:
My feeling of worth, you know, was just-I didn’t feel worth anything, you know, I didn’t want to-I didn’t want to carry on. When I finally went to the mental health block [in Max], I didn’t care whether I lived or died.
It’s-eating like a dog, eating your food off the ground, and really, you know, you don’t even feel human after a while ....
¶80 When any state, in the exercise of its police powers, receives an individual into its residential correctional systems as an inmate, it assumes responsibility for that person’s general well being and for his basic human needs-e.g., food, clothing, shelter, medical care, and reasonable safety. Helling v. McKinney (1993), 509 U.S. 25, 32, 113 S.Ct. 2475, 2480, 125 L.Ed. 2d 22.
¶81 Moreover, “[treatment which degrades or demeans persons, that is, treatment which deliberately reduces the value of persons, and which fails to acknowledge their worth as persons, directly violates their dignity.” Matthew O. Clifford & Thomas P. Huff, Some Thoughts on the Meaning and Scope of the Montana Constitution’s “Dignity” Clause with Possible Applications (Summer 2000), 61 Mont.L.Rev. 301, 307 (hereafter, Clifford). These authors went on to examine Montana’s dignity clause in the context of mentally ill individuals and prisoners:
[I]n the case of the mentally ill, basic human needs must be met, along with adequate opportunity to develop capacities, and adequate mental health care must also be provided to treat the illness. It is natural to speak of the inherent dignity of such developmentally disabled or mentally ill persons, and to speak of the requirement that such vulnerable persons be treated with dignity.
For those imprisoned for crimes, complementary application of the dignity clause would be more appropriate. The reformation and prevention functions of punishment both express the community’s disrespect for the actions of the criminal, but the processes of punishment must never disrespect the core humanity of the prisoner. Section 22 of Article II prohibits the infliction of cruel and unusual punishment on persons. Section 28 mandates “reformation” as one of the foundations of punishment for crimes. Part of what these rights proscribe and mandate should be informed by the complementary application of the dignity clause. However we punish, whatever means we use to reform, we must not punish or reform in a way that degrades the humanity, the dignity, of the prisoner. Protecting dignity should include, for example, security from physical harm, including security from sexual violation, by other prisoners or guards. It should also include attention to such basic human needs as adequate medical care, humane rules for visitation, adequate exercise, and adequate opportunity for education or other capacity-developing activity. Prisoners may not claim that their punishment, itself, violates the dignity clause, unless the conditions of that punishment violate the cruel and unusual punishment prohibition, and that violation might most easily be elaborated by asking whether the core humanity of the prisoner is being treated with dignity.
Clifford, pp. 331-32.
¶82 Our Constitution forbids correctional practices which permit prisons in the name of behavior modification to disregard the innate dignity of human beings, especially in the context where those persons suffer from serious mental illness. We cannot sanction correctional practices that ignore and exacerbate the plight of mentally ill inmates like Walker, especially when that inmate is forced to rely on the prison for his care and protection. The plain meaning of the dignity clause commands that the intrinsic worth and the basic humanity of persons may not be violated. Moreover, if the particular conditions of confinement cause serious mental illness to be greatly exacerbated or if it deprives inmates of their sanity, then prison officials have deprived inmates of the basic necessity for human existence and have crossed into the realm of psychological torture.
¶83 Walker is
part of a growing population of faceless, powerless, voiceless, warehoused people whose rights are paid lip service but rarely taken seriously by the institutions responsible for their custody. The only check on that indifference is the judiciary. Sometimes the system works. Sometimes it does not.... When the rights of even the most disrespected among us are ignored, all of society is diminished.
Campbell v. Mahoney, 2001 MT 146, ¶ 57, 306 Mont. 45, ¶ 57, 29 P.3d 1034, ¶ 57 (Trieweiler, J., dissenting) (internal citations omitted).
¶84 Accordingly, we hold that, reading Article II, Sections 4 and 22 together, BMPs and the living conditions on A-block constitute an affront to the inviolable right of human dignity possessed by the inmate and that such punishment constitutes cruel and unusual punishment when it exacerbates the inmate’s mental health condition. ¶85 We reverse and remand to the District Court for entry of an order requiring MSP to conform the operations of its administrative segregation units to the requirements of this Opinion and to report, in writing to that court within 180 days as to the actions taken. The District Court may, thereafter, order inspections or further remediation as in that court’s discretion is necessary under the circumstances.
JUSTICES REGNIER, COTTER, TRIEWEILER, LEAPHART and RICE concur.
|
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
¶ 1 David George (George) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on its order granting summary judgment to National Farmers Union Property and Casualty Company (Farmers) and denying his motion for summary judgment. We affirm.
¶2 The issue on appeal is whether the District Court erred in granting summary judgment to Farmers on the basis of its conclusion that George’s trailer was not a “utility trailer” for purposes of liability coverage under the Farmers policy.
BACKGROUND
¶3 On February 4,1997, Angela Arnold (Arnold) was driving along Monad Road in Billings, Montana, when she collided with a fifth wheel trailer owned by George. The trailer was parked on the shoulder of the road and was not attached to any other vehicle. Arnold subsequently filed an action against George seeking damages for bodily injury and property damage resulting from the collision.
¶4 George had an automobile liability policy issued by Farmers and he submitted a claim requesting coverage for any liability incurred as a result of Arnold’s accident. Farmers denied coverage and filed this declaratory judgment action requesting the District Court to determine that it had no obligation under the insurance policy at issue to either defend George or pay any damages awarded in Arnold’s action. George answered the declaratory judgment complaint, alleging that his fifth wheel trailer was covered by the Farmers liability policy, and counterclaimed against Farmers for attorney’s fees incurred in defending the declaratory judgment action, as well as costs and attorney’s fees incurred in defending Arnold’s action.
¶5 Both Farmers and George moved for summary judgment on the issue of whether George’s trailer was a covered vehicle under his Farmers policy. The District Court determined that George’s trailer was not a “utility trailer” as defined in the policy because it was not being towed by another vehicle at the time Arnold collided with it and, as a result, the trailer was not covered by the policy. Therefore, the court concluded that Farmers was not obligated to defend or indemnify George in the action brought by Arnold, granted summary judgment to Farmers and entered judgment accordingly. George appealed.
STANDARD OF REVIEW
¶6 We review a district court’s grant or denial of a summary judgment motion de novo, using the same Rule 56, M.R.Civ.P., criteria applied by the district court. Stutzman v. Safeco Ins. Co. of America (1997), 284 Mont. 372, 376, 945 P.2d 32, 34 (citations omitted). The moving party must demonstrate the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Stutzman, 284 Mont. at 376, 945 P.2d at 34. If the moving party meets this burden, the opposing party must come forward with evidence es tablishing the existence of genuine issues of material fact precluding summary judgment. Stutzman, 284 Mont. at 376, 945 P.2d at 34.
¶7 Here, the parties stipulated to the material facts of the case and, as a result, the only question before us is whether, under the terms of the insurance policy, Farmers was entitled to judgment as a matter of law. The interpretation of an insurance policy presents a question of law (Stutzman, 284 Mont. at 376, 945 P.2d at 34 (citations omitted)), and we review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Herron v. Schutz Foss Architects (1997), 282 Mont. 94, 98, 935 P.2d 1104, 1107.
DISCUSSION
¶8 Did the District Court err in granting summary judgment to Farmers on the basis that George’s trailer was not a “utility trailer” for purposes of liability coverage under the Farmers policy?
¶9 The only vehicle listed on the declarations page of the Farmers policy at issue is a 1988 Ford F250 supercab pickup truck. Thus, George’s trailer was not covered as an expressly insured vehicle. However, the policy’s liability coverage terms state that Farmers “will pay damages... arising out of the ownership, maintenance or use of a car or utility trailer.” It is undisputed that George’s trailer is not a “car” as defined under the policy. Consequently, in order to come within the liability coverage of the policy, George’s trailer must meet the policy’s definition of “utility trailer.” In that regard, the policy states that
“Utility trailer” means a vehicle designed to be towed by a private passenger car or farm car, including a farm wagon or farm implement, while towed by a private passenger car, utility car, or farm car.
¶ 10 The District Court determined that George’s fifth wheel trailer was not a “utility trailer” because it was not being towed by another vehicle at the time of the accident. On that basis, the court concluded that the trailer was excluded from coverage under the policy and Farmers was not obligated to defend or indemnify George in the action brought by Arnold. George argues that the District Court erred in concluding his trailer was not a utility trailer.
¶11 According to George, a utility trailer — as defined in the policy — means simply a vehicle designed to be towed by a private passenger car or farm car. He contends that the phrase “while towed by a private passenger car, utility car, or farm car” modifies only the pre ceding phrase “including a farm wagon or farm implement” and is not a requirement a trailer be in the process of being towed in order to be a utility trailer. Under George’s interpretation, a utility trailer is any vehicle designed to be towed by a passenger or farm car, and one variety of such a vehicle may be “a farm wagon or farm implement while towed by a private passenger car.” We disagree.
¶12 Several well-established principles guide our interpretation of insurance policies. If the language of a policy is clear and explicit, the policy must be enforced as written. Stutzman, 284 Mont. at 376, 945 P.2d at 34. “This Court is bound to interpret the terms of [the] insurance policy according to their usual, common sense meaning as viewed from the perspective of a reasonable consumer of insurance products.” Stutzman, 284 Mont. at 376, 945 P.2d at 34. Ambiguities are construed against the insurer and exclusions from coverage are construed narrowly because they are contrary to the fundamental protective purpose of insurance policies. Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356-57, 849 P.2d 190, 192.
¶13 It is clear from the policy language — and the parties do not dispute — that, in order to be a “utility trailer,” a vehicle must be “designed to be towed by a private passenger car or farm car....” The subsequent phrase “including a farm wagon or farm implement” is set off by commas and, as such, constitutes an expanded and clarified description of a vehicle designed to be towed. The policy definition then goes on to provide that a vehicle designed to be towed is a utility trailer only “while towed by” a private passenger, utility or farm car. George’s interpretation would require us to effectively disregard or delete the comma at the end of the “including a farm wagon or farm implement” clause, but our obligation to enforce clear and explicit policy provisions as written precludes us from doing so. The policy’s “while towed by” language clearly applies to all vehicles designed to be towed. Thus, a vehicle designed to be towed by a private passenger car or farm car is a utility trailer under the Farmers policy before us while being towed by such a car and, conversely, such a vehicle is not a utility trailer if it is not being towed.
¶14 Here, it is undisputed that George’s trailer was parked on the shoulder of the road at the time Arnold collided with it and was not being towed by, or otherwise attached to, any other vehicle. As a result, George’s trailer was not a “utility trailer” and was excluded from coverage under the policy.
¶ 15 George contends, however, that construing the utility trailer definition in this manner “results in completely absurd circumstances” and he presents several hypothetical scenarios under which he asserts liability coverage would be denied contrary to the reasonable expectations of the insured. Because our function is to interpret the law and apply it to the facts before us, we do not address George’s hypothetical scenarios. Moreover, our interpretation of the “utility trailer” definition does not preclude coverage for trailer vehicles under all circumstances, so as to potentially defeat the expectations of a reasonable insurance consumer, but precludes coverage only for those not being towed. In this regard, the policy is clear, explicit and unambiguous and must be enforced as written. See Stutzman, 284 Mont. at 376, 945 P.2d at 34. While the result may seem — and, indeed, be — harsh, that does not mean it is absurd. See Canal Ins. Co. v. Bunday (1991), 249 Mont. 100, 107, 813 P.2d 974, 978.
¶16 George also points out that the language of the policy obligates Farmers to pay damages “arising out of the ownership, maintenance or use of a car or utility trailer” and he argues therefrom that this express assumption by Farmers of liability for damages is not conditioned on the utility trailer being towed or otherwise attached to another vehicle at the time of the incident resulting in the damages. His argument is without merit. The coverage provision on which George relies includes the term “utility trailer.” That term is defined in the general definitions applicable to the entire policy and that definition contains the exclusion for trailer vehicles which are not being towed at the time the liability is incurred. Thus, replacing the term “utility trailer” in the coverage provision highlighted by George with the policy’s definition of the term, the provision requires Farmers to pay damages “arising out of the ownership, maintenance or use of a car or ‘a vehicle designed to be towed by a private passenger car or farm car ... while towed by a private passenger car, utility car, or farm car.’ ”
¶17 We conclude that the term “utility trailer” as defined in the Farmers policy at issue clearly means a vehicle designed to be towed by a private passenger car or farm car while being towed by such private passenger or farm car. We hold, therefore, that the District Court did not err in concluding that George’s trailer was not a “utility trailer” for purposes of liability coverage under the Farmers policy and in granting summary judgment to Farmers on that basis.
¶18 Affirmed.
JUSTICES NELSON, TRIEWEILER and REGNIER concur.
|
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CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Mikhail Y. Lesko (Lesko) appeals from the order of the Fourth Judicial District Court, Missoula County, affirming the conviction and sentence entered by the Missoula Municipal Court (Municipal Court). We affirm.
¶2 The issue on appeal is whether the District Court erred in concluding that the City of Missoula (City) did not fail to meet its discovery obligations and, on that basis, in affirming the Municipal Court.
¶3 Missoula Police Department officers cited Lesko into Municipal Court for driving under the influence of alcohol. After a pretrial conference, counsel for the City and for Lesko, as well as the Municipal Court judge, signed a pretrial order stating that the City had disclosed all evidence required by § 46-15-322, MCA.
¶4 At the outset of his bench trial, Lesko objected to evidence and witnesses to be offered by the City, beyond those included in a Notice of Intent to offer Montana Crime Laboratory reports and a related witness. He moved to exclude any other evidence against him on the basis that such evidence had not been disclosed as required by § 46-15-322, MCA, and the pretrial order. The Municipal Court denied the motion and, after a bench trial, convicted and sentenced Lesko.
¶5 Lesko appealed to the District Court, and the parties briefed the issue of whether the Municipal Court erred by allowing certain witnesses to testify without having been disclosed during discovery. The District Court affirmed the Municipal Court’s decision. Lesko appeals.
¶6 Did the District Court err in concluding that the City did not fail to meet its discovery obligations and, on that basis, in affirming the Municipal Court?
¶7 Appeals to district court from municipal court are limited to record reviews and questions of law. A “district court may affirm, reverse, or amend any appealed order or judgment....” Section 3-6-110, MCA. We review a district court’s conclusions of law-such as whether a statute or pretrial order was violated-to determine whether the conclusions are correct. See State v. McNally, 2002 MT 160, ¶ 5, 310 Mont. 396, ¶ 5, 50 P.3d 1080, ¶ 5.
¶8 Section 46-15-322, MCA, requires that, “[u]pon request,” a prosecutor must make available for examination and reproduction certain material and information within the prosecutor’s possession and control, including names, addresses, and statements of intended prosecution witnesses and “any evidence in the particular case....” In this regard, the first question on the pretrial order signed by the Municipal Court and both counsel is “Has prosecution disclosed all evidence required by M.C.A. 46-15-322.” The “yes” answer is marked with an “x.”
¶9 Lesko contends the City failed to disclose all its witnesses and other evidence in advance and, as a result of the City’s failure to meet its discovery obligations, he was entitled to have the undisclosed witnesses and evidence precluded from trial. With regard to the pretrial order, Lesko urges that, by signing the order, the City represented that everything required by § 46-15-322, MCA, had been disclosed and it could not present-and the District Court could not admit-additional evidence at trial. The City argues that, because its practice is to make all material in its file available to defense counsel in a criminal case, Lesko’s failure to “request” discovery or to exercise his right to view and copy the City’s case file is not the equivalent of a discovery abuse by the City. We previously have adopted the City’s position.
¶10 In State v. Matt (1990), 245 Mont. 208, 799 P.2d 1085, the defendant was convicted of domestic abuse and tampering with a witness. Matt, 245 Mont. at 209, 799 P.2d at 1086. He argued on appeal that, because the prosecution had violated the district court’s discovery order by not supplying him with certain statements and photographs until the eve of the trial, the district court should have declared a mistrial or forbidden the prosecution from utilizing the undisclosed evidence. Matt, 245 Mont. at 212, 799 P.2d at 1088. The prosecution contended that § 46-15-322(1), MCA, required it to “make available to the defendant for examination and production” the relevant documents, and that it had complied with the statute by allowing defense counsel full opportunity to examine its files. Matt, 245 Mont. at 212, 799 P.2d at 1088.
¶11 We determined that defense counsel’s failure to exercise the right to examine the prosecutor’s files “cannot form a basis to support [the defendant’s] contentions that the State willfully suppressed evidence or refused to abide by the trial court’s discovery order.” We further noted there was “no evidence that the State refused any request by defense counsel to examine any relevant evidence.” Matt, 245 Mont. at 212-13, 799 P.2d at 1088.
¶12 As in Matt, the record before us does not indicate-and Lesko does not assert-that he ever requested discovery from the City. The pretrial order indicated that the City had disclosed all evidence “required” by § 46-15-322, MCA, which, as set forth above, requires only that certain evidence be made available to the defendant “[u]pon request.” Matt is controlling here.
¶13 Lesko argues that he was improperly bound to the representations of the City, which signed the pretrial order indicating it had provided all discovery “required” by § 46-15-322, MCA. As discussed above, however, the statute only required the City to make available that which Lesko requested. Stated simply, since Lesko’s counsel also signed the pretrial order stating the City had provided the statutorily-required discovery, he cannot now be heard to assert that he was not also bound thereby.
¶14 Accordingly, we hold that the District Court correctly concluded that the City did not fail to meet its discovery obligations and, on that basis, correctly affirmed the Municipal Court.
¶15 Affirmed.
JUSTICES REGNIER, LEAPHART, COTTER and RICE concur.
|
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 David Theodore Morgan, Sr. (Morgan), pro se, appeals from the District Court’s order denying bis request for postconviction relief. We affirm. The two issues on appeal are the following:
¶2 1. Did the District Court err in concluding that Morgan did not receive ineffective assistance of counsel?
¶3 2. Did the District Court abuse its discretion in denying Morgan’s motion to withdraw his guilty plea?
Factual and Procedural Background
¶4 On June 24, 2000, while driving a stolen truck, Morgan engaged in a high-speed chase with Idaho police. During the chase, Morgan rammed a patrol vehicle, causing it to set on fire, and forced another patrol vehicle into a ditch. Morgan ultimately succeeded in eluding the Idaho police. Four days later, a detective with the Ravalli County Sheriffs Office noticed a pickup driving erratically through Hamilton. When officers attempted to approach the vehicle, Morgan began to speed north on Highway 93 during the beginning of the afternoon rush hour. During the chase, Morgan reached speeds in excess of 100 miles per hour and forced a number of vehicles off the road. Eventually, Morgan drove over a nail strip set by Montana Highway Patrol Officer Tom Hamilton (Officer Hamilton) and was forced to pull the vehicle off the highway. At that point, Morgan ran to a store and from behind a fence he shot at Officer Hamilton’s vehicle. One bullet passed through the vehicle’s door and hit Officer Hamilton in the right elbow before lodging itself in his bullet proof vest. Morgan also shot at two other officers attempting to capture him before he was shot in the knee and apprehended.
¶5 Following his arrest, Morgan was charged with eight felonies, including three counts of attempted deliberate homicide and two counts of assault with a deadly weapon. Larry Mansch (Mansch) of the Ravalli County Public Defender’s office was appointed to represent Morgan. In January 2001, Morgan entered into an open and nonbinding plea agreement. In exchange for Morgan’s plea of no contest to three counts of attempted deliberate homicide and one count of assault with a weapon, the State agreed to, and in fact did, amend the original information to charge four of the eight felony counts. The agreement contained the following bolded disclosure of the consequences of pleading guilty:
The Defendant understands that this is an open plea to the charges contained in the Amended Information. This means the judge is free to impose any sentence allowed by law for such crimes.... THE DEFENDANT UNDERSTANDS THAT THE MAXIMUM PENALTY FOR THE CHARGES TO WHICH HE IS PLEADING GUILTY IS 320 YEARS OR LIFE IMPRISONMENT
¶6 After ordering a presentence investigation, the District Court sentenced Morgan to three life sentences for the attempted deliberate homicide charges and 20 years for the assault charge. The Sentence Review Division, comprised of three Montana District Court judges, held a hearing in July 2001 to review Morgan’s sentence and Mansch again represented Morgan. The Division unanimously affirmed Morgan’s sentence. In February 2002, Morgan filed a petition for postconviction relief which the District Court denied.
Standard of Review
¶7 The standard of review of a district court’s denial of a petition for postconviction relief is whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Watson v. State, 2002 MT 329, ¶ 6, 313 Mont. 209, ¶ 6, 61 P.3d 759, ¶ 6; State v. Charlo, 2000 MT 192, ¶ 7, 300 Mont. 435, ¶ 7, 4 P.3d 1201, ¶ 7. Claims of ineffective assistance of counsel are mixed questions of law and fact for which our review is de novo. State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47; Iaea v. Sunn (9th Cir. 1986), 800 F.2d 861, 864. Discretionary rulings in postconviction relief proceedings, including rulings related to whether to hold an evidentiary hearing, are reviewed for an abuse of discretion. Watson, ¶ 6; State v. Hanson, 1999 MT 226, ¶ 9, 296 Mont. 82, ¶ 9, 988 P.2d 299, ¶ 9.
Discussion
I
¶8 Did the District Court err in concluding that Morgan did not receive ineffective assistance of counsel?
¶9 A petitioner seeking to reverse a district court’s denial of a petition for postconviction relief based on a claim of ineffective assistance of counsel bears a heavy burden. See Brown v. State (1996), 277 Mont. 430, 434, 922 P.2d 1146, 1148. When considering ineffective assistance of counsel claims in postconviction proceedings, this Court applies the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; see Hagen v. State, 1999 MT 8, ¶ 10, 293 Mont. 60, ¶ 10, 973 P.2d 233, ¶ 10. The Strickland test requires the defendant to show not only that his counsel’s performance was deficient, but that the deficient performance was prejudicial to the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Pursuant to Strickland, a defendant alleging ineffective assistance of counsel must demonstrate that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
¶10 A court’s scrutiny of counsel’s actions must be highly deferential, and counsel’s performance is strongly presumed to be within the wide range of reasonable professional assistance. See State v. Campbell (1996), 278 Mont. 236, 246, 924 P.2d 1304, 1311. When it is possible to dispose of an ineffective assistance of counsel claim based on the claim’s failure to establish that the defendant was sufficiently prejudiced, it is best to follow that course. Dawson v. State, 2000 MT 219, ¶ 21, 301 Mont. 135, ¶ 21, 10 P.3d 49, ¶ 21.
¶11 With these legal precepts in mind, we turn to Morgan’s claim of ineffective assistance of counsel. Morgan, who has the burden of proving that his counsel’s performance was deficient and prejudicial, bases his claim on three assertions: (1) counsel incorrectly advised him that the State did not have to prove an essential element of the homicide charge; (2) counsel incorrectly informed Morgan that the judge was “looking favorable” on him and would give him a light sentence if he pled guilty; and (3) counsel inadequately represented Morgan at the sentence review hearing. We review each assertion in turn.
¶12 First, Morgan claims that his counsel misinformed him that the State would not have to prove the element of intent on the attempted deliberate homicide charge, and that but for this misinformation, he would have taken his chances at trial and would not have entered a guilty plea. To this end, Morgan makes the incredible claim that the State would not have been able to prove that Morgan intended to kill Officer Hamilton because “the shots were fired at the door and not his window at his head.” Morgan’s assertion that the State could not have proven intent is incredulous in light of the evidence presented by the State at Morgan’s change of plea hearing. This evidence includes a videotape shot from the camera attached to Officer Hamilton’s patrol vehicle which depicts the high-speed chase and the officer’s voice the moment he was shot. As the District Court noted in its order denying Morgan postconviction relief, even if Morgan’s counsel had incorrectly advised Morgan of the elements to attempted deliberate homicide, “such a misrepresentation would have been superfluous, in light of the overwhelming evidence of Morgan’s actions and intentions in fleeing law officers and then firing at them.” Therefore, we agree with the District Court that Morgan’s claim fails the second prong of the Strickland test because no reasonable probability exists that Morgan would not have been found guilty of attempted deliberate homicide.
¶13 Secondly, Morgan claims that counsel informed him that the judge was “looking favorable” on him and would not give Morgan a harsh sentence if he pled guilty. Morgan contends that he based his decision to plead guilty on counsel’s assurance that the judge would go easy on him; however, this allegation runs contrary to the clear language of the plea agreement signed by Morgan on January 3,2001. Specifically, the agreement states that the plea is an open plea and that the “judge is free to impose any sentence allowed by law for such crimes.... THE DEFENDANT UNDERSTANDS THAT THE MAXIMUM PENALTY FOR THE CHARGES TO WHICH HE IS PLEADING GUILTY IS 320 YEARS OR LIFE IMPRISONMENT ....” The plea clearly stated that the judge was free to impose whatever sentence he believed appropriate. Even if Morgan’s counsel had informed him that the judge was looking favorably on him and would not impose a lengthy sentence, the plea agreement was explicit that the court made no promises about the length of sentence that Morgan would receive. Therefore, we conclude that this second allegation fails the second prong of Strickland. Any prejudice from counsel’s alleged comment regarding the court’s possible leniency was negated by the clear language of Morgan’s plea agreement.
¶14 Lastly, Morgan contends that his counsel inadequately represented him at the sentence review hearing; however, Morgan does not cite any specific instances of ineffectiveness at the hearing. Neither does Morgan provide the Court with a transcript of this hearing for our review. Rather, Morgan would have this Court infer counsel's ineffectiveness based on the fact that the two had had a heated argument the day before the sentence review hearing. Since Morgan has not identified what in particular was ineffective about his counsel’s performance at the hearing, we cannot determine whether or not he was prejudiced. We note that Morgan’s sentence fell squarely within the range of an acceptable sentence for the crimes committed. In conclusion, none of Morgan’s claims that he received ineffective assistance of counsel demonstrate that a “reasonable probability” exists that, but for counsel’s poor performance, Morgan would not have been found guilty and sentenced as he was. Therefore, we affirm the District Court’s denial of postconviction relief.
II
¶15 Did the District Court abuse its discretion in denying Morgan’s motion to withdraw his guilty plea?
¶16 Section 46-16-105(1), MCA, provides that “[a]t anytime before or after judgment, the court may, for good cause shown, permit the plea of guilty or nolo contendere to be withdrawn and a plea of not guilty substituted.” This Court has established three factors to be considered when determining whether “good cause” under § 46-16-105, MCA, exists to permit the withdrawal of a guilty plea: (1) the adequacy of the district court’s interrogation as to the defendant’s understanding of his plea; (2) the promptness of the motion to withdraw the prior plea; and (3) the fact that the defendant’s plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Mallak v. State, 2002 MT 35, ¶ 17, 308 Mont. 314, ¶ 17, 42 P.3d 794, ¶ 17; State v. Knox, 2001 MT 232, ¶ 11, 307 Mont. 1, ¶ 11, 36 P.3d 383, ¶ 11.
¶17 We apply these three factors to determine whether there was good cause to permit Morgan to withdraw his guilty plea. Usually, this Court would first look to the District Court’s interrogation of Morgan at the time of his plea; however, Morgan does not contend that he did not understand the plea agreement and consequently, has not provided the Court with a transcript of that hearing for our review. The second factor the Court considers is whether the defendant’s application for withdrawal of his plea occurred within a reasonable period of time. Section 46-16-105(2), MCA, permits the withdrawal of a guilty plea “any time before or after judgment;” however, as a general rule, the Comet considers a motion to withdraw a guilty plea untimely if it is filed over a year after entry of the plea. State v. Osterloth, 2000 MT 129, ¶ 24, 299 Mont. 517, ¶ 24, 1 P.3d 946, ¶ 24. This one-year limit is not a hard and fast rule, but rather a general guideline, and one for which exceptions will be made in exceptional circumstances. State v. Graham, 2002 MT 237, ¶ 18, 311 Mont. 500, ¶ 18, 57 P.3d 54, ¶ 18. Here, Morgan did not move to withdraw his guilty plea until some thirteen months after it was entered. Although Morgan is only one month outside of the one-year limit, no exceptional circumstances exist that warrant an exception to the rule. Therefore, we conclude that his application for withdrawal of his plea did not occur within a reasonable period of time.
¶18 The last factor that we consider is whether Morgan received a benefit in exchange for his plea agreement. Morgan was initially charged with eight felonies. In exchange for his pleading to the three counts of attempted deliberate homicide and one count of assault, the State dismissed four other felony charges. Undeniably, Morgan received a substantial benefit by having four felony charges against him dropped. After weighing the three factors, we conclude that Morgan’s plea of guilty was knowing and voluntary; therefore, Morgan did not establish good cause for withdrawing his plea. Affirmed.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, NELSON and RICE concur.
|
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CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 The First Judicial District Court, Lewis and Clark Comity, dismissed Debra L. Udelhoven’s petition for judicial review for lack of subject matter jurisdiction. Udelhoven appeals. We reverse and remand.
¶2 The issue is whether the District Court violated Udelhoven’s right to due process when it dismissed her petition because she failed to comply with the service requirements of § 40-5-253(4), MCA.
¶3 This is not the first time Udelhoven and Mark T. McGurran have come before this Court on matters relating to the support of their son. In 1999, we upheld the dismissal of Udelhoven’s petition for judicial review of an administrative child support order issued by the Child Support Enforcement Division of the Montana Department of Public Health and Human Services (CSED), on grounds that the petition was not timely filed in the district court. In re McGurran, 1999 MT 192, 295 Mont. 357, 983 P.2d 968 (McGurran I).
¶4 In February of 2001, the CSED entered a “modification consent order” concerning McGurran’s child support obligation. Udelhoven was notified that she could challenge the provisions of the order by requesting arbitration by April 2,2001. She requested arbitration and, on April 9, 2001, CSED denied her request on the basis that she had not timely filed it. The notice of denial of her request for arbitration further stated “Pursuant to MCA Title 2, Chapter 4, Part 7, you may file a Petition for Judicial Review of this final order within 30 days after service of this decision.”
¶5 On April 16, 2001, Udelhoven petitioned the Tenth Judicial District Court, Judith Basin County, for judicial review. Udelhoven initially served her petition for judicial review on CSED and on McGurran by mailing summons and copies of the petition to their attorneys on April 17, 2001. McGurran refused to accept service by mail and his attorney sent Udelhoven’s attorney a letter arguing that McGurran was not a proper party to the proceeding. At the same time, CSED moved to dismiss the petition on the basis that the Tenth Judicial District Court was an incorrect venue. The district court granted CSED’s motion, and Udelhoven appealed. On appeal, we determined the Tenth Judicial District Court was a proper place for trial and reversed and remanded for further proceedings. In re McGurran, 2002 MT 144, 310 Mont. 268, 49 P.3d 626 (McGurran II). ¶6 After our June 27, 2002 opinion in McGurran II, Udelhoven had McGurran personally served with a summons and copy of her petition on August 14, 2002. In September of 2002, the parties stipulated to change venue to the First Judicial District Court, Lewis and Clark County. McGurran then moved to dismiss Udelhoven’s petition for judicial review as to him, based on Udelhoven’s failure to properly serve him pursuant to the requirements of § 40-5-253(4), MCA, which requires that a petition for judicial review of a CSED child support order must be served upon CSED and each party within 30 days after the petition is filed. Udelhoven responded that she did not object to the dismissal of McGurran from the action.
¶7 In ruling on McGurran’s motion to dismiss, the District Court stated dismissing McGurran from the action would result in “a singular prejudice to McGurran, and not to the other parties.” The court then determined it did not have subject matter jurisdiction because Udelhoven had not complied with the § 40-5-253(4), MCA, service requirements. It reasoned that, pursuant to § 40-5-253(4), MCA, a district court does not obtain jurisdiction until a petition for judicial review is served on all parties within 30 days after it is filed and that, because Udelhoven filed her petition in the Tenth Judicial District Court on April 16, 2001, she needed to serve all parties no later than May 16, 2001. After stating that McGurran was not personally served with a summons and copy of the petition until long after the 30-day deadline, the District Court concluded it had no choice but to dismiss the action for lack of subject matter jurisdiction. Udelhoven appeals from the District Court’s dismissal of her petition.
Discussion
¶8 Did the District Court violate Udelhoven’s right to due process when it dismissed her petition because of her failure to comply with the service requirements of § 40-5-253(4), MCA?
¶9 The standards applicable to this Court’s review of a ruling on a motion to dismiss for lack of subject matter jurisdiction which allegedly violates a party’s constitutional right to due process are set forth in
Pickens v. Shelton-Thompson, 2000 MT 131, 300 Mont. 16, 3 P.3d 603:
We review a district court’s ruling on a motion to dismiss to determine whether the court abused its discretion. However, a court’s determination that it lacked subject matter jurisdiction is a conclusion of law which we review to determine whether the court’s interpretation of the law is' correct. Moreover, constitutional issues raise questions of law and our review of such questions is plenary.
Pickens, ¶ 7 (citations omitted).
¶10 Udelhoven analogizes her case to Pickens on both facts and the law. She urges that, pursuant to Pickens, the District Court’s order should be reversed.
¶11 In Pickens, child support obligor Pickens timely filed a petition for judicial review of a CSED child support order and mailed copies of the petition to the obligee and to CSED. CSED moved to dismiss for lack of jurisdiction because Pickens had failed to properly serve the parties as required by § 40-5-253, MCA. Pickens, ¶ 4. The district court granted the motion to dismiss, and Pickens appealed. Pickens, ¶ 6.
¶12 On appeal, we looked to the notice provisions in the administrative order. That order informed Pickens that he had a right to petition for judicial review under MAPA. Pickens, ¶ 9. We pointed out that a petition for judicial review under MAPA (that is, under Title 2, Chapter 4, Part 7, MCA) may be served by mailing copies of the petition to the agency and other parties and “there is no requirement that a summons be issued and served in conjunction with the petition.” Pickens, ¶¶ 3,10 (citation omitted). While recognizing that the specific service provisions of § 40-5-253, MCA, prevail over the general service provisions of MAPA, we held that, because the notice provided to Pickens implied that MAPA service requirements applied, application of the more stringent § 40-5-253, MCA, service requirements (requiring personal service with summons) would violate Pickens’ right to due process of law. Pickens, ¶ 21. We reasoned that Pickens’ reliance on the misleading information given to him in the notice resulted in his failure to properly serve his petition for judicial review and, ultimately, led to his being denied a meaningful opportunity to be heard. Pickens, ¶ 19. Under those circumstances, we held that the notice provided did not meet due process requirements. Pickens, ¶ 21. Consequently, we reversed the order of dismissal and remanded for further proceedings on Pickens’ petition for judicial review. Pickens, ¶ 23. On the face of it, Pickens appears comparable to the present case.
¶13 Pickens was not cited or relied upon in the District Court, where McGurran argued he was not a proper party to the proceedings and should be dismissed as a party. The District Court’s order dismissing Udelhoven’s petition for judicial review thus went beyond the remedy requested by McGurran. For that reason, it is appropriate to consider Pickens here.
¶14 McGurran first asserts that we should overrule Pickens because access to the court system from an administrative ruling is not a constitutionally protected fundamental right to which due process applies. He relies on Peterson v. Great Falls School Dist. (1989), 237 Mont. 376, 773 P.2d 316.
¶15 In Peterson, a school employee brought an action against her employer school district for wrongful discharge. This Court upheld the district court’s determination that the action was barred by § 2-9-111, MCA, and cases interpreting that statute, on the basis of legislative immunity. The Court also rejected the employee’s claim that the statute was unconstitutional because it violated her fundamental right to full legal redress. Peterson, 237 Mont. at 380, 773 P.2d at 318.
¶16 Peterson has no application here. First, Peterson predates Pickens by many years. Second, neither a due process issue nor a judicial review issue was addressed in Peterson. We conclude McGurran’s argument that Peterson provides a basis on which we should overrule Pickens is without merit.
¶17 McGurran also claims that, by failing to exhaust her administrative remedies and failing to file a timely request for arbitration, Udelhoven has not complied with MAPA or the statutory requirements for judicial review of a CSED child support order. See §§ 2-4-702(l)(a) and 40-5-253(1), MCA. He asserts that, where statutory conditions for jurisdiction have not been met, the district court is powerless to review the agency decision and a defense based on lack of subject matter jurisdiction may be raised at any time. We address these contentions in turn.
¶18 McGurran argued in the Tenth Judicial District Court that Udelhoven failed to exhaust her administrative remedies, but he did not cross-appeal that court’s rejection of his argument. By failing to cross-appeal the issue in McGurran II, McGurran has waived it.
¶19 The notice CSED provided to Udelhoven that she had a right to seek judicial review contradicts McGurran’s argument that there is no appealable final decision in a contested case. In addition, because McGurran did not raise this argument in the District Court, we decline to address it on appeal. See Pearson v. Virginia City Ranches Ass’n, 2000 MT 12, ¶ 57, 298 Mont. 52, ¶ 57, 993 P.2d 688, ¶ 57.
¶20 Finally, as to McGurran’s statement that a jurisdictional argument may be raised at any time, untimeliness of the request for arbitration would not be jurisdictional for purposes of seeking judicial review in the District Court; it would be jurisdictional only as to the request for arbitration. Udelhoven’s April 16,2001 petition for judicial review was filed well within the 30 days allowed after the April 9,2001 CSED order. Therefore, while untimeliness of the request for arbitration ultimately may be a reason for the District Court to affirm the denial of the arbitration request, it is not grounds for dismissal of Udelhoven’s petition for judicial review in the District Court on the basis of that court’s lack of subject matter jurisdiction.
¶21 Here, as in Pickens, CSED’s notice to Udelhoven concerning her right to seek judicial review implied that she could serve copies of her petition for judicial review pursuant to MAPA standards. For purposes of service under MAPA, it is sufficient to mail copies of the petition for judicial review to the parties and the agency. Sections 2-4-106 and - 702, MCA; Rule 5(b), M.R.Civ.P.; Hilands Golf Club v. Ashmore (1996), 277 Mont. 324, 332, 922 P.2d 469, 474. Therefore, Udelhoven’s original mailing of a copy of her petition to McGurran’s attorney-which has not been challenged as untimely-was sufficient service upon McGurran.
¶22 Udelhoven’s reliance on MAPA procedures was suggested by the language used in the notice CSED gave her of her right to petition for judicial review. That reliance resulted in her failure to properly serve her petition for judicial review and, ultimately, denial of a meaningful opportunity to be heard. For those reasons, we conclude that Pickens is controlling precedent here, and that dismissal of the petition for judicial review on the basis of failure to follow the § 40-5-253(4), MCA, service requirements would violate Udelhoven’s right to due process of law. Therefore, we hold that the District Court erred in dismissing Udelhoven’s petition for judicial review.
¶23 Reversed and remanded for further proceedings consistent with this Opinion.
JUSTICES NELSON, REGNIER, COTTER and RICE concur.
|
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CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Micheál John Drube (Drube) appeals from the order entered by the Twelfth Judicial District Court, Chouteau County, revoking the sentence imposed for his conviction for sexual intercourse without consent. We affirm.
¶2 We rephrase the issues as follows:
¶3 1. Did the District Court abuse its discretion in revoking Drube’s sentence?
¶4 2. Did the District Court err in sentencing Drube?
BACKGROUND
¶5 In 1998, Drube pleaded guilty to the felony offense of sexual intercourse without consent. Drube was sentenced to the Montana Department of Corrections (DOC) for five years, to be followed by a suspended sentence of seven years to the Montana State Prison (MSP). This Court’s Sentence Review Division (SRD) subsequently amended the sentence to a three-year commitment to the DOC, followed by a nine-year suspended sentence to the MSP. The amended sentence also included the conditions that Drube complete phases I, II and III of the sexual offender treatment program at a facility no less secure than a prerelease center during the three-year commitment to the DOC, and follow an aftercare program during the entirety of the suspended portion of his sentence.
¶6 In May of 2001, the State of Montana (State) petitioned the District Court to revoke the suspended portion of Drube’s sentence based on the allegation that Drube was due to discharge his three-year commitment to the DOC and had failed to complete all three phases of the sexual offender treatment program. The District Court held a hearing on the revocation petition, Drube admitted the allegation and the court revoked his suspended sentence. The court sentenced Drube to a six-month commitment to the DOC, followed by a suspended sentence of eight years and six months to the MSP. The sentence included the condition that Drube enroll in, and successfully complete, an aftercare sexual offender treatment program during the suspended portion of the sentence.
¶7 In February of2002, the State again petitioned the District Court to revoke the suspended portion of Drube’s sentence based on an allegation that Drube had been terminated from the outpatient sexual offender treatment program he had been attending for failure to follow the program’s rules. After a hearing on the petition, the District Court revoked Drube’s suspended sentence and resentenced him to the nine-year term originally imposed by the SRD, with credit for time served. In its written order dated May 13, 2002, the court specified that the first five years of the sentence would be a commitment to the DOC, with the remainder of the sentence to be served at the MSP. The court suspended the MSP portion of the sentence with a variety of conditions, including that Drube
must complete Phases I-III of the Sex Offender Program at a facility no less secure than a pre-release center. [Drube] also needs to be in an aftercare program during the entire suspended sentence. An [intensive supervision] program of the [DOC] shall be considered as secure or more secure than a pre-release center.
Drube appeals.
DISCUSSION
¶8 1. Did the District Court abuse its discretion in revoking Drube’s sentence?
¶9 We review a district court’s decision to revoke a defendant’s suspended sentence to determine whether the court abused its discretion. State v. Williams, 1999 MT 240, ¶ 11, 296 Mont. 258, ¶ 11, 993 P.2d 1, ¶ 11. In revoking a suspended sentence, the district court must be reasonably satisfied that the defendant’s conduct “has not been what he agreed it would be if he were given liberty,” and this determination must be supported by a preponderance of the evidence in favor of the State. Williams, ¶ 11 (citations omitted).
¶10 Drube argues that the District Court abused its discretion in revoking his suspended sentence without giving him the opportunity to locate and enroll in an alternative sexual offender treatment program. He asserts that, according to the express terms of his suspended sentence, he would be in compliance with the conditions set forth by the District Court as long as he completed his sexual offender treatment at any time during the term of his suspended sentence. Consequently, according to Drube, his termination from the sexual offender program in which he was participating did not give the District Court immediate cause to revoke his sentence and he should have been given the opportunity to enroll in another program.
¶11 A district court may revoke a defendant’s suspended sentence upon finding that the defendant has violated the terms and conditions of the sentence. Section 46-18-203(7)(a), MCA. The specific condition of Drube’s sentence at issue here provided that Drube
shall enroll in and successfully complete an after care sex offender treatment plan during the term of the suspended sentence. Failure to so enroll and complete shall be a violation of the terms of the suspended sentence and is necessary to protect the public from the predatory conduct of the defendant.
Drube does not dispute that, at the time the State filed the revocation petition, he had not successfully completed an aftercare treatment program because he was terminated from the program in which he was participating. Nor does he dispute that, at that time, he was not enrolled in an aftercare treatment program. Thus, at the time the State filed its revocation petition, Drube was in violation of the conditions of his suspended sentence because he neither had completed an aftercare sexual offender treatment program nor was enrolled in such a program. Consequently, § 46-18-203(7)(a), MCA, authorized the District Court to revoke Drube’s suspended sentence.
¶12 Moreover, the District Court expressly stated, both at the close of the revocation hearing and in its order revoking Drube’s sentence, that Drube was unwilling to cooperate with the treatment programs and, in the interest of protecting the public, Drube required a more secure or structured setting in which to complete treatment. These findings were supported by testimony from Drube’s treatment counselor that Drube did not comply with program rules, did not appear to be focused on his treatment program, was not ready to live on his own in a community while attending treatment and was unlikely to be accepted into an alternative treatment program. Based on these findings, it was reasonable for the court to have determined that Drube’s termination from his treatment program and his inability to comply with program requirements outside of a structured setting frustrated the rehabilitative purposes of his suspended sentence, and that his conduct was not “what he agreed it would be if he were given liberty.” See, e.g., Williams, ¶ 17.
¶13 We hold that the District Court did not abuse its discretion in revoking Drube’s sentence.
¶14 2. Did the District Court err in sentencing Drube?
¶15 As stated above, after revoking Drube’s suspended sentence, the District Court sentenced him to a nine-year term, specifying that the first five years of the sentence would be a commitment to the DOC, with the remainder of the sentence to be served at the MSP. The court ordered that execution of the MSP portion of the sentence be suspended as long as Drube followed the various conditions set forth. Drube argues that the District Court erred in sentencing him because it placed a condition on his sentence which was impossible for him to fulfill and, in its written revocation and sentencing order, the court placed conditions on his suspended sentence which it did not enunciate at the hearing. We review a sentence in a criminal case for legality only and our review is confined to determining whether the sentence is within the parameters of the sentencing statute. State v. Muhammad, 2002 MT 47, ¶ 18, 309 Mont. 1, ¶ 18, 43 P.3d 318, ¶ 18.
¶16 Drube first contends that the District Court placed an impossible condition on his suspended sentence by requiring that he complete all three phases of the sexual offender treatment program at a facility no less secure than a prerelease center. He points out that, in the court’s order in June of 2001 revoking his previous suspended sentence, the court found that phase III of the sexual offender treatment program “was an aftercare program that would last for many years and which [Drube] could complete in custody only by remaining in custody for the entire term of his sentence.” Drube contends that, in making this finding, the court essentially determined that it was impossible to complete phase III as part of a suspended sentence and, consequently, the court erred by requiring him do so in its May of 2002 order.
¶17 The District Court’s order in June of 2001 revoked Drube’s prior suspended sentence because he was due to discharge the portion of his sentence committing him to the DOC and had not completed phase III of his sexual offender treatment program. The court’s statement that Drube could not complete phase III while in custody was directly related to the fact that he was about to discharge his commitment to the DOC and, thus, would no longer be “in the custody’ of the DOC. In its order in May of2002, the District Court resentenced Drube to a five-year commitment to the DOC, during which time he was to complete the three phases of the sexual offender treatment program. Drube presents nothing establishing that it will be impossible to complete this requirement within the reinstated five-year commitment to the DOC. We conclude, therefore, that Drube has failed to establish that the District Court imposed an impossible condition on his suspended sentence.
¶18 Drube also argues that the District Court erred by including conditions on his suspended sentence in its written order which it did not include in its oral pronouncement of sentence at the revocation hearing. At the close of the revocation hearing, the District Court stated orally that Drube was sentenced to a five-year commitment to the DOC, followed by a suspended sentence to the MSP. The court did not expressly attach any conditions to the suspended sentence. In its May of 2002 written order, however, the court suspended Drube’s sentence upon eight conditions. Drube cites State v. Lane, 1998 MT 76, 288 Mont. 286, 957 P.2d 9, for the proposition that, where the oral pronouncement of sentence differs from the written sentencing order the oral pronouncement controls and asserts, on that basis, that the eight conditions of his suspended sentence must be stricken from his sentence.
¶19 Drube is correct that, generally, if the written judgment differs from the oral pronouncement of sentence, the oral pronouncement controls. See Lane, ¶ 40. However, we have since clarified that the general rule of Lane is not absolute, but must be applied in a principled manner depending on the circumstances of the case. State v. Johnson, 2000 MT 290, ¶ 20, 302 Mont. 265, ¶ 20, 14 P.3d 480, ¶ 20. Thus, when determining whether a subsequent written sentencing order is unlawful because it contains conditions not enunciated orally, we must determine
first, whether the defendant was afforded the opportunity to respond to its inclusion upon sufficient notice at sentencing, and second, whether that portion of the written judgment substantively increases one of two things: (1) the defendant’s loss of liberty; and (2) the defendant’s sacrifice of property.
Johnson, ¶ 24.
¶20 Here, Drube concedes that all of the conditions in the District Court’s 2002 written revocation and sentencing order were contained in either his original sentence or the 2001 revocation and sentencing order. Furthermore, the record reflects that Drube was present at both his original sentencing hearing and the hearing on the 2001 revocation petition, and was given the opportunity at those times to respond to the conditions the court placed on his sentences. The conditions in the 2002 revocation and sentencing order were not new or unknown to Drube. Finally, Drube presents no argument that imposition of the eight conditions substantively increases either his loss of liberty or sacrifice of property. We conclude, therefore, that the written 2002 revocation and sentencing order is not rendered unlawful by the District Court’s addition of conditions which it did not impose orally at the sentencing hearing.
¶21 We hold that the District Court did not err in sentencing Drube.
¶22 Affirmed.
JUSTICES REGNIER, COTTER, LEAPHART and RICE concur.
|
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 A jury in the Thirteenth Judicial District Court, Yellowstone County, convicted Kevin Schmalz of the attempted deliberate homicide of his mother. He appeals. We affirm.
¶2 The issues are whether the case should be reversed for abuse of prosecutorial discretion and whether the District Court erred in refusing the defense’s proposed instruction on felony assault.
¶3 The State of Montana filed two counts of attempted deliberate homicide against seventeen-year old Kevin Schmalz as a result of a family dispute which occurred on February 3,1996. At approximately 11:30 that evening, Schmalz and his mother had an argument about items which she had thrown away when she cleaned his room earlier that day. Schmalz’s father went downstairs to the family room where they were arguing and told them both to quiet down and go to bed. He grabbed Schmalz by the back of the neck and pushed him toward his bedroom. Schmalz ran into his room, pulled out his .22 caliber bolt-action rifle, and came back out shooting from the hip.
¶4 Schmalz’s first shot grazed his mother’s cheek. He came further into the family room and shot her in the chest, after which she stood behind a reclining chair yelling at him to give her the gun. Schmalz’s father rushed at Schmalz, and Schmalz shot him in the chest. Schmalz and his parents then wrestled for control of the gun, during which the father tried to punch Schmalz but accidentally hit the mother instead. Schmalz became upset, said, “You hit mom,” dropped the rifle, then ran out of the house.
¶5 Schmalz’s parents called 911. Schmalz was arrested whenhe returned to the home while police and paramedics were there assisting his parents. Schmalz’s mother was treated at the hospital for a superficial wound on her right cheek and two broken ribs and a bruised lung from the shot to her chest. Schmalz’s father was hospitalized as a result of the gunshot wound to his chest.
¶6 Schmalz was charged with two counts of attempted deliberate homicide. Just before trial, he pled guilty to aggravated assault against his father, and the charge of attempted deliberate homicide of the father was not pursued at trial. After a three-day trial, the jury found Schmalz guilty of the attempted deliberate homicide of his mother.
Issue 1
¶7 Should the case be reversed for abuse of prosecutorial discretion?
¶8 Under this issue, Schmalz raises several claims. He alleges that the prosecutor improperly refused to charge the case as aggravated assault upon his mother; that the prosecution failed to introduce to the jury the full testimony of the parent/victims; and that in closing arguments, the prosecutor argued a theory to the jury which was not supported by the victims’ testimony.
¶9 We first consider the matter of failure to charge aggravated assault rather than attempted deliberate homicide. Where the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion. State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408. Schmalz admits that the facts of this case support a possible charge of attempted deliberate homicide of his mother. He has not established abuse of the prosecutor’s discretion as to which crime to charge, which he admits is broad.
¶10 Schmalz does not elaborate upon his claim that the prosecution failed to present the full testimony of the parent/victims, but it appears he is referring to his parents’ wishes that this case not be brought to trial. Schmalz has shown no reason why defense counsel could not have elicited such testimony on cross-examination of the parents, for what it was worth. At any rate, Schmalz argues that this disregard by the prosecution of the victims’ wishes should be considered in conjunction with his claims concerning the prosecution’s closing argument.
¶11 The district court should be given the first opportunity to correct any trial errors. State v. Rogers (1993), 257 Mont. 413, 418-19, 849 P.2d 1028, 1031-32. In this case, as the State points out, the defense failed to make any objection to the prosecutor’s comments during closing argument.
¶12 Section 46-20-104, MCA, provides in pertinent part:
(2) Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).
Under the above statute, this Court is precluded from considering an alleged error unless a timely objection was made or unless the following statutory criteria are met:
(2) Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person’s guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person’s attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person’s attorney and could not have been ascertained by the exercise of reasonable diligence.
Section 46-20-701(2), MCA.
¶13 Because the defense did not object to the prosecutor’s closing arguments, this claim has not been properly preserved for appeal. Nor has Schmalz demonstrated that he can satisfy any of the requirements of § 46-20-701(2), MCA. Therefore, we conclude that he has waived the right to have this Court consider his claims regarding the prosecutor’s closing argument.
¶14 We hold that Schmalz has failed to establish any reason why this case should be reversed for prosecutorial misconduct.
Issue 2
¶15 Did the District Court err by refusing the instruction requested by the defense on felony assault?
¶16 At the close of the evidence, the District Court rejected Schmalz’s request for a jury instruction on a lesser included offense of felony assault, and instead instructed the jury on the lesser included offense of aggravated assault. The difference between aggravated assault and felony assault, for purposes of this case, is whether Schmalz’s mother suffered serious bodily injury (aggravated assault), or bodily injury by a weapon (felony assault). Section 45-5-202, MCA. Both offenses require a mental state of purposely or knowingly.
¶ 17 Schmalz points out that one doctor testified that his mother was not at substantial risk of death. He argues that she therefore did not suffer serious bodily injury.
¶ 18 That the victim was at substantial risk of death is one definition of serious bodily injury under § 45-2-101(64), MCA. Another definition of serious bodily injury under that statute is bodily injury which “at the time of injury, can reasonably be expected to result in ... protracted loss or impairment of the function or process of any bodily member or organ.” Section 45-2-101(64)(a)(iii), MCA.
¶19 In deciding to instruct on aggravated assault, the District Court reasoned that Schmalz’s mother suffered serious bodily injury from the second bullet, which grazed her lung, inches from her heart. The paramedic who initially treated Schmalz’s mother testified that it sounded like her lung had been punctured. The court deemed this an injury which was or could be expected to cause protracted loss of the function or process of a bodily organ. There was no contrary testimony, although, fortunately, the mother’s injuries proved not to be as serious as they were initially believed to be.
¶20 As further support for his argument that the jury should have been instructed on felony assault, Schmalz points out that his mother testified that the first bullet hit her before he was out of his bedroom and that she believed he did not shoot at her the second time she was hit, but that she instead stepped into the path of the bullet. Schmalz asserts that this raises the question of whether he possessed the necessary state of mind to be convicted of attempted deliberate homicide — the purpose to cause the death of another human being and action toward purposely or knowingly causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA; State v. Sellner (1997), 286 Mont. 397, 400, 951 P.2d 996, 998.
¶21 When a criminal defendant is charged with attempted deliberate homicide or deliberate homicide, a lesser included offense instruction on assault must be given if there is a “basis from which a jury could rationally conclude that the defendant is guilty of the lesser, but not the greater offense.” State v. Castle (1997), 285 Mont. 363, 369, 948 P.2d 688, 691. In Castle, although the defendant had punched the victim in the jaw, there was evidence that injuries inflicted by other persons, including stab wounds and severe blunt force injuries to the head, had caused the victim’s death.
¶22 In this case, unlike in Castle, there was no evidence that any person other than Schmalz caused the victim’s injuries. Also, here, unlike in Castle, there was no danger that the jury possibly convicted Schmalz of attempted deliberate homicide rather than let his admitted crime go unpunished, because the jury was instructed on the lesser included offense of aggravated assault.
¶23 Schmalz cites the common-law rule that the court must instruct upon every issue or theory having support in the evidence, citing, inter alia, State v. Gopher (1981), 194 Mont. 227, 633 P.2d 1195. However, we have held that an instruction on a lesser included offense of assault has no support in the evidence and is not necessary when the defense’s evidence, if believed, would require an acquittal. See Sellner and State v. Howell, 1998 MT 20, ¶ 34, [287 Mont. 268, ¶ 34], 954 P.2d 1102, ¶ 34. The testimony of Schmalz’s mother, if believed, would support an acquittal, not a conviction of felony assault. According to her testimony, Schmalz had no intent to shoot her at all. Like in Sellner and Howell, if the jury believed the testimony upon which the defense relies, an instruction on the lesser included offense would have no support in the evidence because the necessary intent would be lacking. ¶24 We hold that the District Court did not err in refusing Schmalz’s request for an instruction on felony assault.
¶25 Affirmed.
JUSTICES NELSON, TRIEWEILER, HUNT and REGNIER concur.
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OPINION AND ORDER
¶1 Nev Harding (Harding), the respondent in this appeal, has moved this Court to strike Exhibits A through D attached to the opening brief of the appellants Jake and Esther Frank (the Franks), d/b/a Rocking J Ranch. Pursuant to our order of August 18,1998, the Franks have responded. They oppose Harding’s motion and move that the Exhibits at issue be judicially noticed. For the reasons stated below, we grant Harding’s motion, in part, and deny the Franks’ motion.
¶2 The case underlying this appeal was brought in the Thirteenth Judicial District Court, Carbon County, by the Franks against Harding; they sought judgment for amounts allegedly owed them by Harding and relief from threats allegedly leveled by him against them. Harding did not timely answer the complaint and the Franks obtained entry of his default, followed by a default judgment. Thereafter, Harding moved to set the default judgment aside. The District Court held a hearing on the motion and Harding presented evidence surrounding the circumstances of his failure to answer the complaint timely. The court did not allow the Franks to present evidence, but did allow their counsel to make an offer of proof as to the testimony he would have offered. The court granted Harding’s motion to set aside the default judgment and the Franks timely filed a notice of appeal. The sole issue raised on appeal is whether the District Court erred in granting Harding’s motion to set aside.
¶3 The Franks’ opening brief on appeal was filed on June 23,1998. Attached thereto are Exhibits A, C and D, all of which are newspaper articles. Exhibit B, also attached, is the process server’s proof of service with narrative statement attached. Harding moves to strike all four of the referenced Exhibits — together with all statements and arguments based thereon in the Franks’ opening brief — on the grounds that they are not part of the record on appeal and are included for the improper purpose of prejudicing this Court against him. We observe at the outset that Exhibit B, the process server’s proof of service and attached statement are of record — having been filed February 11, 1998 — and we do not discuss that Exhibit further.
¶4 The Franks respond, first, that the newspaper articles are attached to allow this Court “to evaluate the parties to this appeal.” In this regard, we need observe only that the issue on appeal — whether the trial court erred in setting aside the default judgment — obviously does not require this Court to “evaluate the parties;” it requires us only to apply the law in determining whether the District Court erred in setting aside the default judgment. Exhibits A, C and D are totally and entirely irrelevant to our consideration of that issue and it is clear that counsel can only have attached Exhibits A, C and D for an improper purpose.
¶5 Relying on Matter of Establishment & Org. of Ward Irr. Dist. (1985), 216 Mont. 315, 321, 701 P.2d 721, 726, the Franks also contend that it is permissible to “supplement” the record on appeal with judicially recognizable material and that the articles are proper subjects for judicial notice. Ward Irr. Dist. is readily distinguishable, however, on several grounds. First, we considered the survey descriptions and maps at issue there under the express authority of the Commission Comments to Rule 201(b), M.R.Evid., which permit judicial notice of “published maps or charts.” Second, the Montana Water Code specifically provided that, in the water rights adjudication process, maps and descriptions were acceptable articles of evidence to prove a water right. Ward Irr. Dist., 216 Mont. at 321, 701 P.2d at 726. In the present case, neither of those bases is even arguably present and, indeed, the Franks’ counsel makes no effort to argue that the newspaper articles are judicially recognizable under Rule 201(b), M.R.Evid. Furthermore, the alleged “facts” contained within the newspaper articles are, as noted above, totally irrelevant to the issue raised for our consideration in this appeal.
¶6 Finally, the Franks argue — relying on 29 Am. Jur. 2d Evidence § 88 (1994) — that “[n]ewspaper articles and television stories are regularly judicially noticed by federal courts.” While it is true that § 88 cites to two federal district court cases wherein newspaper articles apparently have been judicially noticed, the section also cites to a federal circuit court of appeals case refusing to take judicial notice of the truth of a newspaper article. Thus, § 88 can hardly be said to support the Franks’ assertion that federal courts “regularly” take judicial notice of newspaper articles. Moreover, Rule 201(b), M.R.Evid., is applicable here.
¶7 In summary, it is clear that Exhibits A, C and D are improperly attached to the Franks’ brief. Nor is it conceivable that the Franks’ counsel, an attorney with some 15 years’ experience in the practice of law, did not recognize the impropriety of attaching such nonrecord and totally irrelevant matters to his clients’ brief on appeal. In this regard, we long have cautioned counsel about such practices, stating, for example, that “ ‘[w]e strongly condemn this practice by counsel for appellants [of attempting to introduce extraneous evidence by the ‘back door’ via attachment as appendices to their brief] and use this occasion to warn other parties to future appeals that this practice will not be tolerated.’ ” See Downs v. Smyk (1979), 185 Mont. 16, 25, 604 P.2d 307, 312 (quoting Farmers State Bank of Conrad v. Iverson (1973), 162 Mont. 130, 133-34, 509 P.2d 839, 841). This practice wastes the time and resources of both opposing counsel and this Court and, had Harding requested sanctions in this regard, they likely would have been granted.
¶8 The Court having fully considered the matters before it,
¶9 IT IS ORDERED that Harding’s motion to strike Exhibits A, C and D to the Franks’ opening brief is GRANTED and we will not consider those Exhibits or any statements or argument in the Franks’ opening brief which rely on those Exhibits; and
¶10 IT IS ORDERED that the Franks’ motion for judicial notice of Exhibits A, C and D is DENIED.
¶ 11 The Clerk is directed to mail a true copy of this Order to counsel of record for the parties.
¶12 DATED this 1st day of September, 1998.
/S/J.A.TURNAGE
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/JAMES C. NELSON
/S/ JIM REGNIER
|
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] |
JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Mary Bean (Bean), an unemployment compensation claimant, appeals from an order of the Fourth Judicial District Court, Missoula County, denying judicial review and affirming the decision of the Board of Labor Appeals (BOLA) which adopted the findings of fact and decision of the appeals referee denying Bean unemployment benefits. We reverse and remand for further proceedings consistent with this Opinion.
¶2 We restate the following issues raised on appeal:
¶3 1. Are hearsay reports of witnesses describing alleged misconduct committed by Bean at work admissible into evidence as “business records” of her employer?
¶4 2. Has consideration of these inadmissible hearsay reports deprived Bean of her constitutional rights to confront and cross-examine adverse witnesses?
¶5 3. May a decision denying a claim for unemployment compensation benefits, on the ground that a claimant committed “willful misconduct” during the course of her employment, be based entirely on inadmissible hearsay reports from witnesses unavailable for confrontation or cross-examination at the hearing?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 The underlying facts of this case are set forth in our opinion, Bean v. Board of Labor Appeals (1995), 270 Mont. 253, 891 P.2d 516 (Bean I):
Bean’s employment as a licensed practical nurse with Community Nursing, Inc., doing business as Village Health Care Center (Village Health), ended with her discharge on March 22,1993, allegedly for failure to improve her conduct and inappropriate criticism of Village Health’s operation. After her discharge, Bean filed for unemployment insurance benefits with the Montana Department of Labor and Industry (Department). A Department deputy twice denied Bean’s claim on the basis that she was discharged for misconduct and, as a result, was ineligible to receive benefits. Bean appealed the decision to an appeals referee (referee).
A telephonic hearing was held on June 29, 1993; the parties were at separate locations in Missoula and the referee was in Helena. The referee subsequently issued written findings of fact and a decision concluding that Bean was discharged for misconduct and, thus, ineligible for unemployment benefits. Bean appealed to the BOLA. The BOLA, following a fifteen minute telephonic argument presented by Bean’s counsel, issued a one-paragraph decision adopting the referee’s findings of fact and decision.
Bean petitioned the District Court for judicial review of the BOLA’s decision. The District Court denied her petition and affirmed the BOLA’s decision denying unemployment benefits. Bean appealed].
Bean I, 270 Mont. at 255-56, 891 P.2d at 518. On appeal, we concluded that the BOLA violated § 24.7.306(1), ARM, when it adopted the referee’s findings and decision without considering the entire record before it. We reversed and remanded the case to the District Court for an order remanding the case to the BOLA for reconsideration and redetermination of Bean’s appeal. Bean I, 270 Mont. at 260, 891 P.2d at 520.
¶7 On remand, the BOLA ordered that a de novo hearing be held with all parties and witnesses personally present and subject to confrontation and cross-examination. On April 18, 1996, this hearing was held in Missoula. Bean and a number of witnesses who had worked for Village Health during Bean’s period of employment testified including Suzanne Denend, Director of Nursing, and Susan Allen, Social Service Director. In addition to oral testimony, a number of documents were admitted into evidence including Bean’s March 22, 1993 Termination Notice, March 22, 1993 Termination Report with an attached March 18,1993 incident report (Incident Report), as well as other prior disciplinary reports, including those referenced in Bean’s Termination Notice.
¶8 The Incident Report was prepared by Allen on March 18,1993, and was based, not on Allen’s own personal knowledge, but on information she received on March 18, 1993, from llene Rici (Rici), the daughter of a Village Health resident, concerning Bean’s alleged misconduct. On March 18,1993, Allen telephoned Rici to discuss her complaint concerning a separate March 17, 1993 incident where Rici’s mother was found unattended in Village Health’s parking lot. As indicated in the Incident Report, during this inquiry, Rici also explained she had spoken with Bean immediately after the March 17,1993 incident and was concerned about Bean’s derogatoiy comments regarding Village Health and Bean’s discussion of other residents’ personal information such as what they did for a living. After Allen provided Denend with the Incident Report, Denend terminated Bean’s employment.
¶9 Bean objected to the admission of the Incident Report and testified that she never made such remarks concerning Village Health and was not sure she had ever spoken with Rici. Additionally, Bean objected to the admission of the other prior disciplinary reports. Despite Bean’s objections, the referee admitted all offered documentary evidence, specifically admitting as “business records” Bean’s Termination Notice, Termination Report and the Incident Report attached thereto, as well as the other prior disciplinary reports concerning Bean’s misconduct. In particular, the referee admitted the Incident Report into evidence as a business record based only on Allen’s testimony regarding the Incident Report. Rici, who provided Allen with the information contained in the Incident Report concerning Bean’s alleged misconduct, never testified; in fact, Village Health never subpoenaed her as a witness.
¶10 On June 14,1996, the referee entered a written decision again denying Bean unemployment compensation benefits on the ground that she was discharged for misconduct. Bean once again appealed to the BOLA. However, on September 26,1996, after a brief oral argument and without consideration of new evidence, the BOLA affirmed the decision of the referee, adopting the decision as its own. Pursuant to § 39-51-2410, MCA, Bean petitioned for judicial review with the Fourth Judicial District Court, Missoula County. On May 23, 1997, the District Court denied Bean’s petition for judicial review and entered an order affirming the decision issued by the referee and adopted by the BOLA. From this decision, Bean appeals.
DISCUSSION
¶11 As an appellate tribunal, we review the decision of the BOLA for any errors of law. Section 39-51-2410(5), MCA. The BOLA’s decision will be upheld if substantial evidence supports it; therefore, we review the decision of the BOLA to determine whether its findings of fact are supported by substantial evidence. Whether substantial evidence supports the BOLA’s decision is a question of law. Jordan v. Craighead (1943), 114 Mont. 337, 343, 136 P.2d 526, 528; Noone v. Reeder (1968), 151 Mont. 248, 252, 441 P.2d 309, 311-12. Our review of questions of law is plenary. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.
¶12 To determine whether the BOLA’s findings are supported by substantial evidence, we must first determine what constitutes substantial evidence to support an administrative agency decision. Relying on §24.7.312, ARM, Village Health argues that, in unemployment compensation hearings, evidence is admissible if reasonable people would rely on it in conducting their serious affairs and that the statutory rules of evidence do not govern. We disagree. As we have previously explained, “[although the Rules of Evidence are generally more relaxed in an administrative proceeding than in a court of law, they are not to be relaxed to the point of disregarding due process of law and the fundamental rights of the individual.” Matter of Teaching Certificate of Thompson (1995), 270 Mont. 419, 427, 893 P.2d 301, 305-06 (holding that an administrative agency’s decision may not be based upon inadmissible expert opinion). Consequently, as we explained in Thompson, we must review the BOLA’s findings, adopted in whole from the findings of the referee, “to determine whether they are supported by reliable, probative and substantial evidence in the record.” Thompson, 270 Mont. at 431, 893 P.2d at 308.
¶13 We agree with Bean that to determine whether substantial evidence exists, only admissible evidence may be considered. See Noone, 151 Mont. at 252, 441 P.2d at 311-12. Under § 39-51-2410(5), MCA, the BOLA’s findings must be supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion or, stated another way, enough evidence to justify a refusal to direct a verdict on a factual issue in a jury trial.” Noone, 151 Mont. at 252, 441 P. 2d at 311-12. That is, the decision must be supported by credible, ad missible evidence. See State v. Johnson (1978), 177 Mont. 182, 580 P.2d 1387.
¶ 14 Accordingly, we hold that, with respect to agency findings of fact, substantial evidence must consist of admissible evidence. Consequently, testimony that is inadmissible hearsay may not be considered in determining whether substantial evidence exists to support an agency’s findings. Rather, there must be some admissible evidence to establish the foundation of substantial evidence. Therefore, the BOLA’s decision in this case denying Bean unemployment benefits cannot be based upon inadmissible hearsay reports alone.
¶15 Additionally, Bean argues, and the Department concurs, that an employer who contests an unemployment compensation claim bears the burden of proving that the claimant was discharged for employee misconduct. While we have not previously addressed this issue, we note that a majority of states require an employer to bear this burden. See Parker v. St. Maries Plywood (Idaho 1980), 614 P.2d 955, 958 (listing jurisdictions placing the burden of proof on the employer). After joining the majority of jurisdictions adopting this burden of proof, the Idaho Supreme Court explained:
The employer is in a unique position to know the reasons for his employee’s discharge and access to the facts relating to that discharge will be more readily obtained by the employer than the employee. Further, as a practical matter, the task of proving the existence of employee misconduct will be much easier for the employer than would be the employee’s task of disproving a charge of employee misconduct. The employee may not always know what the employer’s reasons were for discharging him.
Parker, 614 P.2d at 959. We agree with the sound rationale of the Idaho Supreme Court. Therefore, we hold that an employer who challenges the eligibility of an unemployment compensation benefits claimant on the ground that the claimant was discharged for employee misconduct bears the burden of proving that the employee was in fact discharged for employee misconduct. See Parker, 614 P.2d at 959.
¶16 1. Are hearsay reports of witnesses describing alleged misconduct committed by Bean at work admissible into evidence as “business records” of her employer?
¶ 17 In the case at bar, Village Health submitted evidence to the referee consisting of not only the March 18, 1993 Incident Report attached to Bean’s Termination Report but also other disciplinary reports pertaining to prior alleged incidents of misconduct including those referenced in Bean’s Termination Notice. However, the sole reason given for Bean’s termination in her Termination Report was her “[flailure to deport [her]self in a professional manner [with] family member” and attached thereto was the March 18, 1993 Incident Report. Additionally, Village Health’s own witnesses, Suzanne Denend and Susan Allen, testified that the other incidents of Bean’s misconduct had been corrected and did not form the basis of Bean’s discharge; rather, Bean’s discharge was based solely on the incident described in the March 18,1993 Incident Report. Despite Bean’s objections, the referee admitted all of these documents into evidence.
¶18 In Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 23, 890 P.2d 382, 385, we explained that, in a wrongful discharge action, any reasons for discharge other than those set forth in the discharge letter are irrelevant, and, thus, inadmissible. Consequently, we hold that evidence of incidents of misconduct allegedly committed by Bean other than that described in the March 18,1993 Incident Report was irrelevant, and, therefore, improperly admitted into evidence. Accordingly, our review in the instant appeal is limited to a determination of whether the Incident Report alone constitutes admissible and substantial evidence supporting the BOLA’s decision to deny Bean unemployment benefits.
¶19 Bean argues that the Incident Report constituted hearsay evidence that was not admissible under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule. Village Health responds that the Incident Report was prepared in the ordinary course of Village Health’s business, and, therefore, was admissible under the business records exception. While the Department concedes that denial of unemployment benefits cannot be premised solely on inadmissible hearsay evidence, it argues that such is not the case here. Rather, the Department adopts Village Health’s argument that the Incident Report was admissible as a business record. We disagree.
¶20 Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. Hearsay evidence is not admissible unless it falls within an exception to the hearsay rule. Rule 802, M.R.Evid. One exception to the hearsay rule is the “business records exception” which provides:
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 a 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. ... The term “business” as used in this paragraph includes business, institution, association, profession, occupation and calling of every kind, whether or not conducted for profit.
Rule 803(6), M.R.Evid. Business records are presumed reliable for two general reasons: 1) employees generating these records are motivated to accurately prepare these records because their employer’s business depends on the records to conduct its business affairs; and 2) the routine and habit of creating these records also lends reliability. These reasons are lacking when a document is prepared for use outside normal business operations, especially for use in litigation. United States v. Blackburn (7th Cir. 1993), 992 F.2d 666, 670, cert. denied, 510 U.S. 949, 114 S.Ct. 393, 126 L.Ed.2d 341 (1993) (“adhering] to the well-established rule that documents made in anticipation of litigation are inadmissible under the business records exception”).
¶21 In Palmer v. Hoffman (1943), 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645, the United States Supreme Court held that an accident report made by a railroad engineer was not admissible as a business record because the report was “not a record made for the systematic conduct of the business as a business.” Palmer, 318 U.S. at 113, 63 S.Ct. at 480, 87 L.Ed. 645. Rather, the Supreme Court concluded that the report’s “primary utility [was] in litigating, not in railroading.” Palmer, 318 U.S. at 114, 63 S.Ct. at 481, 87 L.Ed. 645. The Supreme Court explained:
Any business by installing a regular system for recording and preserving its version of accidents for which it was potentially liable could qualify those reports under the Act [28 U.S.C. § 695], The result would be that the Act would cover any system of recording events or occurrences provided it was “regular” and though it had little or nothing to do with the management or operation of the business as such. Preparation of cases for trial by virtue of being a “business” or incidental thereto would obtain the benefits of this liberalized version of the early shop book rule. The probability of trustworthiness of records because they were routine reflections of the day to day operations of a business would be forgotten as the basis of the rule. Regularity of preparation would become the test rather than the character of the records and their earmarks of reliability acquired from their source and origin and the nature of their compilation.
Palmer, 318 U.S. at 113-14, 63 S.Ct. at 480-81, 87 L.Ed. 645 (citations omitted).
¶22 The language of Rule 803(6), M.R.Evid., supports the rationale of Palmer. That is, Rule 803(6), M.R.Evid., not only requires that the reported activity be a regularly conducted business activity, but the rule precludes admission of regularly prepared business records when “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” In this instance, the Incident Report lacks trustworthiness for a number of reasons, and, consequently, does not qualify as a business record.
¶23 First, the Incident Report, like the accident report in Palmer, was not prepared as a part of Village Health’s routine business activity of administering nursing services to elderly residents. Rather, the Incident Report was prepared as a part of Village Health’s activity of disciplining employees, an activity incidental to its main business activity. Moreover, the Incident Report led to Bean’s discharge for cause. Consequently, the very nature of the Incident Report indicates that Village Health prepared it in anticipation of potential litigation over Bean’s discharge such as a wrongful discharge claim or an unemployment compensation claim. Any documents created in anticipation of litigation do not qualify as business records because they lack sufficient guarantees of trustworthiness. See Hunter v. City of Bozeman (1985), 216 Mont. 251, 700 P.2d 184. See also Palmer, 318 U.S. at 113-14, 63 S.Ct. at 480-81, 87 L.Ed. 645, and Blackburn, 992 F.2d at 670.
¶24 Second, even if the Incident Report qualified as a business record, it still would be inadmissible because the Incident Report contained the hearsay statement of Rici, a third party who was not charged with accurately reporting events to Village Health. See e.g. Romano v. Howarth (2nd Cir.1993), 998 F.2d 101, 107-08 (holdingthat a nurse’s progress notes were not admissible under the business records exception to the hearsay rule because while the nurse’s business duty to accurately record plaintiff’s behavior ensured the accuracy of her notes, it did not guarantee the accuracy of information provided to her by others not under a similar duty). See also Gray v. Busch Entertainment Corp. (2nd Cir. 1989), 886 F.2d 14, 15-16 (hold ing that the statement of a patron’s daughter in an amusement park’s first aid report concerning the cause of the patron’s accident was not admissible under the business records exception to the hearsay rule because the patron’s daughter was not acting in the ordinary course of business). Although Allen, the Village Health Social Service Director who prepared the Incident Report, may well have accurately recorded the information Rici provided her, this does not ensure that Rici, who was not employed by Village Health and who was admittedly upset with Village Health’s treatment of her mother, accurately reported the information about Bean to Allen. Moreover, certain testimony indicated that Allen wanted Bean’s employment terminated. This testimony further degrades the trustworthiness of the Incident Report. See Romano, 998 F.2d at 108 (explaining that even if a person had a business duty to accurately report incidents, the trustworthiness of a business record prepared by that person is still questionable if that person had motive to report falsely).
¶25 Village Health cites State v. Edmundson (1990), 246 Mont. 241, 805 P.2d 1289, to argue that, just as the reports in Edmundson were properly admitted as business records, the Incident Report in the case at bar was properly admitted as a business record. However, we agree with Bean that Edmundson is not on point. Edmundson involved the revocation of Edmundson’s conditional release from the Montana State Hospital at Warm Springs and placement with a treatment program in a group home after Edmundson violated the conditions of his release by engaging in certain prohibited behavior such as violating his curfew and behaving in a threatening manner toward women. At the revocation hearing, the State offered proof of Edmundson’s behavior through the testimony of only one witness, the director of the treatment program. The director’s testimony was primarily based on reports describing Edmundson’s behavior made by Edmundson’s primary therapist. The district court allowed this testimony despite Edmundson’s hearsay objections. Edmundson, 246 Mont. at 242-44, 805 P.2d at 1290-91.
¶26 We affirmed the district court’s decision to admit these hearsay statements under the business records exception of Rule 803(6), M.R.Evid. Edmundson, 246 Mont. at 245, 805 P.2d at 1292. We explained that the recorded entries that the program director testified from were made in the regular course of business of the group home by Edmundson’s primary therapist, who had a duty to record any reported behavioral problems in Edmundson’s file, and while the inci dents were fresh in the therapist’s mind. Thus, we concluded that the records were trustworthy and qualified as business records under Rule 803(6), M.R.Evid. Edmundson, 246 Mont. at 244, 805 P.2d at 1292.
¶27 As such, Edmundson is a good example of the distinction made in Palmer that, to be admissible, business records must report information concerning a primary business activity of the business for which there is a duty and a motive to report truthfully. Consequently, unlike the reports in Edmundson, the Incident Report in the case at bar does not qualify as a business record because, as we explained previously, the Incident Report was prepared as a part of an activity incidental to Village Health’s main business activity of administering nursing services to elderly residents and in anticipation of litigation. Furthermore, the information contained in the Incident Report was provided by a third party who was not employed by Village Health, and, thus, had no duty to report accurately to Village Health.
¶28 Finally, we also agree with Bean that the admission of the Incident Report as a “business record” violated the applicable rules of the BOLA. Specifically, § 24.7.312(1), ARM, allows consideration of evidence “on which responsible persons are accustomed to rely in the conduct of serious affairs.” While many types of hearsay evidence are admissible under recognized exceptions to the hearsay rule, see Rules 803 and 804, M.R.Evid., other types of hearsay do not fall within these exceptions because they generally do not satisfy the essential rationale of the hearsay rule that to be admissible, the hearsay evidence must bear circumstantial guarantees of trustworthiness. Consequently, hearsay not falling within one of the hearsay exceptions is not the type of evidence “on which responsible persons are accustomed to rely in the conduct of serious affairs.” Moreover, § 24.7.301(c), ARM, which summarizes the procedural rights of unemployment compensation claimants, states that all hearings must be fair and conducted in accordance with procedural safeguards which include cross-examination; adequate evidence to support pertinent and necessary findings of fact; and substantial evidence as revealed by the files, records and evidence taken at the hearing to support it.
¶29 In light of the foregoing, we conclude that the Incident Report lacks any circumstantial guarantees of trustworthiness, and, therefore, does not qualify as a business record pursuant to Rule 803(6), M.R.Evid. Accordingly, we hold that the Incident Report constituted inadmissible hearsay and was improperly admitted into evidence.
¶30 2. Has consideration of these inadmissible hearsay reports deprived Bean of her constitutional rights to confront and cross-examine adverse witnesses?
¶31 Bean argues that her constitutional rights to confront and cross-examine adverse witnesses were violated because all of the critical evidence admitted against her consisted of inadmissible hearsay statements made by persons who did not testify at her eligibility hearing. Relying on Richardson v. Perales (1971), 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842, Village Health simply responds that Bean failed to subpoena any adverse witnesses, and, consequently, she cannot now claim that her due process rights were denied. The Department concurs with Bean that she must be afforded the right to confront and cross-examine witnesses against her, but disagrees that Bean was not afforded that right in this case. Rather, the Department adopts Village Health’s argument and rationale that Bean cannot now claim her due process rights were violated when she herself failed to call certain witnesses. Again, we disagree.
¶32 Unemployment compensation claimants are entitled to due process before being denied those benefits. See Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. See also California Dept. of Human Resources Development v. Java (1971), 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666, and § 24.7.301(c), ARM (setting forth the procedural rights of unemployment compensation claimants). In Goldberg, the Supreme Court held that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg, 397 U.S. at 269, 90 S.Ct. at 1021, 25 L.Ed.2d 287. Furthermore, the Supreme Court stated that “[t]his Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases,... but also in all types of cases where administrative ... actions were under scrutiny.” Goldberg, 397 U.S. at 270, 90 S.Ct. at 1021, 25 L.Ed.2d 287 (citation omitted). Similarly, we have “been zealous to protect these rights from erosion” not only in criminal cases but in civil and administrative cases as well. See State v. Clark, 1998 MT 221, 964 P.2d 776. See also Bonamarte v. Bonamarte (1994), 263 Mont. 170, 866 P.2d 1132; Taylor v. Taylor (1995), 272 Mont. 30, 899 P.2d 523; and Matter of B.C., (1997), 283 Mont. 423, 942 P.2d 106 (a series of cases limiting the use of live telephonic testimony in contested factual proceedings due to the inability of the parties to confront and cross-examine adverse witnesses in person).
¶33 As we explained in Bonamarte, 263 Mont. at 174, 866 P.2d at 1134:
Requiring a witness to testify personally at trial serves a number of important policies and purposes. A witness’ personal appearance in court:
1. assists the trier of fact in evaluating the witness’ credibility by allowing his or her demeanor to be observed firsthand;
2. helps establish the identity of the witness;
3. impresses upon the witness, the seriousness of the occasion;
4. assures that the witness is not being coached or influenced during testimony;
5. assures that the witness is not referring to documents improperly; and
6. in cases where required, provides for the right of confrontation of witnesses.
¶34 In addition to constitutional due process protections, Rule 611(e), M.R.Evid., provides that “[ejxcept as otherwise provided by constitution, statute, these rules, or other rules applicable to the courts of this state, at the trial of an action, a witness can be heard only in the presence and subject to the examination of all the parties to the action, if they choose to attend and examine.” In Bonamarte, we noted that the right of confrontation, long provided for in criminal cases, is also required in civil cases under Rule 611(e), M.R.Evid. Bonamarte, 263 Mont. at 174, 866 P.2d at 1134. Furthermore, we explained in Taylor that Rule 611(e), M.R.Evid., also applies to administrative proceedings pursuant to § 2-4-612(2), MCA, which provides: “Except as otherwise provided by statute relating directly to an agency, agencies shall be bound by common law and statutory rules of evidence.” Taylor, 272 Mont. at 34, 899 P.2d at 525.
¶35 In Bonamarte, we concluded that the integrity of the fact finding process at trial is undermined where the parties do not have the opportunity to confront and effectively cross-examine each other or the witnesses and where the fact-finder has no opportunity to observe the parties and the witnesses. Bonamarte, 263 Mont. at 175, 866 P.2d at 1135. Moreover, we stated that “[t]he opportunity to observe a witness is so critical to judicial control and effective cross-examination that its denial is manifestly prejudicial.” Bonamarte, 263 Mont. at 178, 866 P.2d at 1137 (citation omitted). However, rather than adopting a per se rule precluding the use of telephonic testimony, we employed a balancing test that permitted the use of telephonic testi-
mony only under special or exigent circumstances. Bonamarte, 263 Mont. at 177, 866 P.2d at 1136.
¶36 With the significance of the right to confrontation and cross-examination in mind, we now turn to the issue of whether Bean’s due process rights were violated when she was not afforded the opportunity to confront and cross-examine witnesses adverse to her claim. To decide this issue, we employ the traditional due process balancing test set forth in Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. The United States Supreme Court explained in Mathews that “[d]ue process is flexible and calls for such procedural protections as the particular situation demands.” Mathews, 424 U.S. at 334, 96 S.Ct. at 902, 47 L.Ed.2d 18. Therefore, to determine what specific procedures are required to satisfy due process, three factors must be considered: 1) the individual’s private interest affected by official government action; 2) the risk of erroneous deprivation of the interest; and 3) the government’s interest in maintaining fiscal and administrative objectives. Mathews, 424 U.S. at 334-35, 96 S.Ct. at 903, 47 L.Ed.2d 18.
¶37 First, Bean’s appeal involves her claim for unemployment compensation benefits. Unemployment benefits replace income used by Bean for essential living expenses, and, therefore, are of the highest order. See Mathews, 424 U.S. at 340, 96 S.Ct. at 905, 47 L.Ed.2d 18. Additionally, Bean’s private interest in her professional reputation as a licensed practical nurse is affected. Second, a risk exists that these private interests will be erroneously deprived if a referee considers hearsay reports of witnesses unavailable to testify, and, consequently, unavailable for confrontation or cross-examination. In contrast, simply to require that all adverse witnesses be present and subject to confrontation and cross-examination would ensure that Bean’s due process rights were not violated.
¶38 Case in point is Bean’s current appeal. As set forth in Bean’s Termination Report and confirmed by the testimony of Denend and Allen, the Incident Report at issue in this case provided the sole basis for Bean’s termination. The Incident Report contained Rici’s hearsay statement accusing Bean of making derogatory comments about Village Health and breaching the confidentiality of other residents. Even though Rici was the one witness who had knowledge of Bean’s alleged misconduct, Village Health never subpoenaed her to testify, and, consequently, Bean was unable to confront or cross-examine her. Despite this, the referee admitted the Incident Report into evidence. As a result, Bean was denied her right to confrontation and cross-examination, and, therefore, was denied due process.
¶39 Third, to require the presence of all adverse witnesses for live confrontation and cross- examination at this hearing would place no further economic burden on the State. Rather, the economic burden of producing witnesses adverse to Bean’s claim would fall only on Village Health, who, as an employer contesting Bean’s eligibility for unemployment benefits, bears the burden of proving Bean was discharged for willful misconduct. See Parker, 614 P.2d at 958. In this regard, we note that even the BOLA recognized the importance of providing unemployment compensation claimants with the opportunity to confront and cross-examine adverse witnesses when it ordered, on remand, that a de novo hearing be held with all parties and witnesses personally present and subject to confrontation and cross-examination. Yet, the BOLA ignored its own order when it adopted the decision of the referee denying Bean unemployment benefits based entirely on hearsay reports of witnesses who were unavailable to testify, and, consequently, were not subject to confrontation or cross-examination.
¶40 Finally, we note that while Village Health and the Department do not dispute that Bean was entitled to due process, they merely argue that, because Bean failed to subpoena witnesses adverse to her claim, she cannot now assert that she was denied due process. In support of this argument, Village Health cites Richardson v. Perales (1971), 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842. In Richardson, a social security disability insurance claimant argued that reliance on the written reports prepared by his examining physicians, who did not testify at his eligibility hearing, violated his due process rights because he was not afforded the opportunity to confront and cross-examine them. The United States Supreme Court held that the claimant was not deprived of his right to confrontation and cross-examination in part because the claimant did not exercise his right to subpoena these physicians under 20 CFR § 404.926, and, thereby, provide himself with the opportunity for cross-examination. Richardson, 402 U.S. at 402, 91 S.Ct. at 1428, 28 L.Ed.2d 842.
¶41 We agree with Bean that Village Health’s argument under Richardson, in effect, attempts to improperly shift the burden of proof to Bean to disprove Village Health’s allegations of her misconduct. The disability insurance claimant in Richardson bore the burden of proving his entitlement to social security disability benefits. There fore, the Supreme Court held that the claimant’s own failure to subpoena witnesses adverse to his claim did not deprive him of his due process rights. However, in the case at bar, Bean does not bear such a burden. Rather, as we previously held, because Village Health contests Bean’s eligibility for unemployment benefits, it bears the burden of proving that Bean was discharged for willful misconduct. Parker, 614 P.2d at 958. Consequently, when the referee allowed Village Health to submit the hearsay statements of witnesses with personal knowledge of Bean’s alleged work misconduct without requiring that these witnesses testify in person at Bean’s eligibility hearing, Bean was denied her right to confront and cross-examine these witnesses. Accordingly, we hold that Bean’s due process rights were violated.
¶42 3. May a decision denying a claim for unemployment compensation benefits, on the ground that a claimant committed “willful misconduct” during the course of her employment, be based entirely on inadmissible hearsay reports from witnesses unavailable for confrontation or cross-examination at the hearing?
¶43 On the basis of our discussion in Issues 1 and 2, it is clear that the BOLA decision is not supported by substantial, admissible evidence. Rather, all of the evidence Village Health introduced to prove Bean’s alleged misconduct was based on inadmissible hearsay reports. First, because the Incident Report was the sole reason given for Bean’s termination, we explained that, under Galbreath, all other prior disciplinary reports concerning Bean’s alleged misconduct introduced by Village Health were irrelevant and improperly admitted into evidence. Furthermore, the Incident Report itself was improperly admitted into evidence under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule, because the report lacked any guarantees of trustworthiness. Moreover, Bean’s due process rights were violated when she was denied her right to confront and cross-examine witnesses adverse to her unemployment compensation claim. Therefore, we again reverse and remand to the District Court for entry of an order remanding this case to the BOLA for a trial de novo to allow Bean the opportunity to confront and cross-examine all witnesses adverse to her claim and to afford an appeals referee the opportunity to observe the parties and witnesses in order for it to make a determination on the issue of Bean’s eligibility for unemployment compensation benefits.
¶44 Reversed and remanded for further proceedings consistent with this Opinion.
CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Ann and Robert Osmolak filed suit against Klara and Russell Olson seeking an injunction in connection with a land deal between the parties. The Osmolaks voluntarily dismissed the suit prior to the show cause hearing. The Olsons then sued for attorney fees, which they were awarded on summary judgment. We reverse and remand.
ISSUES
¶2 A restatement of the issues the Osmolaks present on appeal follows:
1. Did the District Court err in awarding summary judgment to the Olsons?
2. Did the District Court err when it concluded that the Olsons’ damages included attorney fees incurred prior to the dismissal of the temporary restraining order as well as fees incurred pursuing attorney fees in that action and in this appeal?
3. Did the District Court abuse its discretion by awarding the amount of attorney fees and costs it awarded in this matter?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In May 1994, Ann and Robert Osmolak (the Osmolaks) bought ranch lands from Klara and Russell Olson (the Olsons) for $435,000. The Osmolaks made a down payment of $250,000 and agreed to pay the remaining $185,000 in installments over a maximum of ten years, pursuant to a promissory note secured by a mortgage on the land.
¶4 The sale included transfer of a State of Montana Grazing Lease (grazing lease) and a U.S. Forest Service Grazing Permit (permit). The buy-sell agreement between the parties (agreement) obligated the Olsons to keep and maintain the grazing lease and permit for transferral to the Osmolaks when the $435,000 purchase price was paid in full. According to the contract, any breach of the agreement that led to the loss of either the grazing lease or the permit was a material breach.
¶5 By the fall of 1997, just three-and-a-half years after the sale, the Osmolaks had paid all but $500 of the $435,000 purchase price. By happenstance, they then learned through a conversation with an employee of the U.S. District Ranger office that the Olsons had had the permit reassigned to their own property the year before, and that the Olsons were selling some of their property with the stipulation that the permit would be waived back to the Forest Service. Mr. Osmolak and the Forest Service employee allege that the purpose of this waiver was to allow the Olsons to include the permit in a future land sale, despite that the Osmolaks were entitled to it per the agreement.
¶6 Based on this information, the Osmolaks believed the Olsons had breached the agreement with regard to the permit and feared the grazing lease was also in jeopardy. On November 19, 1997,. they filed suit against the Olsons, seeking injunctive relief. The object of the suit was to assure the Olsons’ compliance with the terms of the agreement, with respect to both the permit and the grazing lease. Judge McKittrick issued a temporary restraining order (TRO) on November 24, 1997, prohibiting the Olsons from taking any action that would jeopardize either the state lease or the permit.
¶7 A show cause hearing was set for December 3, 1997 and then rescheduled for December 9, 1997. Before the hearing, Russell Olson spoke with the Osmolaks’ attorney and assured him that the Olsons intended to perform as agreed in the buy-sell agreement. Given this assurance, the Osmolaks saw no need to continue with the litigation. The Osmolaks’ attorney, satisfied that the Olsons would comply with the terms of the agreement, filed a praecipe to dismiss the action without prejudice on December 8, 1997, fourteen days after the TRO was issued.
¶8 Following the dismissal of the Osmolaks’ suit, the Olsons sought an award of attorney fees and costs. The affidavit of attorney fees and costs the Olsons filed on December 10, 1997, indicated they had incurred $2,847.50 in attorney fees in the two weeks prior to the dismissal of the TRO. Judge McKittrick conducted a hearing on the Olsons’ motion and ruled on August 4, 1998, that he did not have jurisdiction to award fees, as his jurisdiction over the matter had terminated when the suit was dismissed.
¶9 In his order, Judge McKittrick addressed the underlying facts that led the Osmolaks to seek the TRO. He noted that “Defendant Russell Olson acknowledged [during the fee hearing] that the [Olsons] had without [the Osmolaks’] consent transferred the Forest Service permit [the Osmolaks] were ultimately to receive ...” He went on to explain that the temporary restraining orders issued by the court had:
simply restrained further transfer, conveyance or assignment of that permit, as well as the State of Montana grazing lease, and ordered the [Olsons] to apply to the U.S. Forest Service for assignment of the Permit and to do what was required to renew the State of Montana Grazing Lease [...], all acts that the Defendants through Russell Olson not only acknowledge were required of them pursuant to their agreement with [the Osmolaks], but are actions they in effect did take after dismissal of the within litigation. Russell Olson also did not dispute [the Osmolaks’] counsel’s in court statements ... that at the time of the first show cause hearing [the Olsons] had committed in the presence of counsel and Department of Interior representatives to cooperate with transfer of the permit and grazing lease to the [Osmolaks].
Judge McKittrick concluded his order by noting that the Osmolaks were “legitimately concerned” about the transfer of the grazing lease and permit to them; when they filed for the TRO, they had paid 99.9% of the $435,000 purchase price of the land.
¶10 After Judge McKittrick denied the Olsons’ motion for damages based on lack of jurisdiction, the Olsons instituted a new suit, the action forming the basis for this appeal. Once again, they sought damages from the Osmolaks based on wrongful injunction. The Osmolaks filed a counterclaim against the Olsons alleging malicious prosecution.
¶11 On January 14, 1999, the Olsons filed a motion for summary judgment, arguing that the Osmolaks’ voluntary dismissal of the TRO in the previous action had the same effect as a court decision finding that the Osmolaks were not entitled to the injunction. In response, the Osmolaks attempted to introduce into the record the reasons they had voluntarily dismissed the prior suit. The District Court, Judge Julie Macek presiding, relying on Hatch v. National Surety Corp. (1937), 105 Mont. 245, 72 P.2d 107, and Sheridan County Electric Co-Op, Inc. v. Ferguson (1951), 124 Mont. 543, 227 P.2d 597, disallowed the admission of this evidence, concluding the court had no discretion to look at why the Osmolaks dismissed the suit. The District Court granted summary judgment to the Olsons on June 5, 2001. The dismissal of the TRO prior to an adjudication on the propriety of the injunction was held to be an admission that the restraining order was without merit, entitling the Olsons to damages, including attorney fees and costs. On December 27,2001, after a hearing on fees at which the Osmolaks contested the reasonableness of the Olsons’ legal fees, the court awarded the Olsons $18,038.30 in fees and $225.83 in costs. The Osmolaks appeal.
STANDARD OF REVIEW
¶12 We review summary judgment orders de novo. May v. ERA Landmark Real Estate of Bozeman, 2000 MT 299, ¶ 17, 302 Mont. 326, ¶ 17, 15 P.3d 1179, ¶ 17. We use the same Rule 56, M.R.Civ.P., criteria as the district court. Montana Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d 694 (citing Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 927 P.2d 995, 997). The party seeking summary judgment must demonstrate a complete absence of any genuine issues of material fact and that they are entitled to judgment as a matter of law. Payne Realty and Housing, Inc. v. First Security Bank of Livingston (1992), 256 Mont. 19, 24, 844 P.2d 90, 93. “If, but only if, the party seeking summary judgment meets this burden, [must] the nonmoving party ... come forward with substantial and material evidence raising a genuine issue of material fact.” Shapiro, 283 Mont. at 474, 942 P.2d at 696.
¶13 The purpose of summary judgment is to encourage judicial economy through the elimination of an unnecessary trial. Payne Realty, 256 Mont. at 24, 844 P.2d at 93. However, “summaryjudgment is an extreme remedy which should never be substituted for a trial if a material factual controversy exists.” Shapiro, 283 Mont. at 474, 942 P.2d at 696.
DISCUSSION
ISSUE ONE
¶14 Did the District Court err in awarding summary judgment to the Olsons?
¶15 As indicated above, our inquiry upon review of summary judgment orders generally focuses on whether or not a genuine issue of material fact exists. In this case, however, the determinative question is whether or not the District Court erred as a matter of law when it declined to consider the factual circumstances underlying the dismissal of the TRO.
¶16 The Osmolaks ultimately dismissed the TRO voluntarily because-based on commitments by the Olsons-they became convinced the permit and grazing lease were secure pending their payment of the last $500 on the loan. They sought to offer evidence on this issue. The District Court concluded it had “no discretion to look at why the temporary restraining order was dismissed.” We disagree and, therefore, we reverse.
¶17 Section 27-19-306(4), MCA (2001), allows “a person who is wrongfully enjoined [to file] an action for any claim for relief otherwise available to that person in law or equity....” Because the TRO was voluntarily dismissed, there was no final court determination on the propriety-or lack thereof-of the restraining order. The Olsons argue that the Osmolaks’ voluntary dismissal of the TRO had the same effect as a court decision finding that the Osmolaks were not entitled to the injunction, therefore rendering the Osmolaks liable per se for damages under § 27-19-306(4), MCA.
¶18 The Osmolaks, on the other hand, contend that their voluntary dismissal of the TRO should not be deemed conclusive evidence that the injunction was wrongfully issued. Rather, they argue, the court should consider the circumstances surrounding the dismissal of the TRO. Their voluntary dismissal was not an indication that the TRO was wrongly issued. Instead, they argue, it was acknowledgment that the problem between the parties was resolved and that the Osmolaks felt secure that their property rights were appropriately protected.
¶19 Each party claims support for its position in Montana case law. The Olsons rely on Hatch and Sheridan. The District Court found the Olsons’ argument persuasive and rested its decision on these two cases. In Hatch, the Great Northern Railway Company sued Hatch and others in Cascade County to restrain them from operating a truck on public highways between Butte and Helena in violation of Montana law. Hatch, 105 Mont. at 247, 72 P.2d at 108. A temporary restraining order was issued November 28,1933, with a show cause hearing set to occur two weeks later, on December 12,1933. When they received the TRO, defendants immediately ceased their trucking business in compliance with the order. On December 9, 1933, three days prior to the show cause hearing, the railway company voluntarily dismissed the Cascade County suit and the TRO was dissolved. However, the day before, the same plaintiffs, the railway company, had instituted a new suit on the same cause of action against the same defendant, Hatch-this time in Lewis and Clark County-that resulted in the issuance of a TRO similar to the first. Hatch, 105 Mont. at 247-48, 72 P.2d at 108-09.
¶20 We noted in Hatch that the dissolution of the TRO came about at the request of the plaintiff railway company. As the basis for our holding that the railway company was not entitled to the first TRO-and thus was liable to Hatch for damages-we quoted 32 C.J. § 774, p.450 as follows: “The voluntary dismissal or discontinuance by plaintiff of the action in which the injunction was issued will have the same effect as a decision of the court that he was not entitled to the injunction, and gives rise to a cause of action on the bond.[sic]” Hatch, 105 Mont. at 249, 72 P.2d at 109. While we ended the quote as noted above, our citation was incomplete. 32 C.J. § 774, actually reads in pertinent part as follows:
The voluntary dismissal or discontinuance by plaintiff of the action in which the injunction was issued will have the same effect as a decision of the court that he was not entitled to the injunction, and gives rise to a cause of action on the bond, except in cases where there is some special statutory provision to the contrary, where the wording of the bond is such as to take the case outside the operation of the rule, where the dismissal was based only on the ground that the necessity for it has ceased, where the discontinuance was corruptly induced, or where the dismissal was the result of a voluntary agreement of the parties ... (Emphasis added.)
¶21 In Hatch, the plaintiff voluntarily dismissed the TRO only after seeking the same injunction against the same parties in a different jurisdiction. The exception italicized above obviously does not apply to the Hatch facts. The existence of this exception (and the others cited in the C.J.), however, requires that a party have the opportunity to show the reasons it dismissed a TRO voluntarily. If borne out on remand, the Osmolaks’ contention that they were justified in seeking and subsequently dismissing the TRO puts this case squarely within the exception delineated in the C.J. The exceptions set forth in the current version of 43A C.J.S. § 320, p.710, would also apply. After reiterating that liability for the party seeking the injunction “does not arise where the voluntary dismissal is based only on the ground that the necessity for injunctive relief has ceased,” the treatise goes on to provide that there is no liability if the voluntary dismissal “is brought about because of matters done or arising subsequent to the issuance of a proper injunction ...” In the case before us, it is certainly arguable that the Osmolaks voluntarily dismissed the injunction because the necessity for it had ceased. It is further arguable that the necessity had ceased precisely because of discussions and agreements between the parties subsequent to the issuance of the TRO, as it was the Olsons’ agreement to abide by the terms in the buy-sell agreement that rendered the TRO unnecessary. In any event, if the dismissal of the TRO could indeed fall within the above exception, then resolution of the issue without considering the underlying circumstances is inappropriate.
¶22 We also conclude that the District Court’s reliance on Sheridan was misplaced. The facts in Sheridan are broadly distinguishable from this case and, further, the central legal questions are different.
¶23 While the question in Sheridan was what conduct qualified as a final determination, here we seek to discern whether a voluntary dismissal of a TRO is per se equivalent to a court determination that an injunction was wrongly issued, or whether the court should consider evidence of the plaintiffs reasons for bringing and then dismissing the injunction action. Sheridan does not speak directly to this issue because under the facts in Sheridan there was no apparent evidence that the plaintiffs pursuit of the TRO was justified. The facts before us are quite different: in denying the Olsons’ motion for damages in the first action, the District Court that issued the TRO went out of its way to make it clear that the Osmolaks were justified in seeking the TRO. Thus, this case is clearly distinguishable from Sheridan.
¶24 We now turn to the precedent we find dispositive. In one of the first written opinions issued by this Court, we confronted a case remarkably similar to the one before us today. In Stewart v. Miller (1871), 1 Mont. 301, upon which the Osmolaks rely, the plaintiff reasonably and justifiably dismissed an injunction, only to find that the District Court refused admission of evidence about the reasons underlying the voluntary dismissal, and instead held the plaintiff liable for damages. We concluded the district court erred in disallowing this evidence. We held that a voluntary dismissal would constitute only prima facie evidence that a TRO was improperly issued. We said:
Where the dissolution of an injunction is not consequent upon a final determination or adjudication upon the merits of the action, the obligors in the bond may, according to the weight of authority and principle, show the facts and circumstances entitling them to the injunction, if not in full defense, at least in mitigation of damages in an action upon the bond, the order of dissolution being in such cases only prima facie evidence that the injunction was improperly issued ... otherwise, the obligees in a bond given in a cause in which the plaintiff was in equity entitled to the protection demanded, would, in an action upon the bond, stand upon the same footing in respect to damages recoverable, as though the injunction was obtained without a shadow of equity, or even maliciously, and through perjury. This we cannot believe to be the law, and the evidence offered in this action should have been admitted. (Emphasis in original.)
¶25 Given its legal and factual similarity to this case, we conclude that Stewart is controlling here. The Osmolaks were prevented from introducing into evidence any of the facts and circumstances that led to their dismissal of the TRO. As we indicated above, the Osmolaks had arguably valid reasons for voluntarily dismissing the TRO against the Olsons, and the District Court that issued the TRO made clear its view that the Osmolaks had legitimate grounds for seeking the TRO in the first place. In excluding the Osmolaks’ evidence in this proceeding, the District Court put the Osmolaks “on the same footing in respect to damages recoverable, as though the injunction was obtained without a shadow of equity, or even maliciously, and through peijury.” We cannot abide by that outcome.
¶26 It serves neither the ends of justice nor judicial efficiency to impose a rule that encourages continued litigation when that litigation has become unnecessary. Were we to hold that every voluntary dismissal of a suit in which an injunction was issued is incontrovertible evidence that the injunction was wrongly issued, we would in effect force plaintiffs like the Osmolaks to continue pursuing a matter through the courts despite an early resolution of the dispute: a voluntary dismissal would automatically and categorically expose them to a judgment for damages based on wrongful injunction, even in those cases where the injunction was fairly issued.
¶27 This case provides an excellent example of the wastefulness of such an approach. After the Osmolaks voluntarily dismissed the original suit in 1997, the Olsons claimed attorney fees in the sum of $3085.50. After the Olsons’ litigation was then pursued through two district courts over four years, the attorney fees claimed by the Olsons had ballooned to over $18,000, an increase in fees of over 500 percent. And this calculation does not account for the legal expenses incurred by the Osmolaks, nor those costs both parties undoubtedly incurred pursuing this appeal. All these resources were utilized over a TRO that was in effect for fourteen days.
¶28 Based upon the compelling reasoning in Stewart, and on concerns about the incentives created by a contrary conclusion, we hold that where an injunction is voluntarily dismissed by the party who instituted the suit, that party may introduce into evidence the facts and circumstances entitling them to the injunction and leading to its dismissal, in full defense, or at least in mitigation, of damages in a subsequent action for wrongful injunction. The order of dissolution in such cases shall be only prima facie evidence that the injunction was improperly issued, and such may be rebutted by the party against whom damages are sought.
¶29 The District Court’s decision to exclude evidence offered by the Osmolaks to show that they were entitled to the injunction, and to show why they dismissed it, was based on a misreading of Hatch and Sheridan. Neither case overrules Stewart. They are distinguishable. To whatever extent there was perceived conflict among the cases, our ruling today should clarify the issue.
¶30 For the foregoing reasons, we conclude the District Court erred as a matter of law in resolving this case on summary judgment. The Osmolaks should have been afforded the opportunity to present evidence demonstrating that they were entitled to the TRO they sought in 1997, and that their voluntary dismissal of the litigation was justified. Having reached this conclusion, we do not reach the second and third issues presented by the Osmolaks on appeal.
CONCLUSION
¶31 For the foregoing reasons, we reverse and remand this case to the District Court for further proceedings consistent with this Opinion.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART and RICE concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Perry Tschida (Tschida), Robert Rowe, Jr. (Rowe), and James Whaley (Whaley) own residential rental property in Missoula, Montana. A dispute arose over management of the property and Tschida sued Rowe. After Tschida failed to file a reply to a Counterclaim filed by Rowe and intervenor Whaley within the time mandated by the District Court, the court granted a default judgment against Tschida and in favor of Rowe and Whaley. Tschida moved to have the default judgment set aside and the District Court denied the motion. Tschida appeals from the denial of his motion to set aside the default judgment. We affirm.
ISSUE
¶2 The issue before this Court is whether the District Court erred when it failed to set aside the default judgment.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Tschida, Rowe and Whaley bought a house in Missoula, Montana, as co-tenants in common in 1993, and have used the house as residential rental property since that time. None of them currently lives in the house. A dispute arose between Tschida and Rowe over management of the property and access to financial records pertaining to the property and, in April 2001, Tschida sued Rowe. At the time Rowe answered the Complaint, Whaley moved to intervene in the proceeding. As a pleading attached to the motion to intervene, Rowe and Whaley submitted a Counterclaim; however, the Counterclaim was not filed of record at that time. Tschida moved to have the Counterclaim dismissed but the District Court entered an Order denying Tschida’s motion as premature since the Counterclaim had not been formally filed. In this same Order, the court also granted Whaley’s motion to intervene.
¶4 Following the District Court’s Order, Rowe and Whaley filed their Counterclaim with the Clerk of Court and served it on Tschida. Tschida promptly responded with another motion to dismiss. On September 17, 2001, the District Court denied Tschida’s motion to dismiss and concluded that Rowe’s and Whaley’s Counterclaim had been properly filed. The court noted in its Order that Tschida had previously filed motions that were “devoid of any merit,” and at least one motion that the court found “puzzling.” The District Court warned that it was “not inclined to decipher [Tschida’s] mystery filings and cast them within the form of some acceptable, meaningful motion,” and that further meritless filings could result in an award of attorney’s fees to Rowe and Whaley for having to file response briefs. The court then gave Tschida ten working days in which to respond to the Counterclaim under risk of default.
¶5 Tschida claims to have mailed his Reply to the Counterclaim to the Clerk of Court on September 27. As of October 9, the Clerk of Court had not received Tschida’s Reply, and Rowe and Whaley moved for default judgment. Tschida’s Reply was then filed on October 15. On November 13, the District Court granted Rowe’s and Whaley’s motion for default judgment. The court noted that, under its September 17 Order, the Reply should have been filed no later than October 4,2001.
¶6 Tschida moved to set aside the default judgment, explaining that his Reply, while mailed on September 27, was delayed by post-September 11 (9/11) mail delays and anthrax scares. The court had observed in its November 13 Order that pleadings signed and mailed by Tschida on October 2 and 4, respectively, arrived at the clerk’s office and were filed on October 9 and 10. Additionally, a pleading signed and mailed by Tschida on September 29 was received and filed by the clerk on October 5. However, the District Court did not formally act on Tschida’s motion to set aside the default judgment within sixty days, and therefore, in accordance with Rule 60(c), M.R.Civ.P., it was deemed denied. Tschida claims that the District Court’s granting the default judgment and its failure to set aside the default judgment constitute error. However, we note that in his Amended Notice of Appeal, Tschida only seeks review of the District Court’s failure to set aside the default judgment.
STANDARD OF REVIEW
¶7 As a general rule, cases should be tried on the merits and judgments by default are not favored. For this reason, our review of a district court’s ruling on a Rule 60(b), M.R.Civ.P., motion for relief from judgment depends on whether the motion was granted and judgment set aside. Bahm v. Southworth, 2000 MT 244, ¶ 4, 301 Mont. 434, ¶ 4, 10 P.3d 99, ¶ 4 (citing Karlen v. Evans (1996), 276 Mont. 181, 185, 915 P.2d 232, 235). Where, as here, a district court has refused to set aside the default, the proper standard of review is that a slight abuse of discretion will warrant reversal. Bahm, ¶ 4 (citation omitted). The party seeking to set aside a default judgment has the burden of proof. In re Marriage of Winckler, 2000 MT 116, ¶ 10, 299 Mont. 428, ¶ 10, 2 P.3d 229, ¶ 10 (citation omitted).
DISCUSSION
¶8 To determine whether the District Court erred in failing to set aside the default judgment, we first look at the circumstances under which the default judgment was entered. Primarily, Tschida argued that the default judgment should not have been entered because he mailed his Reply on September 27, and therefore he was in compliance with the District Court’s Order. He argued that postal services were disrupted by post-9/11 events, and therefore his delay was excusable. Additionally, he maintained that under Rule 12(a), M.R.Civ.P., he should have been allowed twenty days in which to reply.
¶9 There are several civil procedure rules that apply to the default judgment in this case. First, Rule 7(a), M.R.Civ.P., requires a reply to a counterclaim. Second, Rule 12(a), M.R.Civ.P., gives the replying party twenty days to reply or “such time as the [court] order otherwise directs.” Next, Rule 8(d), M.R.CÍV.P., establishes that “[a]verments in a pleading to which a responsive pleading is required,... are admitted when not denied in the responsive pleading.” And, lastly, Rowe and Whaley moved for judgment on the merits in their Counterclaim. Under Rule 54(c), M.R.Civ.P., a court may enter judgment by default if sought in the pleading in question. A party must reply to a counterclaim within twenty days or the time mandated by the court, and if it fails to do so the allegations in the counterclaim are deemed admitted and the opposing party may move for and secure a default judgment.
¶10 This is precisely what occurred in the case before us and the Court correctly applied these relevant rules. As expressly allowed in Rule 12(a), the court established the time within which Tschida was to file his Reply to the Counterclaim. Tschida failed to comply. The court considered Tschida’s explanation but was unpersuaded, correctly observing that filings by Tschida signed and mailed on September 29, October 2, and October 4 all were received by the clerk and filed before Tschida’s Reply was received. Moreover, as a result of his failure to file a timely Reply, the allegations in the Counterclaim were deemed admitted and Rowe and Whaley lawfully moved for default judgment which was granted.
¶11 Tschida timely moved to set aside the default judgment, arguing that he met the statutory requirements under Rules 55(c) and 60(b), M.R.Civ.P. The District Court did not rule on Tschida’s motion to set aside the default within sixty days, and therefore, under Rule 60(c), it was deemed denied. Tschida subsequently filed his notice of appeal of the District Court’s denial.
¶12 Tschida’s reliance on Rule 55(c) is misplaced. In Greenup v. Russell, 2000 MT 154, 300 Mont. 136, 3 P.3d 124, we noted that Rule 55(c), M.R.Civ.P., applies to setting aside a default entered by a clerk, which is different from a default judgment entered by the court. To set aside a default judgment entered by the District Court, Tschida must satisfy Rule 60(b). Rule 55(c), M.R.Civ.P., Greenup, ¶ 11.
¶13 Rule 60(b), M.R.Civ.P., allows a default judgment under certain circumstances. Tschida appears to rely on Rules 60(b)(1) and (b)(6)-(b)(l) mistake, inadvertence, surprise, or excusable neglect; and (b)(6) any other reason justifying relief from the operation of the judgment.
¶14 A “mistake” is defined for Rule 60(b) purposes, as “some unintentional act, omission, or error arising from ignorance, surprise, imposition, or misplaced confidence. ” Winckler, ¶ 22 (Default resulting from mistake made by pro se defendant who was unintentionally misled by opposing counsel was set aside). See also In re Marriage of Martin, 265 Mont. 95, 101, 874 P.2d 1219, 1223-24; In re Marriage of Broere (1994), 263 Mont. 207, 210, 867 P.2d 1092, 1094. Tschida claims that he held “mistaken beliefs involving his answer and the usual time limits” and that he “misplaced his confidence” in the U.S. Postal Service.
¶15 The District Court’s Order expressly told Tschida that he must respond to the Counterclaim within ten days; therefore, there should have been no mistake or confusion about “the usual time limits,” i.e., twenty days. Moreover, Tschida filed several other documents that were mailed within days of when his Reply should have been mailed and all arrived in a timely manner. Additionally, and perhaps most significantly, Tschida is a licensed attorney and current member of the State Bar of Montana. In Gergen v. Pitsch (1981), 194 Mont. 70, 72, 634 P.2d 652, 653, we held that a non-lawyer defendant was sufficiently literate and intelligent to understand the documents presented by opposing counsel and respond accordingly. A lawyer should be held to at least as stringent a standard. Lastly, we note that the District Court had chastised Tschida previously for delaying the proceedings as well as unnecessarily convoluting them, and for filing meritless pleadings. The “mistake” complained of by Tschida does not rise to a level that warrants setting aside the default judgment. Thus, we cannot conclude that the court’s refusal to accept this argument was an abuse of discretion.
¶16 Having determined that Rule 60(b)(1) applies to the case before us we need not determine whether the “extraordinary circumstances” required by Rule 60(b)(6) are present. In Karlen v. Evans (1996), 276 Mont. 181, 915 P.2d 232, we clarified that relief is available under Rule 60(b)(6), M.R.Civ.P., for situations other than those enumerated in the first five subsections of the rule.
¶17 Tschida has not met his burden of proof under Rule 60(b), M.R.Civ.P., to set aside the default judgment and has failed to establish any abuse of discretion on the part of the District Court.
CONCLUSION
¶18 For the foregoing reasons, we affirm the District Court.
CHIEF JUSTICE GRAY, JUSTICES LEAPHART and REGNIER concur.
|
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Appellant David Leroy Rolf (David) filed a petition for dissolution of marriage in the Fourth Judicial District Court, Missoula County. He appealed the determination of the district court awarding marital assets to his former spouse, Christine Marie Rolf (Christine). This Court remanded for further determinations regarding the value of the estate and its distribution. In Re Marriage of Rolf, 2000 MT 361, 303 Mont. 349, 16 P.3d 345 (Rolf I). On remand, the district court awarded Christine a smaller portion of the marital estate and maintenance. David now challenges the order and judgment of the district court. We affirm in part and remand in part.
ISSUES
¶2 We restate the issues on appeal as follows:
1. Did the district court exceed its jurisdiction when it distributed marital assets and awarded maintenance following remand?
2. Did the district court err in finding that the marital estate had appreciated and in distributing the appreciated value?
3. Was the district court’s award of maintenance supported by the evidence?
4. Did the district court deny David due process of law?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 This is the second appeal to come before this Court in this matter. Most of the relevant facts were set out in our previous opinion. See Rolf I.
¶4 To summarize, David and Christine had a tumultuous five-year relationship. They met in mid-1993 in Arizona and lived together there from February 1994 to June 1995. In early 1995, David bought residential and ranch property in the Bitterroot Valley in Montana. He asked Christine to move there with him to share in the “Montana Dream.”
¶5 In June 1995, Christine took a leave of absence from her job with the Scottsdale Memorial Hospital in Arizona, sold her horse and car, and moved to Montana to share the home David had purchased. However, due to turmoil between the parties, Christine left the relationship in August 1996 and regained her former position at Scottsdale Memorial Hospital.
¶6 David followed Christine to Arizona and convinced her to marry him and return to Montana. David promised to put $10,000 in an account for Christine to ensure that she would have funds to live on temporarily if the marriage fell apart. The couple was married on November 29,1996 in Arizona. Upon leaving for Montana with David the second time, Christine terminated her employment with the hospital in Arizona, rather than take a leave of absence as she did the first time.
¶7 Prior to the marriage, David had a net worth of nearly $1,000,000. Among David’s premarital assets was the Bitterroot Valley property. Christine did not contribute to the purchase price of this property and she did not bring any substantial assets to the marriage.
¶8 David and Christine experienced marital difficulties soon after their marriage. They separated in January 1998. On August 11,1998, the district court, the Honorable John W. Larson presiding, awarded Christine temporary maintenance. Trial on the dissolution was held on February 4, 1999. On April 2, 1999, the district court entered its Findings of Fact, Conclusions of Law, and Decree of Dissolution.
¶9 The district court found that the marital estate had increased $78,778 in value. Christine was principally awarded $80,000 of the value of the Bitterroot Valley home, a Ford Bronco, and a horse. The court also ordered David to pay $3,000 in credit card debt and Christine’s $1,200 outstanding debt to her therapist, plus $4,000 for future counseling sessions. The court did not enter a specific award of maintenance, finding an “award of maintenance to be inappropriate in this matter in view of the allocation of property.” David appealed.
¶10 David’s primary contentions in his first appeal were that his marriage to Christine was of such brief duration that Christine should not have been awarded property, and that the Bitterroot Valley home was a pre-marital asset that should not have been included in the estate. He also maintained that the estate did not increase in value during the marriage.
¶11 On December 27, 2000, we issued our decision in Rolf I. We affirmed the district court’s decision to consider the parties’ premarital cohabitation in apportioning the marital estate. However, we found that:
[the] district court abused its discretion when it included the Bitterroot Valley home in the marital estate and awarded a portion of the value of the home to Christine without a finding that the home appreciated in value during the term of the marriage and that Christine’s contributions ‘facilitated the maintenance of this property1 or that the property division ‘served as an alternative to maintenance arrangements.’ Section 40-4-202, MCA.
We remanded the case to the district court for a determination of the appreciated value of the marital assets and an equitable distribution of the appreciated value of those assets.
¶12 Upon remand, Judge Larson recused himself and the Honorable Ed McLean assumed jurisdiction. A remand hearing was then held. The district court issued its Findings of Fact, Conclusions of Law and Order on December 26, 2001.
¶13 The court adopted most of the findings from the first decision of the district court, including the finding that the marital estate had increased $78,778 in value during the parties’ cohabitation and marriage. The court employed the following language in its opinion:
Rather than award Christine a disproportionate share of the appreciated marital estate in lieu of maintenance or support, this Court finds that Christine should be awarded thirty-nine thousand ($39,000) dollars of the increased marital estate, and maintenance and support in the amount of two thousand ($2000) dollars per month ... for a period of twenty-four months. This conclusion is reached in accordance with the Supreme Court’s Opinion commenting on the original decree not specifically mentioning marital asset distribution being done in lieu of maintenance or support. This award is made to restore Christine to the condition she was in prior to the marriage.
As explained below, this finding has plunged the parties and this Court into a second round of confusion in this case. David appeals.
STANDARD OF REVIEW
¶14 We review a district court’s division of marital property to determine whether the findings of fact on which the court relied are clearly erroneous. In re Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont. 299, ¶ 26, 961 P.2d 738, ¶ 26. If the findings are not clearly erroneous, we will affirm the distribution of property unless the court abused its discretion. Engen, ¶ 26. To conclude that a district court abused its discretion in a marital dissolution proceeding, we must determine that the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Engen, ¶ 26.
¶15 We review a district court’s interpretation of law de novo, to determine whether it is correct. Hayes v. Hayes (1994), 264 Mont. 350, 352, 871 P.2d 913, 914.
DISCUSSION
¶16 Did the district court exceed its jurisdiction when it distributed marital assets and awarded maintenance following remand?
¶17 David’s central argument on appeal is that the district court exceeded its jurisdiction by hearing issues outside the scope of our remand. Our opinion stated, in relevant part, that “we remand to the District Court for a determination, consistent with this opinion, of the appreciated value of the marital assets and an equitable distribution of the appreciated value of those assets.” David contends, therefore, that the only question properly before the court was a determination of the appreciated value of the marital assets, if any. He asserts that there was no basis for the maintenance award.
¶18 Christine argues, on the other hand, that Judge Larson did not award her maintenance because the monetary and property award she was granted in the first district court order — worth nearly $100,000 ~ was sufficient to meet her needs, thus obviating the need for maintenance. When that distribution of property was reversed by this Court, she maintains, the district court was obligated to reconsider both the distribution of assets between David and Christine and the provision of maintenance to Christine.
¶19 To properly address this appeal, we must briefly revisit Judge Larson’s opinion and our decision in Rolf I. The first district court decision was not a model of clarity, and as a consequence, our opinion in Rolf I failed to shed much light on it. In Judge Larson’s April 2,1999 Findings of Fact, he stated: “The Court finds ... the award of maintenance to be inappropriate in.this matter in view of the allocation of property set forth below.” Unfortunately, he also said, in awarding her $80,000 in value of the marital home, that such award was based on the “assets which she maintained and of which she facilitated the accumulation.” These signals were conflicting: was the award of $80,000 maintenance, or was it an award of marital property based upon her contribution to the increased value of the home?
¶20 In Rolf I, our conclusion that Judge Larson had abused his discretion in awarding Christine a portion of the value of the Bitterroot Valley home rested on the district court’s failure to find that “the home had appreciated in value during the term of the marriage and that Christine’s contributions ‘facilitated the maintenance of this property or that the property division ‘served as an alternative to maintenance arrangements.’ Section 40-4-202, MCA.” (Emphasis added.) We remanded for an answer to this question. Unfortunately, though, the failure of the district court to make its intentions clear prior to remand is a problem that has recurred in the proceedings leading to this appeal.
¶21 Section 40-4-202(1), MCA, states, in pertinent part, that in a proceeding for the division of property following a decree of 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. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance', and the opportunity of each for future acquisition of capital assets and income.
(Emphasis added.) The statute goes on to address the division of property acquired before marriage:
In dividing property acquired prior to marriage ... the could shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions of facilitated maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.
(Emphasis added.)
¶22 We take this opportunity to clarify the law with regard to the division of property acquired before marriage. We have previously stated that “regardless of who holds title, pre-acquired or gifted property need not be included in the marital estate unless the non-acquiring spouse contributed to its preservation or appreciation. In that event, we have held that the non-acquiring spouse is entitled to an equitable share of the appreciated or preserved value which is attributable to his or her efforts.” Engen, ¶ 29. However, as § 40-4-202(l)(c), MCA, makes clear, pre-acquired property can be distributed to a non-acquiring spouse in lieu of maintenance, regardless of whether she contributed to its increase in value, if “the property division serves as an alternative to maintenance arrangements.” Such an intent-to award the property in lieu of maintenance-must be clearly stated by the district court.
¶23 Thus, if the district court in the original proceeding had intended to award Christine $80,000 from the value of the marital home in lieu of maintenance, and had made such an intent clear, together with making the necessary findings supporting an award of maintenance, then the $80,000 award could conceivably have been sustained as maintenance, even without a showing that the home had increased in value and that Christine’s efforts facilitated the maintenance of the property.
¶24 Against this backdrop, we now reach the question of whether the district court exceeded its jurisdiction in distributing marital assets and awarding maintenance following remand.
¶25 It is well established that §§ 40-4-202 and -203, MCA, covering distribution of property and maintenance, respectively, “must be considered together.” In re Marriage of Hilt (1984), 209 Mont. 140, 146, 679 P.2d 783, 786. As indicated in the Commissioners’ Note to these statutes, the “dual intention [of the maintenance and property sections] is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance.” Hilt, 209 Mont. at 145, 679 P.2d at 786. Property and maintenance awards are to be considered in tandem, with a clear preference for awarding property first. Hilt, 209 Mont. at 145, 679 P.2d at 786.
¶26 The maintenance statute specifically contemplates consideration of the property distribution: in awarding maintenance, the court is ordered to consider “all relevant facts including the financial resources of the party seeking maintenance, including marital property apportioned to him...” § 40-4-203(2)(a), MCA. (Emphasis added.) Thus, it follows that when maintenance is an issue and a property award is disturbed on appeal, the district court may be compelled to reconsider the question of maintenance on remand, taking into account the changes in the allocation of property. In re Marriage of Davies (1994), 266 Mont. 466, 478, 880 P.2d 1368, 1376.
¶27 Because, as we have said, Judge Larson found that a maintenance award was inappropriate “in view of the allocation of property,” it is apparent that a need for maintenance factored into his decision. Thus, once we reversed the allocation of property, it was appropriate that the district court, on remand, revisit both the property allocation and the issue of maintenance. Therefore, we conclude the district court did not exceed its jurisdiction upon remand.
¶28 Did the district court err in finding that the marital estate had appreciated and in distributing the appreciated value?
¶29 In Rolf I we held that the district court abused its discretion when it included the Bitterroot Valley home in the marital estate and awarded a portion of the home’s value to Christine without a finding that the home had appreciated in value. We also found fault with the court’s conclusion that the marital assets had increased in value.
¶30 At the first trial, the district court relied on several documents offered by Christine to arrive at its finding that the marital estate had gained $78,778 in assets, consisting mainly of the value of horses, savings, and retirement. However, as we pointed out in Rolf I, “those same documents show that while the value of horses, savings, and retirement had increased by that amount, other assets markedly decreased, thus supporting David’s contention that the increase in the value of the horses, savings, and retirement were due in part to a shifting of assets.” We concluded that the evidence Christine presented was insufficient to demonstrate an increase in the value of the marital estate during the marriage. Accordingly, we remanded the case to the district court for a finding of the appreciated value of the marital assets.
¶31 Having reviewed the district court’s award following remand (see ¶ 13), we are unable to determine whether the award of $39,000 was meant by the court to supplement the $2,000 per month award of maintenance, or whether it was meant to be a separate award of property. The language of the court’s award can be read to support either conclusion. If we assume, as David does, that the court meant to award the $39,000 to Christine for the increase in value to the marital estate, Christine bore the burden of presenting evidence to support her contention that the marital assets increased in value. However, she presented no new evidence on this point. Despite our conclusion in Rolf I that there was insufficient evidence to support the first district court’s finding of a $78,778 increase in the value of marital assets, the district court adopted the same finding on remand. Because no additional evidence was offered to support this finding at the remand hearing, we must conclude that the determination that the marital assets gained nearly $79,000 in value was unsupported and was therefore erroneous.
¶32 Was the district court’s award of maintenance supported by the evidence?
¶33 We next turn to the district court’s discrete award of $2,000 per month maintenance for a period of 24 months. David contends the district court failed to make findings establishing that Christine was entitled to maintenance under Montana law. He further claims that the district court misstated the law in its Conclusions of Law awarding Christine maintenance.
¶34 Section 40-4-203, MCA governs awards of maintenance. The statute provides:
(1) In a proceeding for dissolution of marriage ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment...
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently ...
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established during the marriage;
(d) the duration of the marriage
(e) the age and physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.
¶35 Based on our review of the record, we conclude there was substantial evidence to support a maintenance award. While David claims the court “failed to make any findings of fact concerning maintenance,” the record contradicts this assertion. The court determined that “as a result of the Supreme Court’s determination to disallow the award by Judge Larson to Christine of the automobile which she regularly drove and a share of the marital residence value, she is without sufficient property to provide for her reasonable needs and is unable to support herself through reasonable employment, especially as a result of the expenses incurred through the litigation process.” This finding satisfies the statutory requirements for awarding maintenance, articulated in § 40-4-203(l)(a) and (b), MCA, and is amply supported by evidence in the record detailing Christine’s limited income and expenses.
¶36 Judge McLean specifically adopted most of Judge Larson’s factual findings, many of which speak directly to the issue of maintenance. Among other things, the district court found that Christine now earns only $17,000 year in secretarial work; she was nearly destitute after following David to Montana the first time, and was forced to sell personal property to David-including a toaster oven and an extension ladder-to raise funds to return to Arizona; and, at David’s urging, Christine left her job in Arizona, where she earned $12.40 an hour and had nine years seniority and health and retirement benefits, to marry David and follow him back to Montana. Moreover, after David filed for divorce and Christine moved from the marital home, she was without income or prospects for employment and did not receive any significant assistance from David. She was compelled by her circumstances to move into a basement office in the home of her daughter and son-in-law, a home also shared by Christine’s four grandchildren. The court further found that Christine suffered emotionally as a result of the relationship and initiated counseling to deal with the her problems. Christine’s therapist testified that Christine would require six to twelve months additional therapy to allow her to overcome the physical and emotional problems stemming from her relationship. (Section 40-4-203(2)(e) provides that the emotional condition of the spouse seeking maintenance is a factor to be considered by the district court in awarding maintenance.) Finally, the court found that if Christine returned to Arizona, she would not be able to regain her former employment at Scottsdale Memorial Hospital, and if she stays in Montana, she will earn much less, evidenced by her current pay rate of $8.50 per hour.
¶37 In addition to adopting these findings, Judge McLean also found that as of the December 18, 2001 hearing, David was earning approximately $100,000 a year, and that the marital estate was valued at approximately $1,000,000.
¶38 David strives mightily-though unpersuasively-to argue that maintenance is inappropriate in a marriage of short duration. He cites In re Marriage of Bradshaw (1995), 270 Mont. 222, 237-238, 891 P.2d 506, 515. Bradshaw, however, was an exceptional case, in which the assets at issue had been paid for by the husband prior to the marriage, and the husband suffered a severe brain injury that left him partially paralyzed and caused learning disabilities. The wife, on the other hand, was able-bodied and had much brighter work prospects. Moreover, the court noted the short duration of the marriage-five months-as one factor counseling against a property or maintenance award for the wife. Actually, in the bulk of cases in which maintenance awards were contested on the grounds that the marriage was of short duration, we have upheld the awards. See, e.g., In re Marriage of Forney (1986), 221 Mont. 63, 716 P.2d 635; In re Marriage of Eschenbacher & Crepeau (1992), 253 Mont. 139, 831 P.2d 1353; In re Marriage of Cannon (1990), 242 Mont. 230, 790 P.2d 479.
¶39 Finally, David argues that we should reverse the award of maintenance to Christine because the district court based the award on an incorrect statement of the law. David challenges the following two conclusions of law in the district court order:
5. Maintenance would be appropriate under the circumstances where limited marital property has been apportioned to [Christine], her ability to meet her needs independently is limited, the standard of living established during the marriage was significantly superior to that in which she has found herself since the dissolution, and David has substantial resources with which to meet his needs while meeting those of Christine and his ability to place her in a similar position that she was in prior to the marriage.
6. Rather than award Christine a disproportionate share of the appreciated marital estate in lieu of maintenance or support, this Court finds that Christine should be award thirty-nine thousand ($39,000) dollars of the increased marital estate, and maintenance and support in the amount of two thousand ($2000) dollars per month ... for a period of twenty-four months. This conclusion is reached in accordance with the Supreme Court’s Opinion commenting on the original decree not specifically mentioning marital asset distribution being done in lieu of maintenance or support. This award is made to restore Christine to the condition she was in prior to the marriage.
(Emphasis added.)
¶40 David is correct that the appropriate aim of a maintenance award is not to place the recipient of the award in the position she occupied prior to the marriage; rather, the relevant question in determining whether maintenance is appropriate “is whether the spouse seeking maintenance lacks sufficient property and is unable to support herself through appropriate employment according to the standard of living established during the marriage.”In re Marriage of Madson (1978), 180 Mont. 220, 224-25, 590 P.2d 110, 112. (Emphasis added.) There seems little doubt that, given David’s income and net worth, Christine’s limited hourly wages would not allow her to support herself according to the standard established during her marriage to David, who has accumulated an estate worth $1,000,000.
¶41 While the district court did misstate the aim of the maintenance award in its Conclusions of Law, this is harmless error. As we have said before, “we will affirm a district court’s decision when it reaches the correct result for the wrong reasons.” State v. Wagner, 2003 MT 120, ¶ 32, 315 Mont. 498, ¶ 32, 68 P.3d 840, ¶ 32. That is the case here.
¶42 The district court’s decision to award maintenance was supported by appropriate findings of fact which were, in turn, amply supported by the record. Accordingly, we affirm the award of maintenance to Christine.
¶43 Did the district court deny David due process of law?
¶44 Finally, David claims that he was denied due process of law in the dissolution proceedings on remand. He maintains he was unfairly denied sufficient time to present his case. Judge McLean commented that he had to be at a meeting that could not be rescheduled, and gave David “about twenty minutes” to present his case. David did not, however, object at the remand hearing and thus failed to preserve his right to appeal on these grounds. Further, he cites no authority to support his argument that time limits constitute a denial of due process. As Christine points out, she, too, was constrained by time limits.
CONCLUSION
¶45 Based upon the foregoing, we affirm the order of maintenance in the sum of $2,000 per month for 24 months, and we remand for clarification of the balance of the court’s award in the sum of $39,000. If this was intended as a supplement to the 24-month maintenance award, such should be clearly stated and supported by the record. If it was intended as a distribution of the increased value of the marital estate, then, for the reasons set forth in ¶ 31, it shall be vacated.
¶46 In all other respects, the order of the district court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES RICE, NELSON and REGNIER concur.
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JUSTICE COTTER
delivered the Opinion of the Court.
¶ 1 J anice Christofferson (J anice) brought this action against the City of Great Falls (City or GF) in the Montana Eighth Judicial District Court to recover damages for personal injury and the wrongful death of her husband, Ron Christofferson (Ron). The jury returned a verdict for the City and the District Court entered judgment on the verdict. Janice appeals from various evidentiary rulings by the District Court and from the judgment. We affirm.
ISSUES
¶2 Janice presents the following issues on appeal:
¶3 1. Did the District Court err in permitting the City’s expert to render an opinion based on medical articles that were not applicable to the facts of the case?
2. Did the District Court err in permitting the City’s expert to testify from a medical article the existence of which he had previously denied and from articles that had not been disclosed?
3. Did the District Court err in permitting paramedic, Kendall Neff, to estimate the time lapse from arrival of the ambulance to intubation based on “habit”?
4. Did the District Court err in refusing to instruct the jury on concurring, independent causes, which was a central theory of Janice’s case?
5. Did the District Court err in refusing to instruct the jury on the burden of proof in the case of a single indivisible injury, which was a central theory of Janice’s case?
6. Did the District Court err in excluding evidence of a cover-up which related to the dispatcher’s credibility?
7. Did the District Court err in excluding testimony of the paramedics regarding the resuscibility of Ron Christofferson at the scene?
8. Did the District Court err in excluding the testimony of Janice’s economist on the value of loss of enjoyment of life?
¶4 By way of its cross-appeal, the City questions whether the District Court erred in deciding that hedonic damages are a proper element of damages in a survival action where the decedent survived, but did not consciously experience a loss of enjoyment of life.
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Shortly after midnight on April 3,1998, Ron Christofferson, who suffered from asthma, experienced a respiratory arrest and collapsed, unable to breathe. His wife, Janice, called 9-1-1 and reported that her husband was “not breathing.” She told the dispatcher that her address was 1909 2nd Street South. Rome Toren and Pam Bramlett, 9-1-1 dispatchers for the City of Great Falls, took the call and dispatched an ambulance. Bramlett erroneously dispatched the ambulance to 1909 2nd Avenue South. Upon arriving at the 2nd Avenue address, the paramedics notified the dispatchers of the mistake. The dispatchers provided the correct address and immediately notified the police of the emergency at the Christofferson’s home. A police officer on patrol near the home arrived seven minutes after the original dispatch. Upon arrival, the police officer and Janice performed CPR until the ambulance arrived.
¶6 The paramedics and the ambulance arrived approximately 12.5 minutes after the original dispatch. At the time the paramedics arrived, they were able to discern a weak pulse and observed that Ron was experiencing a slow heart beat, known as a bradycardia heart rhythm. They also recognized that Ron had vomited and aspirated vomitus into his lungs. Paramedic Pat Songer cleared Ron’s mouth and airway and intubated him. Paramedic Kendall Neff administered the necessary intravenous drugs and handled the heart monitor. Once Ron was stabilized, the paramedics transported him to the hospital. Ron never recovered consciousness and died approximately two and one-half days later.
¶7 Prior to trial, the City admitted its negligence but denied that its negligence caused Ron’s death. A jury trial was held on June 4, 2001. On June 11, 2001, the jury issued a special verdict in which it held that the City’s negligence in dispatching the ambulance to the wrong address was not a substantial factor in causing Ron’s death. The court subsequently entered judgment in favor of the City. Janice appeals.
STANDARD OF REVIEW
¶8 We review a court’s rulings on the admissibility of evidence to determine whether the court abused its discretion. State v. Bingman, 2002 MT 350, ¶ 19, 313 Mont. 376, ¶ 19, 61 P.3d 153, ¶ 19 (citation omitted). Absent a showing of such abuse we will not overturn a district court’s decision. Bingman, ¶ 19. Moreover, “the trial court is vested with great latitude in ruling on the admissibility of expert testimony.” Baldauf v. Arrow Tank and Engineering, 1999 MT 81, ¶ 22, 294 Mont. 107, ¶ 22, 979 P.2d 166, ¶ 22 (emphasis in original)(citation omitted).
¶9 A district court has discretion regarding the instructions it gives or refuses to give to a jury and we will not reverse a district court on the basis of its instructions absent an abuse of discretion. Kiely Const. L.L.C. v. City of Red Lodge, 2002 MT 241, ¶ 62, 312 Mont. 52, ¶ 62, 57 P.3d 836, ¶ 62 (citation omitted). In reviewing whether a particular jury instruction was properly given or refused, we consider the instruction in its entirety, as well as in connection with the other instructions given and with the evidence introduced at trial. Kiely, ¶ 62. The party assigning error to a district court’s instruction must show prejudice in order to prevail, and prejudice will not be found if the jury instructions in their entirety state the applicable law of the case. Kiely, ¶ 62. See also, Barnes v. City of Thompson Falls, 1999 MT 77, ¶ 8, 294 Mont. 76, ¶ 8, 979 P.2d 1275, ¶ 8 (A trial court is imbued with broad discretion to determine whether or not it will give a proposed instruction to the jury....).
DISCUSSION
¶10 The first two issues we address are whether the District Court erred in permitting the City’s expert to 1) render an opinion based on medical articles that were not applicable to the facts of the case, and 2) testify from a medical article the existence of which he had previously denied and from articles that had not been disclosed.
¶11 We begin our analysis of evidentiary rulings pertaining to expert witness testimony with the recognition that the determination of the qualification of an expert witness is a matter largely within the discretion of the trial judge and such a determination will not be disturbed absent an abuse of discretion. In re Custody of Arneson-Arneson, 2001 MT 242, 307 Mont. 60, 36 P.3d 874. Additionally, we note that expert opinion testimony is subject to several caveats. Under Rule 702, M.R.Evid., opinion evidence from a qualified expert is admissible if specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Such expert testimony requires that a proper foundation be established. Expert testimony must also satisfy the relevancy rules set forth in Article IV of the Montana Rules of Evidence. Moreover, full disclosure during discovery -under Rule 26, M.R.Civ.P., is designed “to eliminate surprise and to promote effective cross-examination of expert witnesses.” Hawkins v. Harney, 2003 MT 58, ¶ 21, 314 Mont. 384, ¶ 21, 66 P.3d 305, ¶ 21 (citation omitted).
¶12 In the case before us, both Janice and GF called medical expert witnesses. The parties presented the necessary foundation to qualify these medical professionals as experts in their field and the court accepted both Drs. Knapp and Watson as experts. Janice maintains that Dr. Knapp, GF’s expert witness, based his opinion of Ron’s survivability on medical articles that were irrelevant and/or undisclosed prior to trial. She claims that the disclosed articles relied upon by Knapp were written to address incidents of cardiac, rather than respiratory, arrest. As a result of the inapplicability of the articles’ conclusions, she contends, Knapp gave irrelevant but prejudicial testimony.
¶13 Our review of the voluminous transcript reveals that Janice’s expert, Dr. Watson, provided testimony that directly refuted Knapp’s testimony as to the relevancy and applicability of these articles to Ron’s condition. Moreover, Janice aggressively cross-examined Knapp.
¶14 For a court to abuse its discretion, it must act arbitrarily, without employment of conscientious judgment, or exceed the bounds of reason resulting in substantial injustice. Perdue v. Gagnon Farms, Inc., 2003 MT 47, ¶ 8, 314 Mont. 303, ¶ 8, 65 P.3d 570, ¶ 8. In the case before us, both parties’ expert witnesses presented extensive testimony and both parties were allowed to fully cross-examine the other party’s expert. Additionally, the District Court instructed the jury that they were not bound by either expert’s opinion and that they were to determine the weight to be given to each expert’s testimony based upon the expert’s qualifications and credibility. Under these circumstances, we cannot conclude that the District Court abused its discretion.
¶15 Janice further asserts that Knapp gave testimony based on articles that had not been disclosed prior to trial and that, as a result of this “surprise” testimony, she was unprepared to effectively cross-examine Knapp and was therefore further prejudiced. The trial transcript reveals, however, that Jardee did cross-examine Knapp on one of the undisclosed articles, during which Knapp admitted he had not previously disclosed the existence of the article. Furthermore, Janice effectively attacked both the relevancy of the article and Knapp’s credibility on the basis of the article. As to the second undisclosed article Janice challenges, Janice’s expert testified that he was familiar with the article and discredited its relevancy when he explained that articles deriving from cardiac arrest were not pertinent or applicable to Ron’s condition. Again, under these circumstances, we cannót conclude that the District Court abused its discretion by permitting Knapp to testify from these articles.
¶16 We next determine whether the District Court erred in permitting paramedic Kendall Neff to estimate the time lapse from arrival of the ambulance to intubation based on “habit.” Janice alleges that this testimony was irrelevant, without foundation and clearly prejudicial.
¶17 Two paramedics for the City of Great Falls responded to the 9-1-1 call from Janice-Kendall Neff and Pat Songer. Upon their admittedly delayed arrival, both experienced paramedics proceeded to assess Ron’s condition and begin treating him. The paramedics testified that when two paramedics respond to an emergency call, the required medical duties are divided between them. In Ron’s case, Songer intubated Ron while Neff secured the heart monitor and administered intravenous medication. Songer testified generally that after clearing a patient’s airway, which was required in Ron’s case, it usually takes him less than thirty seconds to intubate. Neff testified that he did not witness Songer intubate Ron, but had no reason to dispute the time it took for Songer to intubate Ron.
¶18 In addition to questioning Neff about Songer’s performance at the Christofferson home, GF questioned Neff generally about the manner in which Neff himself performed various emergency paramedic techniques, including how Neff cleared a patient’s airway and intubated a patient. Janice claims that Neff testified it would have taken between two and five minutes to intubate Ron after arriving at the residence, and that this testimony undercut the testimony of the paramedic who actually performed Ron’s intubation. Our review of the following testimony suggests that this is a slight mischaracterization:
Cross Examination:
GF: And I would also like you to assume that you have someone who has aspirated and you had to perform suction prior to intubation.
Neff: Okay.
GF: And based upon these assumptions, would you agree that from the time you entered the door of the residence until intubation was complete it would take two to five minutes?
Neff: I would guesstimate it would take right around two minutes to do. But that’s with everything else being done, oxygenation, suctioning, bag valve maskings, CPR, yes.
GF: So you would agree, in fact you told me, didn’t you, given these assumptions, that it would take two to five minutes based upon your experience in doing this previously?
Neff: Yes. With me being the only paramedic out there, yes.
GF: And we know that it would have taken a little bit longer with [Ron] because someone has to go back to the ambulance and get the battery-operated suction device, don’t they?
Neff: No. I think actually it would be shorter with [Ron] with two paramedics there.
Re-direct Examination:
Janice: Is that a two-minute estimate, Kendall, based upon one person doing it?
Neff: Yes.
Janice: Of course, that wasn’t the case here, was it?
Neff: No.
¶19 Janice asserts that the District Court abused its discretion by allowing this testimony. We disagree. Even assuming that Janice’s concerns of relevancy and “habit” foundation have merit, given that the jury had the benefit of Songer’s testimony, we conclude that the admission of this testimony does not rise to a reversible abuse of discretion. “An abuse of discretion in an evidentiary ruling does not necessarily constitute reversible error.... ‘Error may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected’ (citation omitted). In other words, ‘a reversal cannot be predicated upon an error in admission of evidence, where the evidence in question was not of such character to have affected the result.’ ” In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, ¶ 55, 995 P.2d 427, ¶ 55. From the transcript excerpt quoted above, it appears that Neffs testimony did not contradict or undercut Songer’s testimony in any significant fashion. Moreover, Janice cross-examined Neff, further establishing for the jury that the extended time for intubation was inapplicable to the instant situation involving two paramedics. We therefore conclude that Janice has failed to show that her substantial rights were affected by the admission of this testimony.
¶20 We next address whether the District Court erred in refusing to instruct the jury on concurring, independent causes, which was a central theory of Christofferson’s case.
¶21 Both parties submitted proposed jury instructions for the court’s approval and presentation to the jury. The transcript contains several pages of jury instruction discussions, held outside of the presence of the jury, that took place over multiple days. In one such discussion, Janice offered several alternate jury instructions addressing the concept of concurring, independent causes of Ron’s death. Specifically, her proposed jury instruction No. 10 read:
Except as stated in sub-section (2), the City of Great Falls’ negligent conduct is not a substantial factor in bringing about harm to Ron Christofferson or Jan Christofferson if the harm would have been sustained even if the City of Great Falls had not been negligent.
(2) If two forces are actively operating, one because of the City of Great Falls’ negligence, the other not because of any misconduct on the City of Great Falls’ part, and each of itself is sufficient to bring about the injury to Ron Christofferson or Jan Christofferson, then the City of Great Falls’ negligence may be found to be a substantial factor in bringing the injury about.
¶22 GF challenged this jury instruction, arguing that it was inapplicable and inappropriate under the facts of this case. GF asserted that the language in sub-section (2) of the proposed instruction requires that each force, of the two actively operating forces, had to be independently sufficient to bring about Ron’s death. GF maintained that but for Ron’s pre-existing illness causing a respiratory arrest, the delay of the ambulance did not matter. In other words, without the respiratory arrest, the delay of the ambulance could not have caused any harm; therefore the ambulance delay, by itself, was not sufficient to cause Ron’s death.
¶23 Following several minutes of discussion on this particular proposed instruction, the court asked Janice’s attorney to respond, at which point, the following conversation occurred:
Janice: Know what, Judge, everyone has convinced me. I’m going to withdraw.
Court: You are?
Janice: Yeah.
Court: What are you withdrawing?
Janice: Well, 10 -
Court: Let me just get my list. 10.
Janice: 11, 12.
(Instructions 11 and 12 were simply variations on the theme of Instruction No. 10).
¶24 On appeal, Janice argues that 1) she has no recollection of withdrawing Proposed Instruction No. 10; 2) she thought its offer had been denied; 3) the court reporter’s punctuation made it appear that it had been withdrawn; and 4) if such a withdrawal did occur, it was inadvertent. GF argues on appeal that Janice withdrew the proposed instruction and should not now be allowed to claim she did not. In the alternative, GF argues that, even if not withdrawn, the proposed instruction was still inapplicable and the instruction issued by the District Court was a correct statement of the law.
¶25 The record reflects that Janice did in fact withdraw her Proposed Instruction No. 10. However, even if we assume for the sake of argument that she did not, we cannot read section (2) of the proposed instruction as Janice wants us to do. The plain language of the instruction compels us to conclude that GF’s interpretation is correct. Each of the two forces addressed in this section must, by definition, be “of itself... sufficient” to bring about the harm to Ron. The delay in the arrival of the ambulance, standing alone, would not be sufficient to harm Ron-indeed, the ambulance would not have been needed at all but for Ron’s respiratory arrest. Therefore, the instruction simply does not fit the facts before the jury.
¶26 The District Court did instruct the jury as follows:
City of Great Falls is liable if its negligence was a cause of injury or death to Ron Christofferson or a cause of injury to Jan Christofferson.
The City of Great Falls’ conduct is a cause of Ron Christofferson’s injury or death or a cause of injury to Jan Christofferson if it is a substantial factor in bringing the injury or death about.
We conclude that, given the facts of this case, this was a correct statement of the law. As noted above, we will not reverse if the jury instructions in their entirety state the applicable law of the case. Kiely, ¶ 62.
¶27 The next issue before us is whether the District Court erred in refusing to instruct on the burden of proof in the case of a single indivisible injury, which was a central theory of Christofferson’s case.
¶28 Janice argues that the District Court abused its discretion when it refused to give two jury instructions shifting the burden of proof from her to GF upon her prima facie showing that GF’s negligence was a substantial factor in causing harm to Ron. As we indicated above, a district court has broad discretion regarding the instructions it gives or refuses to give to a jury and we will not reverse a court on the basis of its instructions absent an abuse of discretion. Kiely, ¶ 62. Moreover, an abuse of discretion is not reversible error absent prejudice. In re A.N., ¶ 55.
¶29 The requested and denied jury instructions were as follows:
Proposed Instruction No. 14
If you find that the negligence of City of Great Falls was a substantial factor in bringing about the injury or death to Ron Christofferson, and if you find that such negligence has contributed to the confused situation that makes it difficult to prove whether the injury or death were caused by City of Great Falls’ negligence or by Ron Christofferson’s preexisting condition, then the City of Great Falls is liable for the entire amount of damages.
Proposed Instruction No. 15
Where a preexisting condition exists which has been aggravated by another’s negligence, it is your duty, if possible, to apportion the damage between that caused by the preexisting condition and that cause by the negligence. But if you find that the evidence does not permit such an apportionment, then the City of Great Falls is liable for the entire amount of the damage.
These instructions went to damages and were dependent upon the jury first finding that GF’s negligence was a substantial factor in Ron’s injury and death. Because the jury found that GF’s negligence was not a substantial factor in Ron’s death, the court’s refusal to give the jury instructions did not prejudice Janice. See Stenberg v. Neel (1980), 188 Mont. 333, 339, 613 P.2d 1007, 1011 (reversible error cannot be predicated on damage instructions when the jury’s verdict is such that the jury does not reach the issue of damages). We therefore affirm the District Court on this issue.
¶30 We next address whether the District Court erred in excluding evidence of a cover-up which related to the dispatcher’s credibility.
¶31 Dispatcher Rorrie Toren took Janice’s 9-1-1 call the night her husband fell ill. He testified that he correctly relayed the address to Dispatcher Pam Bramlett but Bramlett inadvertently conveyed the wrong address to emergency responders. Toren, who was the shift supervisor that night, testified in the presence of the jury that he did not report this error to his supervisor, did not prepare a written report of the error, and did not preserve the tape of the 9-1-1 call.
¶32 Janice testified that she did not learn the reason for the ambulance’s delay until several months after Ron’s death. She now alleges that the City engaged in a “cover-up” of this event. She argues that the District Court abused its discretion when it granted a motion in limine, following Toren’s above-described testimony, prohibiting her from “eliciting any testimony or arguing to the jury that the City, following the dispatch of the ambulance to the wrong address, made no report, made no report to the supervisor, that [Toren’s supervisor] took no action, or that no action was taken against Pam Bramlett, who was the individual that made the wrong dispatch.”
¶33 In support of its motion in limine, GF argued that such testimony was irrelevant. It maintained that the purpose of this case was to determine whether GF’s admitted negligence in dispatching the ambulance to the wrong address caused Ron’s death, and that a dispatcher’s failure to generate a report of the error after it occurred was irrelevant to causation. Moreover, GF argued that such testimony was inflammatory and designed to imply that the City did not care enough about Janice or Ron Christofferson to generate a report of their error. Janice countered that such testimony went to Toren’s credibility and, therefore, was relevant under Rule 401, M.R.Evid.
¶34 Without explaining its decision, the District Court granted the City’s motion in limine. Upon review of the transcript and the parties’ arguments, we fail to see the relevancy of the “cover-up” testimony. Relevant evidence is defined at Rule 401, M.R.Evid., as that"... having 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.” Given that GF admitted its negligence, Toren’s failure to report the address snafu to his supervisor does not make the City’s negligence or liability for Ron’s death any more or less probable. More to the point, given the admission of negligence, we cannot conclude that the credibility of the dispatcher, even if damaged by the revelation, would have any bearing on the case, nor has Janice informed us how the impairment of his credibility would matter. Therefore, we cannot conclude that the District Court’s ruling on the motion in limine was an abuse of discretion.
¶35 The seventh issue before us is whether the District Court erred in excluding the testimony of the paramedics regarding the resuscibility of Ron Christofferson at the scene.
¶36 In their depositions, both Neff and Songer testified that had they been correctly dispatched, they would have arrived at the Christofferson home and begun resuscibility procedures on Ron several minutes earlier, thus enhancing his chances of survival. Prior to trial, GF moved in limine to exclude this testimony. The City argued that Ron’s prospects of survival are properly a subject for expert testimony and that such testimony by Neff and Songer lacked foundation and was speculative. Janice, on the other hand, argued that the paramedics were entitled to testify to these matters as lay witnesses under Rule 701, M.R.Evid.
¶37 Rule 701, M.R.Evid., provides:
Opinion testimony by lay witnesses.
If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.
¶38 Rule 702, M.R.Evid., on the other hand, addresses expert testimony:
Testimony by experts.
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
¶39 In the case before us, we must decide whether the District Court abused its discretion when it determined that the paramedics would be precluded from offering essentially lay medical opinions.
¶40 There can be little question that an opinion to the effect that the ambulance’s delay greatly reduced Ron’s resuscibility chances is relevant to the primary issue of the case, and thereby satisfies Rule 701(b), M.R.Evid. The question, therefore, is whether such an opinion may be given by a lay witness, or must be presented only by an expert witness.
¶41 Janice argues that Onstad v. Payless Shoesource, 2000 MT 230, 301 Mont. 259, 9 P.3d 38, and Hislop v. Cady (1993), 261 Mont. 243, 862 P.2d 388, support her position, while GF argues that these cases are distinguishable.
¶42 In Onstad, a Payless Shoesource employee was physically and sexually assaulted by a stranger who had previously “flashed” other female employees at the same store and at another Payless store location. Onstad sued Payless, alleging it was negligent in not warning her based on these prior incidents, and in not providing her with a safe and secure workplace. Onstad presented the testimony of three police officers who investigated the assault. Payless challenged the officers’ opinions as to the efficacy of security precautions taken in the particular Payless store, and the predictability of an escalation in severity of a sexual offender’s actions. Payless claimed that such testimony was inadmissible lay testimony. Onstad, ¶ 36.
¶43 Payless argued that under Massman v. City of Helena (1989), 237 Mont. 234, 773 P.2d 1206, and Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 951 P.2d 1326, lay witnesses may not give opinions on topics requiring specialized skill or training. In Massman, an assistant fire chief was questioned about the effect of certain firefighting methods used to contain the fire at issue. The trial court denied introduction of the testimony, ruling that such testimony constituted expert testimony, not lay witness testimony. This Court affirmed the trial court, stating:
His opinion, about the most effective methods for combating such a fire, was based on that specialized, technical knowledge obtained from his fire training and work as an assistant fire chief. As such, the substance of his opinion constituted an expert opinion rather than a lay witness opinion.
¶44 In Rocky Mountain, the District Court precluded the testimony of a business owner who, after being forced to close his business, attempted to testify as a lay witness as to his business’ future lost profits. The District Court held that projecting lost profits required the skills of an expert, and that the company owner had produced no evidence of having the specialized skill and training of an economist. Rocky Mountain, 286 Mont. at 292, 951 P.2d at 1332. We affirmed the District Court.
¶45 The trial court in Onstad, after weighing the arguments presented by both parties, ultimately concluded that the officers’ lay testimony was admissible, noting that it “sprang from their work and experience as police officers.” Onstad, ¶ 41. One officer testified that it was “common knowledge” that employee safety increases when two employees are present rather than just one. Onstad, ¶ 41. The other officers testified that a police officer would not have advised a crime victim that the assaulter’s previous “flashing” incidents indicated he was merely a “harmless pervert,” as alleged by Payless. Onstad, ¶ 41. Lastly, the District Court found significance in the fact that Payless had raised the matters at issue in its opening statement, thus opening the door. Onstad, ¶ 42. Payless appealed and this Court affirmed the trial court. We observed that the District Court had responded to Payless’ objections in a “careful and considered fashion” and had correctly attributed significance to Payless’ raising of the issue in its opening statement. As a result, this Court concluded that the trial court did not abuse its discretion in admitting the lay testimony. Onstad, ¶ 42.
¶46 Jardee also relies on Hislop, in which a police officer testified at trial that the cause of an accident in which a pedestrian was killed was the fact that he was wearing dark clothes and standing in the highway in the middle of the night, and therefore not visible to oncoming traffic. On appeal, relying on Hart-Anderson v. Hauck (1989), 239 Mont. 444, 781 P.2d 1116, we held that based upon the officer’s “extensive experience in investigation,” he was “properly qualified through training and experience to testify as to his opinion regarding the cause of the accident.” Hislop, 261 Mont. at 249, 862 P.2d at 392. In Hart-Anderson, we similarly concluded that an officer’s testimony regarding the cause of an automobile accident was admissible based upon the officer’s extensive experience as an investigator of “several hundred automobile accidents.” Hart-Anderson, 239 Mont. at 448-49, 781 P.2d at 1118-19.
¶47 While we did not expressly state in either Hislop or Hart-Anderson that the officers’ testimony was properly admitted as expert testimony -under Rule 702, as opposed to lay testimony under Rule 701, the language of those cases certainly supports that inference. Then, in 1997, we confirmed that such opinion testimony as to causation from a police officer constitutes expert testimony, affirming the district court’s conclusion that, given the officer’s extensive experience and training, she qualified as an expert under Rule 702, M.R.Evid. State v. Gregoroff (1997), 287 Mont. 1, 951 P.2d 578. We clarified that a law enforcement officer may offer an expert opinion about the cause of an accident, as long as a sufficient foundation for the opinion is offered under Rule 702.
¶48 More recently, in State v. Nobach, 2002 MT 91, 309 Mont. 342, 46 P.3d 618, we held that whether a defendant’s ability to drive safely was diminished as a result of his consumption of drugs required expert opinion testimony. Nobach, ¶ 22. We rejected the police officer’s lay opinion to the effect that the defendant had been impaired by drug consumption, and concluded that the district court had abused its discretion in admitting his lay testimony on this issue. We stated:
Moreover, we are not persuaded that lay people are sufficiently knowledgeable about common symptoms of drug consumption, much less the effects of drug consumption on a person’s ability to drive a motor vehicle safely, to offer lay opinion testimony on those subjects, based on personal observations, under Rule 701. In addition, [the officer’s] opinions that Nobach’s ability to drive safely was diminished by the consumption of drugs and as to the effect of two depressants purportedly were based on his training and experience, subjects which generally relate to expert opinion testimony. See Rule 702, M.R.Evid.
Nobach, ¶ 17. Significantly, we further concluded that there was insufficient foundation for the acceptance of the officer’s opinion as to drug impairment, because he did not have the training necessary to testify as to the effects of particular drug consumption. Thus, the opinion would not qualify as an expert opinion under Rule 702, and it was therefore error for the district court to admit the evidence. Nobach, ¶ 26.
¶49 Here, plaintiffs argue that the paramedics should have been permitted to offer lay testimony as to the prospects of success of an earlier intubation of Ron, had the ambulance been properly dispatched. Such proposed testimony clearly extends beyond the mens’ observations at the scene or a description of their actions, and into the realm of expert medical opinion. While in Onstad, the officers were not offering scientific opinions, here the paramedics were being called upon to do just that. Our case law clearly requires that a foundation establishing the expertise of a witness to give such opinions must first be laid, pursuant to Rule 702. We conclude that the opinions Neff and Songer gave as to the likelihood of resuscibility had they arrived earlier could not be based on common knowledge, general experience or scene observation, but rather required extensive specialized training and experience. As a result, their testimony fell within the realm of expert testimony requiring foundation, and preclusion of it as lay opinion was not an abuse of discretion.
¶50 The last issues we address concern damages. Janice maintains the District Court erred in excluding the testimony of Christofferson’s economist on the value of loss of enjoyment of life. GF argues on cross-appeal that the District Court erred in deciding that hedonic damages are a proper element of damages in a survival action where the decedent survived, but did not consciously experience a loss of enjoyment of life.
¶51 These final issues relate to the damages that would have been awarded to Janice had the jury determined that GF’s negligence was a substantial factor in Ron’s death. Because the jury did not make such a determination, these issues are moot.
CONCLUSION
¶52 Having concluded that the District Court did not abuse its discretion in deciding the foregoing issues, we affirm the District Court.
CHIEF JUSTICE GRAY, JUSTICES REGNIER, LEAPHART, WARNER and RICE concur.
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] |
CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Charles C. Hodge appeals from the dissolution of his marriage to Teresa L. Hodge, raising two issues as to the distribution of marital property. We affirm the judgment entered by the Eighteenth Judicial District Court, Gallatin County, and remand.
¶2 Charles raises the following issues:
¶3 1. Did the District Court abuse its discretion by awarding Teresa half of any future proceeds from Charles’ pending lawsuit after Teresa abandoned her claim for loss of consortium?
¶4 2. Did the District Court abuse its discretion by awarding Teresa half of any future proceeds from Charles’ pending lawsuit while he remains responsible for repayment of debts from those proceeds?
Background
¶5 Charles did not file a transcript for our use in this appeal and, as a result, the following facts are taken from the District Court’s detailed findings of fact. The parties were married in 1985 and separated in 2000. At the time of the dissolution, Teresa was working two part-time jobs. Charles, a former heavy equipment operator, had not been employed since 1997. At the time of the dissolution, he was litigating the termination of his workers’ compensation permanent disability benefits, following his acquittal of criminal charges initiated by the State Compensation Insurance Fund (State Fund) that he fraudulently received total disability payments. Charles had managed the parties’ finances and checkbook during the marriage, while Teresa covered his bad checks and gambling debts with her income from employment.
¶6 Teresa and Charles agreed that their two teenage children may reside with whichever parent they choose and visit the other parent at the child’s discretion. Based on the evidence submitted at the dissolution hearing, the District Court set the value of the parties’ assets-which consisted of automobiles and household furnishings-at slightly over $10,000 and their liabilities at over $42,000. The liabilities included credit card debt, school loans, long distance telephone charges, and medical bills. The court divided the assets and debts approximately equally between Teresa and Charles. It ruled that Teresa is entitled to an equitable share of any settlement or award Charles may receive in his lawsuit against the State Fund. The court awarded Teresa 50 per cent of any such settlement or award, after Charles’ attorney fees and costs for that action are deducted.
Standard of Review
¶7 Because Charles did not supply a transcript for purposes of this appeal, he is precluded from arguing that the District Court’s findings of fact are inadequately supported by the record. He argues only that the District Court’s judgment amounted to an abuse of its discretionary authority to divide the marital estate in a manner equitable to each party. See In re Marriage of Harkin, 2000 MT 105, ¶ 24, 299 Mont. 298, ¶ 24, 999 P.2d 969, ¶ 24 (citations omitted).
Issue 1
¶8 Did the District Court abuse its discretion by awarding Teresa half of any future proceeds from Charles’ pending lawsuit after Teresa abandoned her claim for loss of consortium?
¶9 At one time, Teresa claimed damages for loss of consortium in Charles’ suit against the State Fund. She decided not to pursue that claim. Charles contends she dissipated the marital estate by abandoning the claim.
¶10 Charles has cited no authority to support his proposition that failure to bring a lawsuit creates dissipation of a marital estate. Rule 23(a)(4), M.R.App.P., requires an appellant to cite to the authorities, statutes and pages of the record relied upon in the arguments in his briefs to this Court and, absent such citation, we decline to consider the argument. See Hawkins v. Harney, 2003 MT 58, ¶¶ 34-35, 314 Mont. 384, ¶¶ 34-35, 66 P.3d 305, ¶¶ 34-35 (citations omitted).
¶11 Moreover, Charles does not challenge-and we cannot review-the District Court’s findings relating to this issue. We hold, therefore, that Teresa’s abandonment of her claim for loss of consortium does not render the District Court’s award to Teresa of half of any future proceeds from Charles’ pending lawsuit an abuse of discretion.
Issue 2
¶12 Did the District Court abuse its discretion by awarding Teresa half of any future proceeds from Charles’ pending lawsuit while he remains responsible for repayment of debts from those proceeds?
¶13 The District Court found that Charles should be responsible for the attorney fees associated with the defense of the criminal charges against him. Charles claims the most significant item of special damages caused by the State Fund’s prosecution of him is the cost of his defense in his criminal trials.
¶14 The District Court did not include attorney fees for defending the criminal charges in its finding listing marital debts. Charles cites to an exhibit he presented to the District Court indicating that he owes $37,390.38 to Bill Bartlett. However, Charles provided nothing to explain the reason for his indebtedness to Bartlett. Nor does he challenge the District Court’s findings as to the nature and amount of the marital debt, which do not include the debt to Bartlett.
¶15 It is the appellant’s burden to support his argument on appeal with appropriate citations to authorities, statutes, and pages of the record on which his argument relies. Rule 23(a)(4), M.R.App.P. Charles has failed to do so.
¶16 We hold Charles has not established an abuse of discretion in the District Court’s award to Teresa of half of the proceeds from his pending lawsuit through his unsupported claims that he owes attorney fees for his criminal case and that that debt is part of the marital estate.
¶17 Finally, Teresa asks to be awarded her costs and attorney fees for this appeal, which she contends was taken without substantial and reasonable grounds, was entirely unfounded and could only have been intended to cause delay. Rule 32, M.R.App.P., allows us to assess such damages for civil appeals “taken without substantial or reasonable grounds ... as under the circumstances are deemed proper.” As a general rule, we will not impose sanctions under Rule 32 unless the appeal is entirely unfounded and intended to cause delay, or unless counsel’s actions otherwise constitute an abuse of the judicial system. Snow v. Snow, 2002 MT 143, ¶ 31, 310 Mont. 260, ¶ 31, 49 P.3d 610, ¶ 31 (citation omitted).
¶18 Charles contends this case is distinguishable from Snow, where sanctions were imposed, in that the appellant in Snow did not cite authority to support his positions on the issues. We disagree. As indicated above, Charles has pursued his appeal without citing supporting authority for his positions and without filing a record on which we might base our review in considering his claims.
¶19 We grant Teresa her costs and also her reasonable attorney fees on appeal as a sanction pursuant to Rule 32, M.R.App.P. On remand, the District Court shall determine the amounts to which Teresa is entitled.
¶20 Affirmed and remanded for further proceedings consistent with this Opinion.
JUSTICES NELSON, LEAPHART, COTTER and RICE concur.
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JUSTICE HUNT
delivered the Opinion of the Court.
¶1 Kathleen Cochran (Cochran) appeals from the judgment entered by the Seventeenth Judicial District Court, Blaine County, on a jury verdict, convicting her of felony assault, and specifically from the District Court’s denial of her motion to suppress evidence, her motion for a directed verdict of acquittal, and her motion for a mistrial. We reverse.
¶2 Although Cochran raises several issues on appeal, we address only one, which is dispositive of this case: did the District Court abuse its discretion when it denied Cochran’s motion for a directed verdict.
BACKGROUND
¶3 Because the issue in this case involves the sufficiency of the evidence presented to support Cochran’s conviction, we review in detail the following facts presented at trial. Police Officer Robert Painter was on patrol duty at approximately 4:30 a.m. on January 10,1995, in Harlem, Montana, when he saw Cycil Jackson walking down the street. Painter approached him in his vehicle and asked him what he was doing at that hour. Jackson responded that he was on his way to a friend’s house. Painter noticed that Jackson was holding his right arm, but assumed it was simply because Jackson was cold. Painter continued his patrol duties.
¶4 Fifteen to twenty minutes later, Painter saw Jackson again, approximately six city blocks from his first encounter. This time Painter got out of his car and approached Jackson. Jackson told him that his friend was not home, so he was walking to his brother’s house. Painter offered him a ride, but Jackson declined. Painter noticed that Jackson was still holding his arm, but again assumed that Jackson was simply cold.
¶5 A little while later, Painter was dispatched to the home of Victoria Johnson. Painter was aware that Johnson resided with Lloyd Jackson, who was Cycil Jackson’s brother. As Painter was driving to the home, he received another message that Johnson had withdrawn her request for police assistance. Painter went off duty at approximately 5:30 a.m.
¶6 According to Johnson, she was awakened during the early morning hours to the sound of someone knocking on her door. When she realized it was J ackson, she invited him in. Both Lloyd Jackson and she could see he was bleeding from his arm. Johnson asked Jackson if he had been stabbed, but he denied it, and instead stated that he had fallen on glass. Although his brother also repeatedly asked him what had happened, Jackson never gave him an explanation. Johnson telephoned the police, but canceled the call after Jackson told her that he did not want the police involved.
¶7 Johnson and Lloyd Jackson then took Jackson to the Indian Health Services Hospital at Fort Belknap where he was treated by Dr. Ethel Moore. Dr. Moore testified that Jackson had sustained three wounds to his left arm: one across the shoulder joint, one in the mid-upper arm, and one just above the elbow. The two upper wounds were shallow and less than a half-inch in length, while the lower wound was deep and was an inch to an inch and a half in length. She characterized his wounds as stab wounds which could have been inflicted by a knife or a pair of sharp scissors. However, Jackson again denied having been stabbed and refused to tell her how he sustained the wounds.
¶8 In the meantime, Officer Charles Hunger, who is employed by the Fort Belknap BIA Police Department, was told that there was a stabbing victim in the emergency room and was dispatched to the hospital. However, Jackson similarly refused to tell Hunger what had happened, where he received his injuries, or who had been involved. Because Jackson was uncooperative, Hunger feared that there may be another victim somewhere. Hunger thus spoke with Jackson’s brother, Lloyd, who informed him that he did not know how Jackson sustained the wound. Lloyd did tell him that Jackson lived with Kathleen Cochran, and gave him their address in Harlem, Montana. Because Harlem was outside of Hunger’s jurisdiction, Painter, who by now was off Work, was dispatched by the Harlem Police Department to assist Hunger.
¶9 Painter, Hunger, and a criminal investigator named Martin Wilke proceeded to Jackson’s residence. As they approached the trailer house, they observed blood on the second stair leading to the house and blood in front of the windows in the snow. The three officers knocked on the door and on the windows on the north and east sides of the trailer, with no response. As they walked around the trailer, they observed no signs of a struggle or fight in the snow outside the residence. Painter saw blood droplets to the area north of the trailer with one set of footsteps by the blood spots. On the east side of the trailer, Painter and Hunger noticed that curtains in the east side window opened, then closed, but they did not see a person at that time.
¶10 While on the south side of the trailer, the officers heard voices and a banging noise coming from the inside of the trailer. It sounded to them as if a male and a female were fighting or wrestling. Painter testified that he heard a male state that he was going to get a gun, and a female trying to keep him from getting the gun. The officers feared that someone inside was about to be hurt. Painter thus radioed to the dispatch officer and informed him that there was an altercation proceeding in the trailer, and he did not have time to obtain a search warrant. He then forcibly entered, and Hunger and Wilke followed him inside.
¶11 Once inside, the officers discovered that the noise they had heard was actually coming from a television. They also found three individuals smeared with blood to varying degrees. The first individual was a man lying on the couch in the living room. According to Painter, he “was really hard to wake up.” When he finally regained consciousness, he identified himself as Stan Lindemulder.
¶ 12 The officers located a second man in the bathroom, who was later identified as William Azure, also known as Billy Rose. Rose was sitting fully clothed in the bathtub with his legs draped over the edge as though he had been pushed in. He was intoxicated and was kicking and mumbling incoherently. He appeared to be trying to get out of the tub. Painter observed blood on his right coat sleeve.
¶13 Finally, in a bedroom where the officers had seen the curtains moving from the outside of the trailer, they located Kathleen Cochran. She was on her stomach on the floor, wearing a sweat top and spandex bicycle shorts inside out. They observed blood on her top, shorts, hands, feet, face and hair. Cochran appeared to be asleep, and the officers were unable to awaken her. They also noticed a set of keys clutched tightly in her fist. For their protection they took the keys in the event she did wake up or if she were only pretending to be passed out.
¶14 Painter returned to the Harlem Police Department, which was one block away, to obtain a camera and some sheets of paper to question the individuals and read them their rights, while Hunger and Wilke stayed with the individuals at the house. After taking the pictures, Painter was eventually able to awaken Cochran by standing her on her feet. He then placed Lindemulder, Rose and Cochran under arrest when they refused to cooperate or answer questions about what had happened.
¶15 Before leaving the trailer, the officers also observed blood on the kitchen floor, the table, and in the sink. In a wash basin in the kitchen sink they saw bloody water and a meaty tissue. They also observed a pair of scissors in the garbage can sitting on the top of the trash, that appeared to be functional and very clean.
¶16 After placing the individuals under arrest, Painter obtained a search warrant, and returned to the trailer. Among various items of evidence seized, Painter seized several knives, a broken plate, a pint-size empty bottle of Black Velvet whiskey that had blood on it, the pair of scissors in the garbage can, and a tin can that had been converted into a first aid kit, which was sitting on the table. The lid to the can was off and it contained gauze pads and rolls. He also seized a pair of blood-stained women’s jeans which were located under a shelf in a bedroom. Later that day, Painter also retraced the route he had seen Jackson walking on earlier. He observed blood droplets in various places along the route.
¶17 Subsequently, Cochran was charged by information with committing the felony offense of assault in violation of § 45-5-202(2)(a), MCA (1993), by stabbing Jackson with a knife or scissors. At trial, Painter demonstrated how the scissors he had seized were still functional. He also showed the jury a picture he had taken of Cochran’s hand that depicted one large cut and several scratches. Painter demonstrated that when he held the scissors in his hand by grasping the blade of the closed scissors, the edge made contact with the lower part of his palm which approximated the area on Cochran’s smaller hand where she was cut.
¶ 18 However, Jackson offered another explanation at trial as to how both Cochran and he sustained their wounds. Jackson specifically denied that Cochran stabbed him, and he specifically denied that he had ever told Johnson he injured himself by falling on glass. Instead, he blamed his injuries on two unknown assailants.
¶19 Jackson elaborated on the events that allegedly unfolded. He testified that he has lived with Cochran since the summer of 1993, and he continued to live with her throughout the trial. At approximately 10:00 p.m, Cochran and he went to a bar and played pool with Lindemulder and the bartender. Rose, who was with them at the trailer, stayed behind. Jackson drank two beers and two shots of whiskey, and at approximately 11:00 p.m., Cochran, Lindemulder and he returned to the trailer. Rose was still there and the four sat around drinking and talking. According to him, no one was arguing or fighting during this time period.
¶20 Lindemulder eventually passed out on the couch, and Rose passed out in a back room while Cochran and Jackson continued drinking and talking. After they had passed out, Jackson claims he exited the trailer to investigate a banging noise. He discovered two people whom he had never seen before wrestling by the stairs to the front door. Jackson approached the two men to try to break up the fight. He was not concerned for his own safety, because he had been an amateur boxer and believed he could defend himself. However, when he tried to push the two men apart, he felt some pain in his arm. When he grabbed his arm, it felt wet, and he realized he had been stabbed. Jackson did not see a knife, and he does not know which person actually stabbed him. He then walked back to the trailer, and he said he saw the two individuals run away in a northern direction.
¶21 Once inside the trailer, Jackson claims that he grabbed four steak knives and intended to assault the two men who had injured him. Before he could, however, Cochran grabbed his arm with both hands to stop him, and in the process she got blood on herself. She also scratched her own hand on the knifes when he attempted to jerk away from her. Eventually, Cochran dissuaded him from going after the two men, and she attempted to bandage his arm. When the bleeding did not stop, he walked to a friend’s home for help and when the friend was not home, he walked to his brother’s home. It was during his walk that he encountered Officer Painter twice.
¶22 Although the police station was one block from Cochran’s home, Jackson said he did not want to walk there or tell the police what had happened because he feared they had a warrant out for his arrest in connection with other events. For that same reason, when he learned that Johnson had telephoned the police at his brother’s home, he requested that she cancel the call. However, although the police now know where Jackson is, Jackson has still refused to talk with either the police or with anyone from the County Attorney’s office about the incident.
¶23 Rose was also called as a witness at the trial. Rose had been a longtime friend of Cochran and her family since she was a child. Although he could not remember any particular dates, he did recall an incident when Jackson was injured at Cochran’s residence, but he “wasn’t paying too much attention” because he was “cooking vegetable soup.” According to Rose, there was a party going on and people were coming and going, but again he was not paying attention to who else might have been there. When questioned whether he saw Jackson bleed, he again responded that he “didn’t pay no attention.” Rose recalled giving a statement to Officer Painter in January about the incident, but at the time of trial he claimed he did not recall any alleged statement that he saw Cochran grab Jackson and turn him around. He also claimed he did not recall any statement that he heard Jackson say to Cochran “Ouch, don’t do that.” No alleged statement of Rose was ever offered or admitted into evidence. Painter did not testify about Rose’s alleged statement.
¶24 Lindemulder did not testify. He was not a resident of Harlem, and the prosecution was unsuccessful in its attempts to locate him. ¶25 At the close of the State’s case, Cochran moved for a directed verdict. The court denied the motion, and the jury ultimately convicted Cochran of felony assault. The court sentenced her to a term of two years in the Montana State Prison on the charge of felony assault, and an additional six years because the offense was committed with a dangerous weapon. Cochran appeals.
DISCUSSION
¶26 Did the District Court abuse its discretion when it denied Cochran’s motion for a directed verdict?
¶27 The State charged Cochran with felony assault in violation of § 45-5-202(2)(a), MCA, which provides:
(2) A person commits the offense of felony assault if the person purposely or knowingly causes:
(a) bodily injury to another with a weapon[.]
In this case, it was necessary for the State to prove that Cochran (1) purposely or knowingly, (2) caused bodily injury to Jackson, (3) with a weapon. At the close of the State’s case, Cochran moved for a judgment of acquittal on the grounds that the State failed to prove that it was Cochran who stabbed Jackson.
¶28 Pursuant to § 46-16-403, MCA, a district court may direct a verdict of acquittal and dismiss a criminal action when the evidence is insufficient to support a verdict of guilty. Section 46-16-403, MCA, provides:
When, at the close of the prosecution’s evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant. However, prior to dismissal, the court may allow the case to be reopened for good cause shown.
We review a trial court’s denial of a motion for a directed verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Granby (1997), 283 Mont. 193, 199, 939 P.2d 1006, 1009 (citation omitted). A district court’s decision lies within its sound discretion and will not be overturned absent an abuse of that discretion. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 1307 (citation omitted).
¶29 In this case, we conclude that there is insufficient evidence to establish that it was, in fact, Cochran who assaulted Jackson. First, no direct evidence links Cochran to the crime. No witness testified that Cochran stabbed Jackson. Jackson himself never claimed to his family, the police, or his physician that he had been stabbed by Cochran, and at trial he expressly denied that it was she who assaulted him. The State argues that Jackson’s account of how he sustained his wounds is not believable because both Officers Painter and Hunger testified that there was no sign of a scuffle with two other persons in the snow outside the trailer. Additionally, at no time did Jackson report the crime or take any steps to locate and prosecute these two unidentified assailants. However, proving that someone other than these two alleged unknown men stabbed Jackson does not constitute proof that Cochran stabbed him.
¶30 Second, the circumstantial evidence was equally insufficient. Officers Painter and Hunger found blood inside the trailer, particularly in the kitchen area, and to varying degrees on each of the three persons located in the home. They also observed signs of a scuffle inside the trailer, such as the broken plate. Although the evidence thus indicates that Jackson was probably stabbed inside the trailer, no evidence established that it was Cochran, as opposed to Rose or Lindemulder, who assaulted Jackson. The State argues that more blood was found on Cochran than on Rose or Lindemulder and that blood was found on a pair of jeans she had allegedly hidden. But the quantity of blood does not necessarily establish guilt. It is just as possible that blood got on Cochran when she attempted to give Jackson first aid, as he testified. The State presented no evidence as to when the blood got on the pants.
¶31 The State argues that other evidence suggests that Cochran is guilty. It points to the “suspicious disposal” of the clean, functional scissors. However, the State presented no evidence that Jackson sustained his wounds from the scissors, as opposed to a knife, and no evidence suggests that it was Cochran rather than Rose or Lindemulder who threw the scissors away. Additionally, the scissors were located on the top of the garbage in plain view; they were not “suspiciously” buried or bidden.
¶32 The State also points to cuts on Cochran’s hands. Again, however, there is no evidence establishing when she got the cuts, and none of the kitchen implements were directly tied either to her cuts or to the stab wounds. Even if the cuts were obtained on the evening of the incident, it is possible that she cut herself while trying to grab knives from Jackson’s hands, as Jackson testified.
¶33 The State next argues that Cochran’s behavior when the police arrived indicates a consciousness of guilt. The State insists that Cochran was only feigning sleep when the police arrived, and that she was the only person who could have opened and shut the curtains to the trailer moments before the police entered. However, the police did not actually see a person at the window when the curtains briefly opened and shut. Even assuming a person did open and shut the curtains, it could have been Rose, for example, who, although was heavily intoxicated when the police entered, was nevertheless awake. No evidence other than pure speculation indicates that Cochran was pre tending to sleep. Officer Painter testified that he was unable to awaken Cochran until after he had retrieved his camera, taken pictures, and then forcibly stood her on her feet.
¶34 We conclude that the evidence presented was not sufficient to establish that it was Cochran who assaulted Jackson. Accordingly, we hold that the District Court abused its discretion when-it failed to direct a verdict in favor of Cochran and dismiss the case. Cochran’s conviction for felony assault is reversed and her sentence is vacated.
CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, TRIEWEILER and LEAPHART concur.
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] |
CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court.
¶1 Jim & Tracy’s Alignment, Inc., brought this action in the Thirteenth Judicial District Court, Yellowstone County, to collect a bill for repairs on Keith Smith’s pickup truck. The action was dismissed on Jim & Tracy’s motion after the repair bill was paid. Smith appeals. We affirm.
¶2 Smith sets forth fifteen issues on appeal. As discussed more fully below, the only substantive issue properly before this Court is whether the District Court abused its discretion in granting the motion to dismiss.
Background
¶3 Jim & Tracy’s initial complaint in this action was filed in September 1997, to collect a bill for repair of Smith’s pickup truck. The complaint mistakenly identified Smith’s truck as a 1985 GMC; the model year was actually 1986. In response to the complaint, Smith, appearing pro se, filed a demand for jury trial, an unsupported motion to dismiss, a motion for leave to proceed in forma pauperis, and a mo tion for substitution of judge. The District Court denied Smith’s in forma pauperis motion. This Court reversed that denial on Smith’s application for supervisory control and remanded for further proceedings including substitution of judge.
¶4 On remand, the presiding judge was substituted. Smith filed a brief and affidavit in support of his earlier motion to dismiss, stating that he had at no time owned the vehicle described in the complaint. Jim & Tracy’s then moved to be allowed to amend its complaint to give the correct model year for Smith’s pickup. Smith opposed that motion and moved for Rule 11, M.R.Civ.R, sanctions against Jim & Tracy’s on grounds that they had falsely certified that reasonable inquiry into the facts was made before they filed their complaint.
¶5 The court granted Jim & Tracy’s leave to file an amended complaint, and an amended complaint was filed indicating the correct model year for Smith’s truck. Smith then moved for more definite statement under Rule 12(e), M.R.Civ.R, and for Rule 11, M.R.Civ.R, sanctions on grounds that one of Jim & Tracy’s briefs contained an improper citation to a nonpublished case. Jim & Tracy’s opposed Smith’s motion for more definite statement, arguing that the information requested by Smith could be obtained through discovery after he filed an answer to the complaint, which he had not yet done. It opposed Smith’s second request for sanctions on grounds that the unpublished case was a related case and was cited only to show that the presiding judge had knowledge of Smith’s financial status for purposes of deciding his in forma pauperis motion. On December 11, 1997, Smith filed a reply brief and a notice for hearing on his pending motions to be held on January 7,1998.
¶6 On the same day, Jim & Tracy’s moved to dismiss its amended complaint pursuant to Rule 41, M.R.Civ.R, because Smith’s bill had been paid in full. On December 15,1997, the District Court granted the motion to dismiss, vacated the hearing set for January 7, 1998, and ordered that “THE ABOVE-ENTITLED MATTER IS CLOSED AND NO FURTHER DOCUMENTS CAN BE FILED OR ALLOWED TO BE FILED IN THIS ACTION.”
¶7 Smith filed a second application for writ of supervisory control with this Court. We granted supervisory control to the extent of stating that Smith could not be denied his right to file a notice of appeal, but denied the application to all further extent. Smith appeals.
Discussion
¶8 This Court does not generally rule on moot questions. A moot question is one which existed once but no longer presents an actual controversy. Ruckdaschel v. State Farm (1997), 285 Mont. 395, 396, 948 P.2d 700, 701. Smith states as one of his issues on appeal that the District Court erred in initially denying him leave to defend the case without prepayment of fees. That issue was resolved in his favor as a result of his first application for writ of supervisory control and is now moot. There is no reason to consider it further.
¶9 Smith states as another issue that lawyers are held to higher standards in filing court papers than are nonlawyers. He does not connect this statement to the record, and this was not a matter relied upon by the District Court in granting dismissal. We conclude that this is not an issue and decline to consider it further.
¶ 10 Smith sets forth three issues relating to Jim & Tracy’s citation, in a brief, to this Court’s nonpublished opinion in Smith’s appeal of a prior District Court case to which he was a party. Smith argues that Jim & Tracy’s should have been sanctioned by the District Court and by this Court for that citation to an unpublished opinion.
¶11 Review of the record reveals that Jim & Tracy’s reference to this Court’s opinion in the prior case was solely for purposes of explaining that the District Court had prior information on Smith’s financial status, in relation to his application to be allowed to appear in forma pauperis. The case was not cited as legal authority, and its citation was in no way improper. The District Court did not err in failing to award sanctions for that citation.
¶12 The District Court’s order dismissing this case under Rule 41(a), M.R.Civ.P, is the proper focus of this appeal. Our standard of review of that order granting voluntary dismissal is whether the trial court abused its discretion. Harwood v. Glacier Elec. Coop., Inc. (1997), 285 Mont. 481, 486, 949 P.2d 651, 654.
¶13 Rule 41(a), M.R.Civ.P., provides in relevant part:
(2) By order of court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
Because Smith had not filed an answer to Jim & Tracy’s complaint, no motion for summary judgment was, or could have been, made. The remaining question is whether Smith had pleaded a counterclaim which precluded dismissal of the complaint.
¶14 Smith sets forth several issues in his brief to this Court which may be construed to imply that he had counterclaims pending when the District Court dismissed this action. He maintains the court erred in dismissing the action before the expiration of the time statutorily allowed him to answer the motion for dismissal. Smith also alleges that the District Court erred in not dismissing the complaint upon his motion and in not sanctioning Jim & Tracy’s for filing a frivolous complaint; that Jim & Tracy’s maliciously prosecuted him by filing malicious original and amended complaints and by delaying in moving to dismiss its complaint; and that the initial denial of his motion to be allowed to proceed in forma pauperis established prejudice against him in the courts of Yellowstone County.
¶15 Although Smith lists all of the above as issues on appeal, a thorough review of the District Court file does not reveal any document that can be considered as a counterclaim for purposes of preventing dismissal under Rule 41(a), M.R.Civ.P. Only two documents in the District Court file even remotely hint at counterclaims. The first is Smith’s brief in opposition to Jim & Tracy’s motion to be allowed to amend the complaint, which states, “Registration papers and personal belongings of Defendant which, along with a 1986 GMC pickup were detained against interests by Plaintiff in violation of repealed mechanic lien statutes, contained the correct information.” Smith’s request for relief in that document was that the District Court deny the motion to amend and for sanctions. The second document which hinted at a counterclaim was Smith’s reply brief to Jim & Tracy’s response to Smith’s motion for more definite statement. In that document, Smith stated:
[I]t still is in the best interest of all concerned to obtain at this time all other information requested by Defendant, since he needs it to properly compose affirmative defenses, counterclaims, third party complaints and joinder of additional parties.
Defendant believes in good faith ... that violations of criminal and civil statutes likely took place, pertaining to a pickup he at one time owned. These include, but are not restricted to detainer, vehi cle theft, theft of property from a motor vehicle, fraud, driving of a vehicle without owner’s permission, et al.
Smith asked the court to order Jim & Tracy’s to issue a more definite statement, “and for all other relief as may be granted in the interests of curing INFECTIOUS INJUSTICE TM.”
¶ 16 A pleading which sets forth a claim for relief, such as a counterclaim, must contain a short and plain statement of the claim and a demand for judgment for the relief sought. Rule 8(a), M.R.Civ.R The above documents seem to indicate an intent on the part of Smith to file counterclaims in the future, but neither of them establishes a pleaded counterclaim for purposes of notice to Jim & Tracy’s that a counterclaim had been filed. Even a liberal approach to pleading would not recognize Smith’s statements as a counterclaim.
¶17 Having thus concluded that no counterclaims were filed in this case, we hold that the District Court did not abuse its discretion in dismissing Jim & Tracy’s complaint against Smith under Rule 41(a), M.R.Civ.R, on grounds that the amount due had been paid. We affirm the District Court’s order of dismissal.
JUSTICES NELSON, TRIEWEILER, HUNT and LEAPHART concur.
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JUSTICE NELSON
delivered the Opinion of the Court.
¶1 Defendant Christopher Ray (Ray) was convicted in the Twenty-First Judicial District Court, Ravalli County, of one count of burglary and two counts of aggravated burglary. Ray appeals his convictions, alleging his right to a speedy trial was violated and that he was entitled to a directed verdict on the aggravated burglary counts. We affirm in part and reverse in part and remand for proceedings consistent with this Opinion.
¶2 We address the following issues on appeal:
¶3 1. Was Ray denied his constitutional right to a speedy trial in the District Court?
¶4 2. Under § 45-6-204(2)(a), MCA, does the theft of a loaded gun qualify as “armed with a weapon” for purposes of elevating a burglary charge to aggravated burglary?
I. FACTUAL AND PROCEDURAL BACKGROUND
¶5 On February 4, 1999, two residents of Ravalli County reported that their respective houses had been burglarized. Items reported missing included one loaded firearm, several unloaded firearms, electronic equipment, coins, a camera, and various other items. The following week, two more burglaries were reported in the area. These two burglaries were of summer vacation homes, and the owners and police officers could not determine the exact date of the burglary. Items stolen from the vacation homes included, more firearms, a Ford Bronco, electronic equipment, tools, household items, and alcohol.
¶6 On February 9, 1999, the stolen Ford Bronco was found in Madison, Ohio. The Bronco contained possessions and firearms belonging to the owner of one of the houses that was reported burglarized on February 4, 1999. The police also found Ray’s fingerprints inside the Bronco. An Oldsmobile Cutlass had been stolen in the area where the abandoned Bronco was found.
¶7 Four days later, on February 13, 1999, the stolen Oldsmobile Cutlass was found in Yonkers, New York. It contained firearms belonging to the owner of the other house that was burglarized on February 4, 1999. Another car, this time a Honda, had been stolen in the vicinity of where the Oldsmobile was found.
¶8 Finally, on February 13, 1999, Ray was discovered asleep in the stolen Honda in Polk County, Arkansas. After Ray was arrested, he told the officer about stealing guns and cars out of fear of the Mafia trying to kill him.
¶9 Ray was subsequently extradited to Montana and charged with three counts of burglary. The charges were later amended to add another count of burglary and then to change three of the counts to aggravated burglary. After lengthy delays but before trial, Ray moved for dismissal of the charges on the grounds that his speedy trial rights were violated. The District Court denied his motion, concluding that Ray was not prejudiced by the various delays. The charges were then tried before a jury. At conclusion of the State’s evidence, Ray moved for a directed verdict on the aggravated burglary counts, asserting that the stolen firearms themselves did not qualify him as “armed” under aggravated burglary. The District Court denied the motion concluding that carrying or being in possession of any weapon was sufficient to meet the aggravated burglary statute.
¶10 After trial, the jury convicted Ray of one count of burglary and two counts of aggravated burglary and acquitted Ray on the other count of aggravated burglary. Ray appeals, alleging his speedy trial rights were violated and that the District Court should have granted his motion for a directed verdict regarding the aggravated burglary counts. Further facts and the procedural background regarding the speedy trial issue are discussed below.
II. DISCUSSION
1111 1. Was Ray denied his constitutional right to a speedy trial in the District Court?
A. Standard of Review
¶12 Whether a defendant has been denied a speedy trial constitutes a question of constitutional law. State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378; see also State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66. We review a district court’s conclusions of law to determine whether its interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶13 We review claims that a speedy trial was denied in violation of the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution, based on the general guidelines established by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. Under Barker, we must consider: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right to a speedy trial by the defendant; and (4) the prejudice to the defense. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.
¶14 Using the general guidelines established in Barker, this Court set forth Montana’s procedure for addressing speedy trial claims in City of Billings v. Bruce, 1998 MT 186, 290 Mont. 148, 965 P.2d 866. As for the first Barker factor, length of the delay, in Bruce, we established 200 days as the necessary length of time to trigger further speedy trial analysis. Bruce, ¶ 55.
¶15 The second Barker factor, the reason for the delay, requires us to attribute delay to either the State or the defendant on a case-by-case basis. Bruce, ¶ 56.
¶16 Concerning the third Barker factor, whether the defendant’s right to speedy trial has been timely asserted, we determined that if the right to speedy trial is invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or by moving to dismiss for failure to provide a speedy trial, the third factor has been satisfied. Bruce, ¶ 57.
¶17 Finally, we determined that the fourth Barker factor, prejudice the delay caused to the defense, can be established based on any of the following factors: (1) pretrial incarceration; (2) anxiety and concern to the defendant; and (3) impairment of the defense. Bruce, ¶ 58. Regarding these factors, the Supreme Court stated:
Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
Bruce, ¶ 19 (quoting Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118).
B. Discussion
¶18 In the instant case, Ray was arrested in Arkansas on February 13, 1999. Over a month later, on March 23,1999, the State filed a motion for leave to file an information. Ray appeared in District Court for the first time on March 24, 1999, to enter a not guilty plea.
¶19 On April 7,1999, Ray appeared at an omnibus hearing and moved for a change of counsel. On April 21,1999, Ray requested a competency evaluation. Based on results of the evaluation, the court determined Ray was fit to proceed at a status hearing on his case on July 14,1999. As a result, an original trial date was set for November 8, 1999. On October 29, 1999, however, Ray and the prosecution supposedly reached a plea agreement. The supposed plea agreement was never signed and neither the prosecution nor Ray filed a motion to vacate the November 8,1999 trial date. Consequently, the November 8,1999 trial date passed.
¶20 Ray requested a second mental competency evaluation on November 24,1999. On March 22,2000, after a competency report was completed, the court found Ray competent to proceed. Rather than setting a new trial date, the court ordered another settlement conference. On April 28, 2000, a trial date of September 25, 2000, was finally set. Ray was convicted by a jury of one count of burglary and two counts of aggravated burglary.
¶21 As stated above, the first inquiry we must make under Barker and Bruce pertains to the length of the delay before Ray’s trial. Whether the length of delay before Ray’s trial is sufficient to trigger a speedy trial analysis is a threshold question. Bruce, ¶ 55. Assignment of blame to either the State or Ray is irrelevant for purposes of this inquiry. Bruce, ¶ 55. We established 200 days as the minimum length of time required to trigger further speedy trial analysis. Bruce, ¶ 55.
¶22 The State contends that for purposes of this speedy trial analysis, the clock should start running from March 24,1999, the date the court granted the State’s motion for leave to file an information. The State cites Bruce in support of this contention. In Bruce we wrote, ‘We will first consider the length of delay from the time charges are filed (or as in this case, the date on which the notice of appeal from the city court is filed) until the defendant’s trial date for the purpose of determining whether there is a basis for conducting a speedy trial analysis.” Bruce, ¶ 55. The facts of Bruce, however, are distinguishable from the facts here. Bruce was convicted in city court and appealed the verdict to the district court. Bruce alleged his speedy trial right was violated regarding his appeal, not his trial in city court; thus, we used the date on which Bruce filed his notice of appeal from the city court as the starting point for calculating delay.
¶23 The rule regarding when we begin calculating delay in a speedy trial analysis is stated more clearly in State v. Wombolt (1988), 231 Mont. 400, 402, 753 P.2d 330, 331: “[T]he right to speedy trial attaches at arrest or the filing of the complaint in justice court.” See also State v. Larson (1981), 191 Mont. 257, 623 P.2d 954. In the instant case, 590 days elapsed from the date Ray was arrested, February 13, 1999, until the start of his trial, September 25,2000, clearly exceeding the 200-day requirement.
¶24 Under the second prong of Barker and Bruce, we must next consider the reason for the delay, and attribute the delay to either the State or Ray. “[T]he court determines which party is responsible for specific periods of time, then respectively allocates the total time delay between the parties.” State v. Hardaway, 1998 MT 224, ¶ 15, 290 Mont. 516, ¶ 15, 966 P.2d 125, ¶ 15. As we already stated, 200 days is the necessary length of time to trigger further speedy trial analysis. When it has been demonstrated that 275 days of delay is attributable to the State, the burden shifts to the State to demonstrate that the defendant has not been prejudiced by the delay. Bruce, ¶ 56.
¶25 The State and Ray generally agree on how many days of delay were attributable to Ray as opposed to the State. As we explained above, we are required to start counting days of delay on the day Ray was arrested, February 13, 1999. The 53-day delay from Ray’s arrest on February 13, 1999, to the omnibus hearing on April 7, 1999, is attributable to the State. At the April 7, 1999 omnibus hearing, Ray requested a change of counsel and at the April 21, 1999 hearing he requested a competency evaluation, both of which the District Court granted. As stated above, Ray was subsequently found competent at a status hearing on July 14,1999. The 98-day delay between the April 7, 1999 omnibus hearing and the July 14, 1999 status hearing is chargeable to Ray. The 133 days between the July 14, 1999 status hearing and the November 24, 1999 hearing at which Ray requested another competency exam is attributable to the State.
¶26 Then, 119 days passed from the time Ray requested the second competency examination until Ray was determined competent on March 22,2000, all of which are attributable to Ray. Even though Ray was determined competent on March 22, 2000, the District Court did not set a trial date until April 28, 2000. On April 28, 2000, the District Court finally set the trial date for September 25, 2000, making 187 days attributable to the State. Ray’s trial began as scheduled on September 25, 2000.
¶27 In all, Ray is responsible for 217 days of delay, while the State is responsible for 373 days, well beyond the 275-day mark at which the burden to show lack of prejudice to the defendant shifts to the State. On appeal the State concedes that 334 days of the delay should be attributed to the State. Importantly, the District Court attributed less than 275 days of the delay to the State.
¶28 Under the third prong of Barker and Bruce, we must next consider whether Ray’s right to a speedy trial was timely asserted. If the right to speedy trial is invoked at any time prior to the commencement of trial, either by demanding a speedy trial, or by moving to dismiss for failure to provide a speedy trial, the third prong of the Barker test is satisfied. Bruce, ¶ 57.
¶29 Ray asserted his right to a speedy trial on numerous occasions. He wrote letters to the District Court complaining about the delays in his case. Ray’s letters were received by the court on January 24, 2000, February 2, 2000, February 25, 2000, and March 8, 2000. In his January 24, 2000 letter, Ray wrote to the District Court:
I have been waiting in Ravalli County jail since March 5th for trial. I am told it has been scheduled and post poned [sic], I would like to go to trial at the earliest date possible. I feel my speedy trial rights may have been overlooked.
On September 11,2000, Ray’s counsel filed a motion invoking his right to a speedy trial. Moreover, the State concedes that Ray timely invoked his right to a speedy trial. Thus, we conclude that Ray has satisfied the third prong of the Barker and Bruce test.
¶30 Finally, we must analyze the fourth prong of the Barker and Bruce test, whether the defendant was prejudiced by the delay. In doing so, we should take into consideration, but need not include, three bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of the practical applications that have been articulated by the United States Supreme Court, and (c) impairment to the defense. Bruce, ¶ 58.
¶31 As we have already stated, if275 days of delay are attributable to the State rather than the defendant, then the burden shifts to the State to demonstrate that the defendant has not been prejudiced by the delay. We have already concluded, and both parties agree, that more than 275 days of delay before Ray’s trial are attributable to the State; therefore, the State has the burden of showing that Ray was not prejudiced by the delay. In the District Court, the State argued that Ray had the burden of showing prejudice by the delay since less than 275 days were attributed to the State. The District Court agreed and placed the burden on Ray. As previously mentioned, the State concedes on appeal that this was error.
¶32 In its order denying Ray’s motion to dismiss for lack of speedy trial, the District Court states that it would reach the same conclusion even if the burden of showing lack of prejudice was with the State. Unfortunately, we are unable to conduct a meaningful review of the evidence when the burden of proof was erroneously applied by the trial court. Therefore, we remand this matter to the District Court so that it can revisit its speedy trial analysis after properly acknowledging that the State has the burden of establishing lack of prejudice to Ray occasioned by the delay.
¶33 2. Under § 45-6-204(2) (a), MCA, does the theft of a loaded gun qualify as “armed with a weapon” for purposes of elevating a burglary charge to aggravated burglary?
A. Standard of Review
¶34 This Court reviews denial of a motion for a directed verdict of acquittal to determine whether the district court abused its discretion. State v. Giant, 2001 MT 245, ¶ 9, 307 Mont. 74, ¶ 9, 37 P.3d 49, ¶ 9. A directed verdict is appropriate when there is no evidence upon which a jury could base a guilty verdict. No abuse of discretion occurs if, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Giant, ¶ 9. However, if the denial of directed verdict is based on a conclusion of law, like our review of any conclusion of law by a district court, we review the conclusion of law de novo to determine whether it is correct. Giant, ¶ 9.
¶35 In this case, the District Court’s denial of Ray’s motion for directed verdict rested on the District Court’s interpretation of the definition of “armed with ... a weapon” under § 45-6-204(2)(a), MCA. As this involves interpretation of a statute, our review in this case is de novo. State v. Peplow, 2001 MT 253, ¶ 17, 307 Mont. 172,¶ 17, 36 P.3d 922, ¶ 17 (interpretation of a statute is a matter of law). Further, we note that this is an issue of first impression in Montana. Accordingly, we look to other states for guidance.
B. Discussion
¶36 We begin by setting out the provision in issue here. Section 45-6-204(2)(a), MCA, sets out the elements of aggravated burglary and states in relevant part:
A person commits the offense of aggravated burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein and: (a) in effecting entry or in the course of committing the offense or in immediate flight thereafter, he or another participant in the offense is armed with explosives or a weapon. [Emphasis added.]
As is apparent from the statute, one of the elements the State must prove in a case of aggravated burglary is that the defendant was “armed with ... a weapon.”
¶37 Ray asserts the District Court erred when it denied his motion for a directed verdict because he argues that the mere theft of a weapon during a burglary does not qualify as “armed with... a weapon.” Citing State v. Befford (Ariz. 1986), 715 P.2d 761, in his support, Ray asserts that he was not “armed” since he simply possessed the firearms as stolen property and did not intend to use them. As a result, Ray claims the State’s evidence failed to prove the element that he was armed with a weapon because the State did not prove he had intent to use a weapon during the burglary.
¶38 In contrast, the State argues the element “armed with ... a weapon” is satisfied by possession of a weapon, rather than a showing of intent. Further, the State asserts Ray was armed because he stole firearms in the course of the burglaries. In support of its argument, the State cites State v. Merritt (N.J. Super. Ct. App. Div. 1991), 589 A.2d 648. The District Court agreed with the State and held that simple possession of a weapon by virtue of the burglary qualified as armed with a weapon.
¶39 As mentioned above, this case presents an issue of first impression to this Court. After reviewing the statutory language and case law from other jurisdictions, we agree with the State subject to a proviso which we discuss in detail below.
¶40 First, in interpreting § 45-6-204(2)(a), MCA, we must give effect to the plain language “armed with... a weapon.” The term “weapon” is statutorily defined by § 45-2-101(78), MCA, as follows:
Unless otherwise specified in the statute, all words will be taken in the objective standard rather than in the subjective, and unless a different meaning plainly is required, the following definitions apply in this title ... (78) “Weapon” means an instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.
As our previous case law interpreting this section holds and as the plain language of this section indicates, a weapon can be virtually any instrument. State v. Mummey (1994), 264 Mont. 272, 277-78, 871 P.2d 868, 871-72 (holding tennis shoe may be a weapon). Yet, if this Court were to hold that “armed with ... a weapon” means any instrument in possession of a burglar, every burglary charge would automatically be elevated to aggravated burglary. Besides eliminating the crime of burglary, such an interpretation would make the term “armed” synonymous with the term “weapon.” Neither result is tenable under the rules of statutory interpretation, as we normally construe provisions to give effect to all the language. Hawley v. Board of Oil & Gas Conservation, 2000 MT 2, ¶ 12, 297 Mont. 467, ¶ 12, 993 P.2d 677, ¶ 12. Therefore, we must address the definition of the term “armed,” as it is not specifically defined by statute.
¶41 At this point, it is instructive to look to case law from other jurisdictions. Our review of the cases regarding the definition of the term “armed” indicates there is near uniform agreement among the states that the term “armed” means readily accessible and available for use. Merritt, 589 A.2d at 650; Wesolic v. State (Alaska Ct. App. 1992), 837 P.2d 130, 133-34; State v. McCaskill (S.C. Ct. App. 1996), 468 S.E.2d 81, 82. However, again, combining this definition with Montana’s definition of weapon gives the phrase “armed with ... a weapon” an overly broad meaning because it means the defendant has any instrument readily accessible and available for use as a weapon. Therefore, we again look to other states to see whether the element of armed with a weapon requires mere possession or, instead, requires an intent to use burglary spoils as weapons in furtherance of the crime.
¶42 Our review of the case law indicates that whether a state allows possession of stolen property to qualify a defendant as armed with a weapon depends on two factors: the nature of the weapon stolen and the statutory definitions of both burglary and weapon. First, regarding the nature of the weapon stolen, the case law is generally divided into cases that address firearms versus cases that address other types of weapons. Further, cases involving firearms make up the majority of jurisprudence on this subject. In this case, the underlying weapons used to elevate the charges against Ray to aggravated burglary included various firearms taken from the residences. Therefore, for our purposes here, we look to other case law involving firearms. In pointing out this distinction in the case law, we note that our holding here is accordingly limited to theft of firearms. We will address other types of weapons that may be stolen during a burglary on a case by case basis.
¶43 Regarding the second factor, statutory definitions, the majority of jurisdictions interpret their respective statutes to follow the common sense rule that a person who steals a firearm may be found to have been armed with a weapon, without showing that he actually intended to use the firearm, so long as the weapon was readily accessible and available for use. Merritt, 589 A.2d at 650. As the Merritt court observed:
[I]t is evident that a person may become armed with a weapon obtained in a burglary or other offense. Once obtained during the course of the offense, a weapon may be as readily accessible to the perpetrator as if he had brought it to the scene initially, and the State is only required to show such access to establish that the defendant was armed.
Merritt, 589 A.2d at 650. However, whether or not a firearm is readily accessible and available for use varies significantly depending on a given state’s statutory scheme and definitions.
¶44 For example, in State v. Crews (Mo. Ct. App. 1998), 968 S.W.2d 763, 765, the Missouri court allowed theft of a gun, whether loaded or unloaded, to qualify a burglar as armed with a deadly weapon because that state’s legislature defined a “deadly weapon” as any firearm, loaded or unloaded. Consequently, by statutorily defining weapons to specifically address firearms, an unloaded gun is considered readily available and accessible for use in Missouri when taken by a burglar. See also State v. Hall (Wash. App. 1987), 732 P.2d 524, 527; State v. Faille (Wash. App. 1988), 766 P.2d 478, 479; State v. Luna (N.M. Ct. App. 1982), 653 P.2d 1222, 1222; People v. Loomis (Colo. Ct. App. 1992), 857 P.2d 478, 480.
¶45 In contrast, in People v. Griffin (N.Y. County Ct. 1999), 695 N.Y.S.2d 868, 870, the New York court noted that the definition of deadly weapon in that state requires a firearm to be loaded. Therefore, theft of an unloaded firearm in the course of a burglary does not elevate the crime in that state because an unloaded firearm is not considered readily accessible and available for use. Further, the court noted that the prosecution has to prove the stolen firearm was loaded as an element of first degree burglary. Griffin, 695 N.Y.S.2d at 870.
¶46 In addition to differences in the definition of weapon, differences in the definition of burglary also affect judicial interpretation. For example, Alaska allows mere possession of a loaded firearm stolen during a burglary to increase a criminal’s potential liability because the statute in that state specifically requires the prosecution to prove intent only if the stolen item is not a firearm. Wesolic, 837 P.2d at 133-34. However, the opinion in Wesolic notes that the firearm in that case was loaded and the court left open the question of whether an unloaded firearm would qualify one as “armed” under the statute. Wesolic, 837 P.2d at 134, n.1.
¶47 In Befford, 715 P.2d at 763, cited by Ray, the Arizona court interpreted a burglary and dangerous instrument statute similar to Montana’s under facts somewhat similar to the instant case. In Befford, the defendant stole an unloaded firearm still in its case and asserted that he was unarmed because he took the firearm as loot and did not have intent to use the weapon. Ruling in favor of the defendant, the court noted that Arizona’s broad definition of dangerous instrument could include anything from a lamp to a set of tools and stated, “the result would be to classify most every burglary as first degree.” Befford, 715 P.2d at 763. Consequently, the court held, “In order to be ‘armed’ within our burglary statute, a defendant must possess the item considered a... dangerous instrument in such a manner as to indicate his willingness or present ability to use it as a ‘weapon.’ ” Befford, 715 P.2d at 763. Apparently, because the gun was not loaded and no intent was proven, the court did not find it necessary to distinguish between its use of “willingness,” indicating an intent to use a weapon, and “present ability to use,” indicating mere possession of weapon.
¶48 In contrast to Befford, the Arizona court has also held in State v. Romero (Ariz. Ct. App. 1982), 659 P.2d 655, that theft of a loaded gun stolen during a burglary qualifies as armed with a weapon under the same statutory scheme. However, in that case, the defendant attempted to use the gun, so he demonstrated an intent as well as mere possession. Further, after Befford, the Arizona legislature amended the burglary statute to specifically allow mere possession of an unloaded firearm to qualify for the elevated burglary charge by changing the statutory language from “armed” to “knowingly possess.” State v. Tabor (Ariz. Ct. App. 1995), 907 P.2d 505, 506.
¶49 From these cases it is apparent that although statutory definitions vary, there is general agreement that when a burglar steals a loaded firearm as proceeds, mere possession of the firearm qualifies the defendant as armed with a weapon because the weapon is readily accessible and available for use. Simply put, a burglar in possession of a loaded gun stolen as part of the “loot” is just as dangerous as a burglar in possession of a gun he brought to the burglary. In either case the armed burglár may well injure or kill upon being surprised by the premises owner or the police, at or while in the flight from the scene of the crime.
¶50 In contrast, the cases also indicate that there is disagreement regarding whether theft of an unloaded firearm makes the defendant armed. However, our review of the case law indicates that in states that allow an unloaded firearm to qualify a defendant as armed with a weapon, the statutory definitions are generally designed to specifically include an unloaded firearm as a deadly weapon.
¶51 While we agree with the policy that greater criminal liability should attach to the theft of firearms whether loaded or unloaded, we are bound here to interpret when a defendant legally qualifies as “armed with ... a weapon” such that the defendant has a firearm readily accessible and available for use. Because Montana’s statutory scheme does not specifically define weapons so as to single out either firearms or deadly weapons, we cannot agree that a defendant who steals an unloaded firearm has a weapon readily accessible and available for use under the plain language of the statute. Any policy to provide greater punishment for the theft of unloaded firearms during the course of a burglary, or to provide greater punishment for the theft of any other specific types of weapons for that matter, must come from the Legislature.
¶52 Accordingly, we hold that when the State seeks to prove a defendant was “armed with... a weapon” under § 45-6-204(2)(a), MCA, the State meets this burden when it proves the defendant stole a loaded weapon during the course of a burglary. Further, the State does not meet this burden when it proves the defendant stole unloaded firearms, unless the State is also able to prove the defendant had an intent to use the unloaded firearms as a weapon. We note in making this holding that if the defendant loads a previously unloaded firearm stolen during the course of a burglary, the defendant obviously qualifies as armed with a weapon under § 45-6-204(2)(a), MCA.
¶53 We also note that this interpretation of § 45-6-204(2)(a), MCA, gives proper meaning to the term “armed” in other Montana statutes that imply an immediate and present ability to use a weapon. See, e.g., § 46-5-402, MCA (stop and frisk allowed when officer has “reasonable cause to suspect that the person is armed and presently dangerous”); § 37-60-101(2)-(4), MCA (Armed private security guard means an individual who, in addition to other requirements, wears or carries a firearm in the performance of the individual’s duties). This holding also fits with our prior use of the term “armed” in Montana case law. See, e.g., State v. Ahmed (1996), 278 Mont. 200, 205, 924 P.2d 679, 682 (victim testified defendant was armed with a gun); Kills On Top v. State (1995), 273 Mont. 32, 57, 901 P.2d 1368, 1384 (armed officers in the courtroom was not prejudicial to defendant); In re Shennum (1984), 210 Mont. 442, 684 P.2d 1073 (defendant was armed when he entered city council chambers with a loaded gun).
¶54 In sum, we hold that stealing loaded firearms in the course of committing an otherwise unarmed burglary elevates a burglary to an aggravated burglary by virtue of mere possession of the firearms. The burglar, whether he is so armed when he commences the burglary or becomes so armed dining the course of the burglary, nevertheless possesses a weapon which is readily accessible in furtherance of the crime.
C. Ray’s Convictions for Aggravated Burglary
¶55 Having determined that mere possession of a loaded firearm stolen during a burglary qualifies as armed with a weapon for purposes of aggravated burglary, while a showing of intent is required when a defendant steals an unloaded firearm, we now turn to apply this rule to Ray’s case. As mentioned above, we review denial of a motion for a directed verdict of acquittal to determine whether the district court abused its discretion. No abuse of discretion occurs if, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
¶56 At trial, the State presented evidence that Ray stole over a dozen hunting rifles and shotguns and several pistols from two of the residences, hence the two convictions for aggravated burglary, However, the State’s evidence only showed one of those weapons to be loaded. Therefore, we consider the two counts of aggravated burglary separately.
¶57 Regarding the count based in part on the loaded pistol from the McCarty residence, the State proved the firearm was loaded based on the testimony of the owner who stated that he knew the pistol was loaded when it disappeared from his residence. The State notes that testimony from only one witness is sufficient to prove a fact. State v. Merrick, 2000 MT 124, ¶ 13, 299 Mont. 472, ¶ 13, 2 P.3d 242, ¶ 13. Having reviewed the testimony, we hold that the State met its burden to prove Ray was in possession of a loaded firearm during the course of one of the burglaries. Therefore, regarding this conviction for aggravated burglary, the District Court did not abuse its discretion in denying Ray’s motion for a directed verdict.
¶58 Regarding the other conviction for aggravated burglary, the State failed to prove that any of the other firearms were loaded. Therefore, the District Court abused its discretion when it denied Ray’s motion for a directed verdict. At this point, Ray asserts the entire conviction must be reversed. Alternatively, the State argues that Ray’s conviction should be reduced from aggravated burglary to burglary. We agree with the State. On appeal, this Court may reduce the offense for which an appellant was convicted to a lesser included offense. State v. Stevens, 2002 MT 181, ¶ 54, 311 Mont. 52, ¶ 54, 53 P.3d 356, ¶ 54; § 46-20-703(3), MCA. As the State met all the other elements for burglary in this case, we hold that Ray’s conviction for aggravated burglary is hereby reduced to burglary and we remand to the District Court for resentencing on this conviction.
III. CONCLUSION
¶59 Because mere possession of a loaded firearm in the course of a burglary qualifies Ray as armed with a weapon, one of Ray’s convictions for aggravated burglary will stand. The other conviction is reduced to burglary. Further, the District Court is directed to conduct a speedy trial analysis consistent with Bruce and this Opinion.
¶60 Affirmed in part and reversed in part and remanded for proceedings consistent with this Opinion.
CHIEF JUSTICE GRAY, JUSTICES COTTER, LEAPHART, REGNIER and RICE concur.
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JUSTICE RICE
delivered the Opinion of the Court.
¶1 Appellant William Bailey (Bailey) appeals from the jury verdict and sentence entered by the Eighth Judicial District Court, Cascade County, finding Bailey guilty of robbery, a felony, and theft, a misdemeanor. We affirm.
¶2 Whether the jury had sufficient evidence to convict Bailey of robbery is the sole issue presented on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On May 1, 2000, the State of Montana filed an Information charging Bailey with robbery, a felony in violation of § 45-5-40l(l)(b), MCA; assault with a weapon, a felony in violation of § 45-5-213(l)(b), MCA; and theft, a misdemeanor in violation of § 45-6-30l(l)(c), MCA.
¶4 On April 18, 2000, Michael Mullin (Mullin) and Ryan Terry (Terry) were walking home from ShopKo in Great Falls, Montana, when they encountered two intoxicated males walking toward them, one of whom Mullin later identified as Bailey. As Mullin and Terry passed the two individuals, Bailey began questioning Mullin about the leather jacket he was wearing. Bailey and the other individual allowed Terry to continue walking, but stopped Mullin. Bailey asked Mullin if he could have the jacket. Mullin told Bailey he could not have the jacket but offered Bailey a compact disc instead. Bailey brandished a knife and ordered Mullin to give him the leather jacket. While brandishing the knife, Mullin testified that Bailey stated, “give me your jacket or else I’m going to kill you.” Fearing that Bailey would kill him, Mullin surrendered the jacket.
¶5 Mullin then ran home and called the police. Based on the physical description given by Mullin and Terry, officers were able to locate Bailey. Bailey admitted to coming in contact with Mullin and Terry and trying on the leather jacket. After being arrested and read his Miranda rights, Bailey asked whether the police would drop the charges if he returned the jacket. Bailey denied pulling a knife or threatening Mullin’s life. Terry testified that he was about ten feet away from the incident, but never saw Bailey brandish a knife. The police never located the knife.
¶6 On October 17, 2000, at the conclusion of trial, the jury returned verdicts of guilty on the robbery count and the theft count, and a verdict of not guilty on the count of assault with a weapon. The District Court entered judgment and sentence on March 27, 2001, sentencing Bailey to twenty-five years in the Montana State Prison with five years suspended on the robbery conviction, and six months on the theft conviction, which was ordered to run concurrently with the robbery sentence. Bailey appeals his conviction.
STANDARD OF REVIEW
¶7 This Court reviews the sufficiency of the evidence to determine whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Lantis, 1998 MT 172, ¶ 32, 289 Mont. 480, ¶ 32, 962 P.2d 1169, ¶ 32.
DISCUSSION
¶8 Bailey argues that the State failed to provide sufficient evidence to prove beyond a reasonable doubt that he was guilty of robbery, because the jury found him not guilty of assault with a weapon.
¶9 The offense of robbery is defined in § 45-5-401(l)(b), MCA, as follows:
(1) A person commits the offense of robbery if in the course of committing a theft, the person:
(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury.
Theft is defined as:
(1) A person commits the offense of theft when the person purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
(c) uses, conceals, or abandons the property knowing that the use, concealment, or abandonment probably will deprive the owner of the property.
Section 45-6-301(l)(c), MCA. The offense of assault with a weapon is defined as:
(1) A person commits the offense of assault with a weapon if the person purposely or knowingly causes:
(a) bodily injury to another with a weapon; or
(b) reasonable apprehension of serious bodily injury in another by use of a weapon or what reasonably appears to be a weapon.
Section 45-5-213(1), MCA.
¶10 Bailey asserts that since the assault was an underlying requirement for the conviction of the robbery, the conviction should be overturned. Bailey claims it is inconsistent to convict someone of robbery and acquit the same person on assault with the same evidence. According to Bailey, the only evidence presented that an assault or a threat of violence occurred was the testimony of Mullin, and because the jury acquitted Bailey of assault, the charge involving a knife, the jury must not have believed Mullin’s testimony regarding the knife. Because no other evidence was presented to establish that Bailey assaulted Mullin, Bailey argues that the verdict was inconsistent and there was insufficient evidence to support the guilty verdict on the robbery charge.
¶11 However, an analysis of the elements of these charges demonstrates that the verdicts rendered by the jury were not necessarily inconsistent. To prove robbery, the State had to show that Bailey, in the course of committing a theft, threatened to inflict bodily injury upon Mullin or purposely or knowingly put him in fear of-immediate bodily injury. See § 45-5-401(l)(b), MCA. Bailey was also charged with assault with a weapon. Proving that charge required proof that Bailey had caused reasonable apprehension of serious bodily injury in Mullin, and also required proof that Bailey had done so by use of a weapon or what appeared to be a weapon. See § 45-6-30l(l)(c), MCA. Therefore, the elements of these offenses are not identical. It was entirely possible, for example, for the jury to have believed Mullin’s testimony that Bailey had threatened him (Mullin) while forcefully taking the jacket, but also believed Bailey’s testimony that there was no knife, which was consistent with Terry’s testimony of not seeing a knife, and the police’s inability to locate a knife. Thus, the jury could have acquitted Bailey of assault with a weapon, and yet convicted him of robbeiy, which does not require a weapon. Such a result does not constitute an “inconsistent verdict.”
¶12 However, speculation about the jury’s intention is not necessary. Although the verdicts here were not necessarily inconsistent, an inconsistent criminal verdict does not require speculation about the jury’s intention, as “[a] general principle of law is that consistency in criminal verdicts is unnecessary.” State v. Fitzpatrick (1977), 174 Mont. 174, 191, 569 P.2d 383, 395; Dunn v. United States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356. The United States Supreme Court has cautioned about engaging in such speculation about a jury’s criminal verdict:
We also reject, as imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake. ... Courts have always resisted inquiring into a jury’s thought processes, [citations omitted]; through this deference the jury brings to the criminal process, in addition to the collective judgment of the community, an element of needed finality.
[W]e note that a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support • any rational determination of guilt beyond a reasonable doubt.
United States v. Powell (1984), 469 U.S. 57, 66-67, 105 S.Ct. 471, 477-78, 83 L.Ed. 2d 461, 470-71.
¶13 Thus, the question is not whether a criminal jury’s verdict is inconsistent, but whether the verdict is supported by sufficient evidence. Here, much of the State’s case rested upon Mullin’s testimony, which was sufficient, by itself, to establish all of the elements of robbery. This Court has consistently held:
The testimony of one witness is sufficient to prove a fact. ... Additionally, the weight and credibility of witnesses are exclusively the province of the trier of fact. In the event of conflicting evidence, it is within the province of the trier of fact to determine which will prevail.
State v. Merrick, 2000 MT 124, ¶ 13, 299 Mont. 472, ¶ 13, 2 P.3d 242, ¶ 13; State v. Santos (1995), 273 Mont. 125, 131, 902 P.2d 510, 514; and State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94.
¶14 Given the evidence presented at trial, we find there was sufficient evidence for a rational trier of fact to find the essential elements of robbery beyond a reasonable doubt. Therefore, we will not disturb the jury’s verdict.
¶15 Affirmed.
JUSTICES COTTER, LEAPHART, NELSON and REGNIER concur.
|
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CHIEF JUSTICE TURNAGE
delivered the Opinion of the Court'
¶1 William Lee Jones, Jones Equipment and Jones Equipment, Inc. (collectively, Jones) brought this action to renew a judgment entered against Gary Arnold (Arnold). The Fourth Judicial District Court, Missoula County, entered summary judgment in favor of Jones, and Arnold appeals. We affirm the decision of the District Court.
ISSUE
¶2 The issue in this case is whether the District Court erred by granting summary judgment on the issue of whether § 27-2-201(1), MCA, precludes a creditor from seeking the renewal and extension of a judgment beyond the original statutory ten-year limitation period.
BACKGROUND
¶3 On March 10, 1986, in the Fourth Judicial District Court, Missoula County, Jones obtained a money judgment against Arnold in the amount of $32,695.00. On February 7,1996, Jones filed a complaint before that same court to renew the March 10,1986 judgment and extend it for an additional ten years pursuant to § 27-2-201(1), MCA. Upon cross motions for summary judgment, the District Court granted summary judgment in favor of Jones, holding that the action to renew the judgment was properly brought, that the complaint filed by Jones satisfied the necessary procedural requirements for obtaining a new judgment on the existing judgment, and that Jones was entitled to relief as a matter of law. The District Court subsequently entered summary judgment against Arnold renewing the prior judgment and extending its life for an additional ten years.
DISCUSSION
¶4 Did the District Court err in granting, summary judgment on the issue of whether § 27-2-201(1), MCA, precluded a creditor from seeking the renewal and extension of a judgment beyond the original statutory ten-year limitation period?
¶5 Under Rule 56(c), M.R.Civ.R, summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Conclusions of law made by the trial court are reviewable by this Court de novo. Public Employees’ Ass’n v. Department of Transp., 1998 MT 17, ¶ 8, [287 Mont. 229], 954 P.2d 21, ¶ 8.
¶6 Section 27-2-201(1), MCA, reads in pertinent part: “[T]he period prescribed for the commencement of an action upon a judgment or decree of any court of record of the United States or of any state within the United States is within 10 years.” It is Arnold’s contention that an “action on a judgment” as that term is used in § 27-2-201(1), MCA, is limited to those ancillary actions which are specifically defined elsewhere in the Code. These actions include an action to transfer judgment to another venue, an action to obtain a writ of execution, an action to extend a judgment lien beyond its statutory six-year life, commencement of proceedings in aid of execution of the judgment, and commencement of contempt proceedings. Arnold argues that an action to extend the life of a judgment is not an action specifically provided for in the Code, nor is it contemplated within the language of § 27-2-201(1), MCA, because it does not share the collection and enforcement function of the other ancillary actions. Furthermore, Arnold argues, there is a dearth of case law in which the right to seek an extension of a judgment is established or recognized.
¶7 We disagree with Arnold’s contention that the law of Montana does not provide for a cause of action to renew a judgment and extend its life beyond the ten-year statute of limitations period. To the contrary, several of the prior decisions of this Court cited by Arnold clearly recognize the right of a creditor to seek a judgment on a prior judgment in order to extend the effectiveness of the original judgment beyond the statutorily defined limitations period. In Welch v. Huber (1993), 262 Mont. 114, 116, 862 P.2d 1180, 1181, this Court stated: “A judgment creditor may file an action to extend a district court’s judgment beyond its initial ten-year duration; the judgment cannot be extended past ten years by ex parte motion ...” (Emphasis added.) This same conclusion was reiterated by the Court two years later:
[W]hile a judgment cannot be extended past 10 years by ex parte motion, nevertheless, a judgment creditor may file an action to extend a district court’s judgment beyond its initial 10-year duration. [Citation omitted.] In other words, enforcement of a judgment is barred by § 27-2-201(1), MCA, after the judgment’s 10-year duration has expired. [Citation omitted.] If before that 10-year duration expires the judgment creditor desires to extend the judgment past 10 years, then he must file a separate action on the existing judgment and obtain a new judgment.
Jones v. Arnold (1995), 272 Mont. 317, 327, 900 P.2d 917, 924.
¶8 The result reached by the Court in both Welch and Jones is wholly consistent with the historical development of the enforcement of the statutory limitations period against a judgment creditor seeking renewal of a judgment of record. The right of revivor of a dormant judgment was recognized at common law through the procedural mechanism of a writ of scire facias. Although the merger of the courts of law and equity resulted in the abolition of this ancient form of pleading, the cause of action was nonetheless perpetuated under Montana’s earliest codified versions of the rules of civil procedure, which also codified a limitations period on the life of a judgment. See Haupt v. Burton (1898), 21 Mont. 572, 55 P. 110 (under the Code of Civil Procedure set forth in the Compiled Statutes of 1887 a judgment could be revived either by filing a motion or by filing a complaint seeking the remedy of revivor, provided that the action was commenced within the six-year statute of limitations period). The early Court determined that the statutory remedies related to the execution of a judgment were cumulative and did not preclude an action for the extension of the life of a judgment. Lindsay Great Falls Co. v. McKinney Motor Co. (1927), 79 Mont. 136, 143, 255 P. 25, 28. Although later versions of the Code extended the limitations period for the life of a judgment from six to ten years, the Court maintained its conclusion that an “action for revival or renewal may he brought as a matter of right within ten years.” State v. Hart Refineries (1939), 109 Mont. 140, 142, 92 P.2d 766, 768.
¶9 If the earlier versions of the statutory limitations periods, which are virtually identical in language to the current version of § 27-2-201(1), MCA, did not operate to eviscerate the right of a judgment creditor to seek renewal and extension of a judgment, it would be difficult to reconcile why we should now determine that such a right no longer exists by operation of § 27-2-201(1), MCA, as it is currently in force. Given the consistency and longevity of the Court’s recognition of this cause of action, we reject Arnold’s arguments regarding the vitiating effect § 27-2-201(1), MCA, on Jones’ right to seek an extension of his judgment.
¶10 Because the District Court’s summary judgment is consistent with the rules for extending the legal life of a judgment as set forth in both Welch and Jones, we hold that the District Court did not err in granting summary judgment with regard to Jones’ right to bring an action to renew the prior money judgment entered against Arnold.
¶11 Affirmed.
JUSTICES LEAPHART, NELSON, REGNIER and HUNT concur.
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] |
JUSTICE COTTER
delivered the Opinion of the Court.
¶1 Appellant Donald William Clark filed a petition for dissolution of marriage in the Fourth Judicial District Court, Missoula County. A dispute arose between Donald and Respondent, Sharon Dale Clark, as to the distribution of the marital estate. Subsequent to trial, the District Court issued findings of fact and conclusions of law, and amended findings of fact and conclusions of law. Donald appeals. We affirm the judgment of the District Court.
¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court equitably distribute the real property that Donald acquired prior to his marriage to Sharon?
¶4 2. Did the District Court abuse its discretion when it ordered Donald to pay Sharon’s moving expenses?
FACTUAL AND PROCEDURAL BACKGROUND
¶5 Donald William Clark and Sharon Dale Clark were married on November 29,1996. Prior to their marriage, Donald and Sharon lived together for approximately seven years. On September 10, 1999, Donald filed a petition for dissolution of marriage. A dispute then arose between Donald and Sharon as to the distribution of the marital estate.
¶6 The case proceeded to trial on April 11, 2001. On May 22, 2001, the District Court issued its findings of fact, conclusions of law, dissolution of marriage, and order. Donald subsequently filed a motion requesting that the District Court amend portions of its findings of fact and conclusions of law on May 30,2001. On July 26, 2001, the District Court issued an order, granting in part, and denying in part, Donald’s motion to amend. The District Court then issued its amended findings of fact and conclusions of law that same day. Donald appealed on August 6, 2001.
STANDARD OF REVIEW
¶7 We review the division of marital property by a district court to determine whether the findings upon which the district court relied are clearly erroneous. In re Marriage of Davis, 1999 MT 218, ¶ 20, 295 Mont. 546, ¶ 20, 986 P.2d 408, ¶ 20. If the findings are not clearly erroneous, “we will affirm the distribution of property unless the district court abused its discretion.” Davis, ¶ 20 (citations omitted). The test for abuse of discretion in a dissolution proceeding is whether the district court “acted arbitrarily without employment of conscientious judgment,” or whether the district court “exceeded the bounds of reason resulting in substantial injustice.” Davis, ¶ 20 (citations omitted).
¶8 We review the District Court’s interpretation of the law to determine whether the court’s interpretation is correct. Hayes v. Hayes (1994), 264 Mont. 350, 352, 871 P.2d 913, 914.
DISCUSSION
ISSUE 1
¶9 Did the District Court equitably distribute the real property that Donald acquired prior to his marriage to Sharon?
¶10 Donald’s marriage to Sharon was his second marriage. In the dissolution of his first marriage, Donald was awarded ownership of a home located on eleven acres of land near Huson, Montana (hereinafter referred to as the Elk Meadows property). At the time Donald acquired the Elk Meadows property its approximate value was $125,000. However, Donald had a mortgage on the property in a sum that exceeded its value.
¶11 Donald and Sharon moved onto the Elk Meadows property in 1990. Sharon then began making improvements to both the home and its surrounding property. These improvements were substantial, and the District Court found that Sharon’s efforts constituted “a major contribution to increasing the value of the Elk Meadows property.”
¶12 As we noted above, Donald and Sharon were married on November 29, 1996. On October 14, 1997, seven years after Sharon moved onto the Elk Meadows property, the property was reappraised and assigned an approximate value of $324,000. Donald filed a petition for dissolution of marriage on September 10, 1999. In its distribution of the marital estate, the District Court awarded Sharon one-half of the net proceeds from the sale of the Elk Meadows property. The Elk Meadows property ultimately sold for $348,000.
¶13 On appeal, Donald does not dispute the District Court’s finding that Sharon’s efforts substantially increased the value of the Elk Meadows property. Rather, Donald contends that because he and Sharon were not married at the time Sharon improved the Elk Meadows property, her efforts should not have been considered in the distribution of the marital estate.
¶14 This Court addressed a similar situation in In re Marriage of Rolf, 2000 MT 361, 303 Mont. 349, 16 P.3d 345. In Rolf, the parties began living together in February of 1994, and married in November of 1996. Rolf, ¶¶ 7, 9. The husband then filed for dissolution in February of 1998. Rolf, ¶ 14. In considering the division of the marital estate, the District Court noted that “it would be wholly inequitable for the Court to disregard the relationship of the parties as it existed from February of 1994 and especially from June, 1995[,] when the parties relocated to Florence, Montana.” Rolf, ¶ 33. As such, the District Court awarded the wife $80,000 of the value of the home in Florence, Montana, that the husband had purchased in 1995. Rolf, ¶¶ 7-8, 17.
¶15 The husband appealed, asserting that, in making its property division, the District Court had erroneously included a period of premarital cohabitation within the term of the marriage. Rolf, ¶ 31. We examined the husband’s claim and noted that: “[W]hile it would be inappropriate to consider the parties’ premarital cohabitation as part of the term of the marriage itself, it was necessary in this case for the District Court to consider the parties’ premarital history to aid in determining which party brought what assets into the marriage.” Rolf, ¶ 36. Consequently, we concluded that the District Court did not err in considering the parties’ premarital cohabitation in apportioning the marital estate.
¶16 In the instant case, Donald and Sharon began living together on the Elk Meadows property in 1990, and Sharon immediately began making improvements to the property. The effect of Sharon’s efforts is evidenced by the property’s increase in value from $125,000 in 1990 to $324,000 in 1997. However, because Donald and Sharon did not marry until 1996, the bulk of the improvements to the Elk Meadows property were made during Donald and Sharon’s premarital cohabitation. Accordingly, we conclude as we did in RoZ/" that, under the facts of this case, it would be inequitable to disregard Donald and Sharon’s premarital cohabitation when considering Sharon’s contributions to the marital estate. Therefore, we hold that the District Court did not err in considering Donald and Sharon’s premarital cohabitation in its distribution of the marital estate.
¶17 Donald further alleges that even if the District Court properly considered Sharon’s premarital improvements to the Elk Meadows property, the District Court abused its discretion when it awarded Sharon one-half of the net proceeds from the sale of the property. Section 40-4-202, MCA (1997), sets forth the guidelines for distributing preacquired or gifted property as part of a marriage dissolution. Section 40-4-202, MCA (1997), provides, in pertinent part:
In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property[.]
¶18 We have previously interpreted the above provision to mean that if the nonacquiring spouse contributed to the property’s preservation or appreciation, then the nonacquiring spouse is entitled to an equitable share of the appreciated or preserved value which is attributable to his or her efforts. Rolf, ¶ 46, see also In re Marriage of Steinbeisser, 2002 MT 309, ¶ 47, 313 Mont. 74, ¶ 47, 60 P.3d 441, ¶ 47. However, we have also held that in the event that gifted or preacquired assets have not appreciated during a marriage, their value at the dissolution of the marriage cannot be considered a contribution from the marital effort. Rolf, ¶ 47.
¶19 In this case, Donald acquired the Elk Meadows property in 1990. At the time Donald acquired the property, it had an approximate value of $125,000, but because of the mortgage that was in place, it had no net value. Donald and Sharon moved onto the property in 1990 and married on November 29, 1996. The Elk Meadows property was then reappraised in 1997 at an approximate value of $324,000. Accordingly, we conclude that sufficient evidence existed to demonstrate that the Elk Meadows property appreciated in value during both Donald and Sharon’s premarital cohabitation as well as their marriage. Therefore, pursuant to § 40-4-202, MCA(1997), Sharon is entitled to receive an equitable share of the property’s appreciated value, attributable to her efforts.
¶20 A district court is vested with broad discretion to distribute the marital estate in a manner which is equitable to each party according to the circumstances of the case. In re Marriage of Smith (1995), 270 Mont. 263, 267, 891 P.2d 522, 525. Here, the Elk Meadows property had no net value prior to Donald’s premarital cohabitation with Sharon, as at the time Donald acquired the property it had an approximate value of $125,000 and a mortgage of approximately $140,000. As such, the property’s increase in net value occurred as a result of improvements that Donald and Sharon made during their premarital cohabitation and marriage. It is undisputed that a large portion of this increase in value was directly attributable to Sharon’s efforts. Accordingly, the District Court determined that Sharon’s equitable share of the Elk Meadows property was one-half of the net proceeds from the sale of that property. We find no abuse of discretion in this award. The District Court’s division of the Elk Meadows property is affirmed.
ISSUE 2
¶21 Did the District Court abuse its discretion when it ordered Donald to pay Sharon’s moving expenses?
¶22 The District Court issued its original findings of fact and conclusions of law regarding the distribution of the marital estate on May 22, 2001. Donald subsequently filed a motion requesting that the District Court amend portions of its findings of fact and conclusions of law. Donald’s motion stated, in pertinent part:
In its Decree, the Court makes no determination as to who has the right to continue to live in the [Elk Meadows] home pending its sale, who has the right to choose the Realtor, who has to pay the expenses of maintaining the home pending its sale including the taxes and mortgage and who has the responsibility of continuing maintenance and to what extent. The Court is asked to resolve this matter by making further findings as to those matters. Don requests that he be given the exclusive use of the home, that he pay the mortgage and taxes and that the same be repaid to him upon sale of the home, before the monies are split equally between the parties.
¶23 The District Court responded by granting in part, and denying in part, Donald’s motion to amend. The District Court then issued amended findings of fact and conclusions of law, which included the following conclusion of law:
Pending the sale of the Elk Meadows property, the original and second mortgages shall be paid by Don as reasonable rent for the property. Concurrent with the responsibility of paying the mortgages pending the sale of the real property, Don shall also have the right to occupy the Elk Meadows property. Concurrent with the rights and responsibilities noted above, Don shall also be required to pay Sharon $1500.00 in moving expenses. Sharon shall have thirty (30) days from the date of this order in which to find other appropriate living arrangements and move out of the Elk Meadows property.
¶24 Donald maintains that the District Court abused its discretion when it ordered him to pay Sharon’s moving expenses. However, Donald testified at trial that he would be willing to pay a reasonable amount of money to assist Sharon in moving out of the Elk Meadows property. Therefore, the District Court had a logical reason for ordering Donald to pay Sharon’s moving expenses once it granted his request for exclusive use of the Elk Meadows property. As we noted above, a district court is vested with broad discretion to distribute the marital estate in a manner which is equitable to each party according to the circumstances of the case. Smith, 270 Mont. at 267, 891 P.2d at 525. We will not reverse a district court’s distribution of property absent an abuse of discretion. In re Marriage of Engen, 1998 MT 153, ¶ 26, 289 Mont. 299, ¶ 26, 961 P.2d 738, ¶ 26. Donald has not demonstrated that such an abuse of discretion occurred in this case. Accordingly, the District Court’s award of moving expenses is affirmed.
¶25 As a final matter, we note that Donald’s opening brief asserted three additional claims regarding the District Court proceedings in this case. However, Donald failed to bolster these claims with any supporting authority. Donald devoted approximately fifteen pages to his factual arguments on these issues in his opening brief, but failed to cite any authority applicable to his claims. Rule 23(a)(4), M.R.App.P., requires that an appellant provide an argument that contains “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and pages of the record relied on.” This Court has repeatedly held that “we will not consider unsupported issues or arguments.” In re Custody of Krause, 2001 MT 37, ¶ 32, 304 Mont. 202, ¶ 32, 19 P.3d 811, ¶ 32. Moreover, it is “not this Court’s obligation to locate authorities or formulate arguments for a party in support of positions taken on appeal.” In re B. P., 2001 MT 219, ¶ 41, 306 Mont. 430, ¶ 41, 35 P.3d 291, ¶ 41. As such, we decline to address the three additional issues presented by Donald in his opening brief.
¶26 For the foregoing reasons, the judgment of the District Court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES NELSON, LEAPHART and RICE concur.
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] |
DISTRICT COURT JUDGE TODD, sitting for former JUSTICE TRIEWEILER,
delivered the Opinion of the Court.
¶1 Pursuant to Rule 44(c) of the Montana Rules of Appellate Procedure, Chief Judge Donald W. Molloy of the United States District Court for the District of Montana, Missoula Division, certified two questions to this Court. The two questions from the United States District Court are:
¶2 1. Is a shareholder or relative of a shareholder of a closely-held corporation covered by an automobile liability policy issued to the closely-held corporation when the terms of the policy include coverage reference to “relatives”?
¶3 2. Given the facts of this case, if Kristine Lierboe is covered under the Shining Mountain Design and Construction, Inc., policy, does the anti-stacking holding in Ruckdaschel apply under the terms of these policies?
¶4 For the reasons discussed below, we will not address the first issue and find the second issue dispositive. We hold that, given the facts of this case, Kristine Lierboe is not covered under the Shining Mountain policy. Since this is a coverage case and not a stacking case, Ruckdaschel does not apply under the terms of the policies.
FACTUAL BACKGROUND
¶5 The United States District Court submitted the following facts as agreed upon by the parties: Plaintiff Lierboe is a resident of Kalispell, Flathead County, Montana. All class members were Montana insureds to whom insurance policies were issued in Montana. The collision that resulted in injuries to Lierboe occurred in Montana.
¶6 Defendant State Farm Mutual Automobile Insurance Company (State Farm) is a corporation existing under the laws of a state other than Montana and has its principal place of business in a state other than Montana. State Farm is authorized to transact business in Montana, and regularly transacts business in Montana. The acts and omissions that give rise to this case occurred in Montana. The insurance policies that gave rise to this action were issued to Lierboe and class members as Montana insureds.
¶7 On or about September 5,1996, Lierboe suffered physical injury as a result of an automobile collision. The vehicle Lierboe was driving at the time of the accident, a 1986 Jeep Cherokee, was insured by State Farm (policy number 107 0721-D12-26D). The named insureds on the policy were Hal C. Trost and Kristine Lierboe of Whitefish, Montana. The policy provided medical payment coverage (MPC) with limits of $5,000.
¶8 Lierboe had an interest in a corporation, Shining Mountain Design and Construction (Shining Mountain), on the date of the accident. Shining Mountain had two automobile insurance policies issued by State Farm. Policy number 107 2821-C01-26G covered a 1991Dodge Dakota pickup truck; this particular policy had MPC with limits of $5,000. Policy number 108 0457-E25-26H covered a 1970 IHC flatbed truck; this particular policy did not have MPC.
¶9 On September 16, 1996, State Farm wrote Lierboe and acknowledged her claim for MPC as a result of the accident. State Farm advised Lierboe that her MPC limit was $5,000. Lierboe submitted medical bills in excess of $5,000. On June 2, 1997, State Farm advised Lierboe that she had reached her medical payment policy limits.
¶10 On November 13, 1997, the Montana Supreme Court decided Ruckdaschel v. State Farm Mut. Auto Ins. Co. (1997), 285 Mont. 395, 948 P.2d 700. The State Farm automobile policy at issue in this case provides MPC benefits to a person entitled coverage for reasonable medical expenses that are necessary as a result of a covered accident. The benefits are available for expenses incurred within three years of an accident. State Farm did not notify Lierboe that she was entitled to additional medical payment benefits after June 2, 1997. State Farm did not pay any additional medical benefits to Lierboe after June 2, 1997.
¶11 On March 18, 1999, the Office of the State Auditor and Commissioner of Insurance for the State of Montana sent a letter to State Farm. The letter alerted State Farm to the application of the Ruckdaschel ruling to other Montana insureds. Following the decision in Ruckdaschel, State Farm considered the application of the holding to pending claims.
GIVEN THE FACTS OF THIS CASE, IF KRISTINE LIERBOE IS COVERED UNDER THE SHINING MOUNTAIN DESIGN AND CONSTRUCTION, INC., POLICY, DOES THE ANTI-STACKING HOLDING IN RUCKDASCHEL APPLY UNDER THE TERMS OF THESE POLICIES?
¶12 In this case, Lierboe argues that she can stack the personal MPC coverage of the Jeep she was driving with the Shining Mountain MPC coverage of the Dodge which was not involved in the accident. The unambiguous language of the Dodge policy excludes coverage for Lierboe’s accident in the Jeep. At the end of the Dodge MPC section, under the heading “What Is Not Covered,” the policy states:
THERE IS NO COVERAGE:
4. FOR MEDICAL EXPENSES FOR BODILY INJURY: a. SUSTAINED WHILE OCCUPYING OR THROUGH BEING STRUCK BY A VEHICLE OWNED OR LEASED BY YOU OR ANY RELATIVE, WHICH IS NOT INSURED UNDER THIS COVERAGEE.]
¶13 The No Coverage Provision of the Dodge policy is clear and unambiguous. Lierboe is claiming medical expenses from the Dodge MPC policy that she sustained while she was occupying a vehicle (her 1986 Jeep) owned by her. Lierboe argues that an interpretation of the Dodge policy exclusion excluding MPC would violate her reasonable expectations. But “[e]xpectations which are contrary to a clear exclusion from coverage are not ‘objectively reasonable.’ “ Stutzman v. Safeco Insurance Co. of America (1997), 284 Mont. 372, 381, 945 P.2d 32, 37 (quoting Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 359, 849 P.2d 190, 194).
¶14 The Jeep policy clearly and unambiguously states in its MPC section that only insureds get MPC under the policy covering the Jeep: “These persons [for whom medical expenses are payable] have to sustain the bodily injury: a. while they operate or occupy a vehicle covered under the liability section[.]” Medical payment coverage follows only the listed vehicle and not other vehicles.
¶15 Lierboe also argues that the No Coverage provision of the Shining Mountain Dodge MPC is ambiguous when it states there is no coverage for injury sustained while occupying an owned vehicle “not insured under this coverage.” When the provision states that there is no coverage for injuries sustained while occupying an owned vehicle not insured under “this coverage,” the phrase “this coverage” refers only to the Dodge policy. Therefore, there is “no coverage” for injuries sustained while occupying any owned vehicle other than the Dodge. The word “this” does not mean “other.” “This” means “this.”
¶16 Other jurisdictions that have examined identical “no coverage” provisions from State Farm policies have held that such a limitation to vehicles insured under “this coverage” unambiguously excludes coverage for injuries sustained while occupying owned vehicles insured under other coverages. In a case very similar to this case, the New Mexico Supreme Court rejected an insured’s argument for stacking MPC:
The relevant portions of the policy, supra, clearly indicate that medical coverage is for the vehicle described in the policy only and, therefore, unambiguously rejects stacking----
The policies state that State Farm will pay medical expenses to certain enumerated parties while they operate a vehicle covered under the liability section. The liability section obligates the insurer to pay for loss resulting from the use of “your car,” which is defined as the one car owned by Sanchez [insured] that the policy covers. The policy further excludes injury sustained while occupying any vehicle owned by Sanchez that is not insured by the coverage of the policy.
Sanchez v. Herrera (N.M. 1989), 783 P.2d 465, 470. The Missouri Supreme Court held that a no coverage provision identical to the case at bar “clearly expresses the intention to limit coverage to injuries caused by the insured vehicle or vehicles.” Hempen v. State Farm Mut. Auto Ins. Co. (Mo. 1985), 687 S.W.2d 894, 895.
¶17 In 1997, this Court decided Ruckdaschel. Ruckdaschel was injured when she was struck as a pedestrian by a car driven by a State Farm insured. The “anti-stacking” language of the State Farm policy in Ruckdaschel was held to be unenforceable as a violation of Montana’s public policy. Ruckdaschel, 285 Mont. at 399, 948 P.2d at 703.
¶18 In Ruckdaschel, each State Farm policy contained language that said State Farm would cover expenses for bodily injury sustained “through being struck as a pedestrian by a motor vehicle or trailer.” Ruckdaschel, 285 Mont. at 397, 948 P.2d at 701. Only the operation of the anti-stacking clauses contained in each policy, which the Court held unenforceable, prevented Ruckdaschel from recovering under multiple policies. Ruckdaschel, 285 Mont. at 399, 948 P.2d at 702. Ruckdaschel does not apply in this case because Lierboe’s accident in her Jeep was covered by only a single policy. Therefore, there was no second covering policy to stack. No stacking issue exists unless there are multiple policies which actually cover the accident in question.
¶19 Lierboe’s argument in this case is based on a fundamental misconception oihoDiRuckdaschel and the insurance policies at issue. Ruckdaschel invalidated anti-stacking provisions and held that when two or more MPC coverages apply to a given accident, the insured may recover up to the limit of both. In this case, Lierboe’s accident in her Jeep was, for reasons entirely unrelated to any anti-stacking language, only covered by the Jeep policy and was not covered by the Shining Mountain Dodge policy. As Lierboe’s accident was covered only by a single policy, there is no second policy to stack. Therefore, the anti-stacking provision never comes into play, and the Ruckdaschel decision does not apply.
¶20 The distinction between named insureds and those who qualify as insureds only by virtue of their occupancy in the vehicle was pointed out in our decision in Chilberg v. Rose (1995), 273 Mont. 414, 903 P.2d 1377. The plaintiff in Chilberg was injured as a passenger in a car owned by Jay Dean and insured by Mid-Century Insurance Company. Dean had three cars insured under separate policies through Mid-Century at the time of the accident. The plaintiff attempted to stack the MPC and uninsured motorist benefits of all three policies. Chilberg, 273 Mont. at 415, 903 P.2d at 1378.
¶21 The Chilberg Court held that stacking coverages in that case was not appropriate because the plaintiff “[did] not qualify as an insured under the two disputed policies because he was not occupying the cars insured under the two disputed policies.” Chilberg, 273 Mont. at 417, 903 P.2d at 1379. Permitting Chilberg to stack policies did not further the public policy rationale in Bennett v. State Farm Mut. Auto. Ins. Co. (1993), 261 Mont. 386, 862 P.2d 1146. The Chilberg Court went on to state “Chilberg was a passenger who neither had ‘reasonable expectations’ of coverage under the policy nor did he qualify as an insured spouse or family member under more than one policy.” Chilberg, 273 Mont. at 418, 903 P.2d at 1380.
¶22 The distinction between Ruckdaschel and Chilberg is clear. In Ruckdaschel, the accident of the insured was covered by multiple policies and, once the anti-stacking clause was struck down, the insured was entitled to stack the policy limits. In Chilberg, as in this case, coverage was excluded under the second policy because the plaintiff did not occupy the vehicle covered by that policy. Lierboe in this case did not have reasonable expectations of coverage under the Shining Mountain policy as she did not qualify as an insured under more than one MPC policy. Therefore, there was no stacking issue. This case involves only a coverage issue.
¶23 Based upon the foregoing analysis, we answer that Kristine Lierboe is not covered under the Shining Mountain and Design Construction, Inc., policy. Therefore, the anti-stacking holding in Ruckdaschel does not apply under the terms of these policies.
CHIEF JUSTICE GRAY, and JUSTICES LEAPHART, COTTER and RICE concur.
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CHIEF JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Jack Wayne Flanagan pled guilty to felony sexual assault. The Fourteenth Judicial District Court, Musselshell County, imposed a 10-year prison sentence, suspended on conditions. Flanagan appeals. We affirm in part, reverse in part and remand.
¶2 We address the following issues:
¶3 1. Did the District Corut err in making findings based on a presentence investigation report not offered or admitted as an exhibit?
¶4 2. Did the District Court err by giving inadequate reasons for imposing the 10-year suspended sentence?
¶5 3. Did the District Court err in imposing probation conditions with no nexus to the offense committed?
¶6 4. Did the District Court err in imposing restitution as a condition of Flanagan’s suspended sentence?
¶7 5. Does the presentence investigation report provide an adequate basis for the determination of-and did the District Court err in imposing restitution without specifying- the timing of Flanagan’s restitution payments?
¶8 6. Did the District Court err in ordering that all of Flanagan’s assets in the marital estate and probate estate after his death be used to pay restitution?
BACKGROUND
¶9 In 2001, Flanagan pled guilty to sexually assaulting a 15-year-old girl in his home in 1998. The District Court accepted his plea and ordered a presentence investigation. Sally McRae, the probation and parole officer who performed the presentence investigation and prepared the associated report, testified at the sentencing hearing in January of2002. She did not recommend sending Flanagan, a 75-year-old married man, to prison because he appears amenable to outpatient treatment. Instead, McRae recommended a suspended sentence of at least five years, sex offender treatment, and restitution to the victim of $4,945.31 for medical and counseling costs not covered by insurance. Flanagan also testified.
¶10 Much of the testimony at the sentencing hearing related to Flanagan’s ability to pay restitution as reflected in the income and expense figures in the presentence investigation report. Flanagan testified his monthly income was $624 in social security benefits and listed monthly expenses of $150 for supplemental health insurance, $200 for prescription drugs, and $210 for sex offender treatment. In describing his assets, Flanagan testified he and his wife each had paid half of the $47,000 down payment on their home and she had made all of the subsequent mortgage payments from her wages. The couple owned three vehicles with a total value of $6,000, and otherwise kept their finances separate.
¶11 Reports on a psychological evaluation of Flanagan by Dr. Donna Veraldi and a psychosexual evaluation of him by Marla North, a sex offender therapist, also were before the court for sentencing purposes. North deemed Flanagan amenable for specialized outpatient sex offender treatment and recommended that he enter and complete such treatment for a minimum of two years. She also recommended that he be prohibited from consuming alcohol or illegal drugs or misusing prescription drugs; restricted from pornography in any form, from time alone with minors and from any contact with the victim and her family unless pre-approved by the victim’s therapist and his treatment team; and financially responsible for any counseling or treatment costs needed by the victim regarding this incident.
¶12 The District Court sentenced Flanagan to 10 years in prison, suspended on numerous conditions including sex offender treatment. It also ordered Flanagan to pay $4,945.31 to the victim for treatment costs not covered by insurance and “all future costs for the next two years only which may be incurred if related to this offense.”
DISCUSSION
¶13 1. Did the District Court err in making findings based on a presentence investigation report not offered or admitted as an exhibit?
¶14 Flanagan contends no factual finding may be made based on a presentence investigation report not offered as an exhibit or made part of the record at the sentencing hearing. He cites no authority for this contention as required by Rule 23(a)(4), M.RApp.P., and, as a result, it is not necessary that we address it. See State v. Olson, 2002 MT 211, ¶ 18, 311 Mont. 270, ¶ 18, 55 P.3d 935, ¶ 18. In any event, Flanagan’s contention is without merit.
¶15 Section 46-18-113, MCA, mandates that the presentence investigation be part of the court record. In this case, the written presentence investigation report was filed in the District Court record as required by statute.
¶16 Because the presentence investigation report was already part of the District Court record in Flanagan’s case, it was not required to be separately offered or admitted into evidence at the sentencing hearing. We hold the District Court did not err in making findings based on the presentence investigation report.
¶17 2. Did the District Court err by giving inadequate reasons for imposing the 10-year suspended sentence?
¶18 Sexual assault by a person 3 or more years older than a victim under the age of 16 is punishable by life imprisonment or imprisonment for not less than 2, or more than 100, years. Section 45-5-502(3), MCA. The mandatory minimum sentence does not apply if the sentencing court determines treatment of the offender in the local community affords a better opportunity for rehabilitation and the ultimate protection of the victim and society. Section 46-18-222(6), MCA.
¶19 Pursuant to § 46-18-102(3)(b), MCA, a sentencing court must clearly state the reasons for the sentence it imposes. Flanagan contends in a conclusory fashion that the District Court did not give adequate reasons for imposing a 10-year suspended sentence instead of a shorter sentence which would still allow him time to complete sex offender treatment. We disagree.
¶20 The District Court stated it suspended Flanagan’s entire 10-year sentence because it agreed with North’s evaluation and found mitigating circumstances in that Flanagan was 75 years old, had significant health problems and was amenable to community treatment. The court further stated that requiring Flanagan to be under supervision for 10 years could effectively extend for the remainder of his natural fife.
¶21 We do not insist on extensive statements of sentencing reasons under § 46-18-102(3)(b), MCA. State v. Goulet (1996), 277 Mont. 308, 310, 921 P.2d 1245, 1246. On this record, we hold the District Court’s stated reasons for Flanagan’s 10-year suspended sentence satisfy the statutory requirements.
¶22 3. Did the District Court err in imposing probation conditions with no nexus to the offense committed?
¶23 Sections 46-18-201 and -202, MCA, allow a district court to impose sentencing restrictions or conditions that are “reasonable” and that the court considers necessary “to obtain the obj ectives of rehabilitation and the protection of the victim and society.” District courts are afforded broad discretion in sentencing criminal defendants and we will not overturn a court’s sentencing decision absent an abuse of discretion. State v. Christianson, 1999 MT 156, ¶ 31, 295 Mont. 100, ¶ 31, 983 P.2d 909, ¶ 31 (citation omitted).
¶24 Flanagan contends three conditions of his probation, relating to alcohol or drugs, have no nexus to his offense of felony sexual assault and the environment in which it was committed. The three conditions to which he objects are that he submit to alcohol and drug testing at his probation officer’s request; obtain a chemical dependency evaluation and, if recommended, chemical dependency treatment; and not frequent places where liquor or beer is the chief item of sale or possess alcohol or dangerous drugs. Flanagan relies primarily on State v. Ommundson, 1999 MT 16, 293 Mont. 133, 974 P.2d 620, in arguing the District Court erred in imposing these conditions.
¶25 In Ommundson, the defendant pled guilty to driving under the influence of alcohol (DUI). The district court suspended his prison sentence on conditions, including that he participate in a sex offender treatment program. Ommundson, ¶ 1. In imposing that restriction, the district court considered a presentence investigation report that documented Ommundson’s criminal history, including more than ten convictions for indecent exposure. Ommundson, ¶ 3. On appeal, we noted the absence of evidence that indecent exposure leads to increased occurrences of DUI or that treatment for indecent exposure will reduce the reoccurrence of alcohol abuse or lessen the incidence of DUI in society at large. We concluded no nexus had been established between the requirement that the defendant participate in a sex offender program and the charged DUI offense. Ommundson, ¶ 12.
¶26 The factual situation in this case is readily distinguishable from that in Ommundson. Early on, Flanagan himself connected the charge against him to his alcohol consumption by requesting a mental evaluation on the grounds that he has been a long-time consumer of alcoholic beverages to the extent that he has wine for breakfast, and that he needed to determine whether he was capable of acting knowingly due to the ingestion of alcohol. The presentence investigation report notes Flanagan admitted that, except for intermittent periods of abstinence, he usually consumes up to six drinks per day.
¶27 At Flanagan’s request prior to entry of his guilty plea, the District Court appointed Veraldi, a clinical psychologist, to report on Flanagan’s mental condition, including whether he was incapable of acting knowingly due to ingestion of alcohol or drugs. Veraldi’s report confirms that Flanagan lacks judgment to monitor and regulate his behavior and has difficulty controlling his impulses. At Flanagan’s further request, he also was examined by North, a sex offender therapist. North’s psychosexual evaluation recommends that Flanagan be prohibited from consuming alcohol and entering establishments where alcohol is the primary item for sale.
¶28 We conclude a sufficient rational connection exists between Flanagan’s offense and his chronic alcohol consumption to justify the three alcohol-related conditions imposed on him. Therefore, we hold the District Court did not abuse its discretion in imposing the alcohol-related conditions of probation.
¶29 4. Did the District Court err in imposing restitution as a condition of Flanagan’s suspended sentence?
¶30 Flanagan correctly points out that in State v. Horton, 2001 MT 100, ¶ 28, n.3, 305 Mont. 242, ¶ 28, n.3, 25 P.3d 886, ¶ 28, n.3, we stated, “under the version of [§ 46-18-201, MCA] effective October 1, 1999, a district court can only require restitution in cases involving deferred imposition of sentence and not in cases involving suspended execution of sentence.” Flanagan claims the statute under which he was sentenced is identical to the statute addressed in Horton and, therefore, restitution cannot be imposed as a condition of his suspended sentence. He is incorrect.
¶31 A district court is required to sentence a criminal defendant under the law in effect when the defendant committed the crime. State v. Brister, 2002 MT 13, ¶ 26, 308 Mont. 154, ¶ 26, 41 P.3d 314, ¶ 26 (citation omitted). Flanagan committed felony sexual assault in July of 1998. As a result, § 46-18-201, MCA (1997)-rather than the 1999 version of the statute addressed in Horton-applies to Flanagan’s sentence.
¶32 Under § 46-18-201(l)(b) and (2), MCA (1997), a sentencing court may suspend execution of sentence and, “[i]n addition, ... if the court finds that the victim of the offense has sustained a pecuniary loss, the court shall require payment of full restitution[.]” Thus, the statute in effect at the time of Flanagan’s offense expressly authorized the District Court to order Flanagan to pay restitution to the victim of his sexual assault as a condition of his suspended sentence.
¶33 We hold, therefore, that the District Court did not err in imposing restitution as a condition of Flanagan’s suspended sentence.
¶34 5. Does the presentence investigation report provide an adequate basis for the determination of-and did the District Court err in imposing restitution without specifying-the timing of Flanagan’s restitution payments?
¶35 Several Montana statutes govern restitution. Section 46-18-241, MCA, provides that a sentencing court must require an offender to make full restitution to any victim of the offense who has sustained pecuniary loss. Section 46-18-242, MCA (1997), provides that, if the court believes the victim has sustained pecuniary loss, the court shall order that the presentence investigation report include documentation of both the offender’s financial resources and future ability to pay restitution and the victim’s pecuniary loss. Section 46-18-244, MCA (1997), provides that the court shall specify the amount, method and time of each payment to the victim and may permit payment in installments.
¶36 Here, the District Court ordered that Flanagan “shall be responsible for all offense related medical and counseling costs, after payment by the victim’s family insurance, incurred by the victim amounting to $4,945.31 and for all future costs for the next two years ... [and] payments are to be made to the Clerk of Court, Musselshell County.” Flanagan challenges this restitution provision on several grounds, which we address in turn.
¶37 First, Flanagan contends the presentence investigation report prepared in this case does not include the documentary evidence regarding restitution required by § 46-18-242, MCA (1997), and State v. Pritchett, 2000 MT 261, 302 Mont. 1, 11 P.3d 539. He is partially correct. .
¶38 In Pritchett, the presentence investigation report contained only conclusory statements about amounts of pecuniary loss and no documentation regarding the defendant’s future ability to pay restitution, but the trial court held an evidentiary hearing. The defendant appealed the sentencing order requiring him to pay restitution. We determined that, notwithstanding the court’s receipt of evidence at the hearing on all items addressed in § 46-18-242, MCA (1997), the lack of documentation of those amounts in the presentence investigation report rendered the judgment illegal under § 46-18-242(l)(a), MCA (1997), absent a plea agreement allowing the district court to determine the amount of restitution. Pritchett, ¶¶ 11-13 (citations omitted).
¶39 In the present case, Flanagan is correct that no separate documents pertaining to his financial situation and the victim’s loss are attached to the presentence investigation report. However, § 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 a hospital 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.
¶40 Flanagan correctly points out, however, that the presentence investigation report neither documents his monthly expenses nor addresses his future ability to pay restitution. Documentation of a defendant’s future ability to pay restitution, which necessarily includes information regarding monthly expenses, must be included in the presentence investigation report. See § 46-18-242(l)(a), MCA (1997). ¶41 Flanagan next points out that the District Court did not meet the § 46-18-244, MCA (1997), requirement that “[t]he court shall specify the amount, method, and time of each payment to the victim and may permit payment in installments.” The State of Montana claims Flanagan is raising this issue for the first time on appeal. In that regard, the District Court hearing transcript reveals that Flanagan objected on grounds that the presentence investigation report must document his “ability to pay and future ability to pay.”
¶42 The presentence investigation report lists Flanagan’s monthly income as $629. He testified that his monthly expenses were $150 per month for Medicaid supplemental insurance, $200 for medication and $210 for sex offender treatment. Where Flanagan’s disposable income in excess of obligations appears to be less than $70 per month-and assuming his expenses were documented in the presentence investigation report as required by § 46-18-242(l)(a), MCA (1997)-we conclude that his ability to pay and the time of payments are inextricably intertwined. Consequently, we will address his argument.
¶43 The State asserts that as long as the total amount of restitution has been determined, the court may delegate to the probation officer the task of developing a restitution payment schedule which takes into account a defendant’s changing financial situation. The State is incorrect.
¶44 In Pritchett, ¶ 16, we determined that, by leaving the determination of the amount, method, and time of payment to the discretion of the probation officer, the district court failed to comply with the sentencing requirements in § 46-18-244, MCA (1997). Section 46-18-244(1), MCA (1997), provides that “[t]he court shall specify the amount, method, and time of each payment to the victim and may permit payment in installments.” Here, while the District Court provided for the method of payment by directing that payments be made to the Clerk of the District Court, it made no provision for the time of restitution payment or whether payments could be made in installments.
¶45 The State also suggests that nothing in § 46-18-244, MCA (1997), prohibits the sentencing court from delegating to the probation officer the task of developing a restitution payment schedule. This suggestion appears to ask that we simply ignore Pritchett. We will not do so, and the State does so at its peril.
¶46 We conclude that the District Court’s restitution provision is illegal per Pritchett, ¶ 16, because the presentence investigation report neither documents Flanagan’s monthly expenses nor addresses his future ability to pay restitution, and the District Court failed to address ability to pay. In addition, the District Court made no provision for the time of restitution payments. Consequently, we remand for addition to the presentence investigation report of documentation of Flanagan’s monthly expenses and future ability to pay restitution, and to allow the District Court to hold a hearing and enter a sentence and judgment addressing Flanagan’s ability to pay and the time of Flanagan’s restitution payments.
¶47 6. Did the District Court err in ordering that all of Flanagan’s assets in the marital estate and probate estate after his death be used to pay restitution?
¶48 The District Court ordered, as a condition of Flanagan’s suspended sentence, that “[a]ny of the Defendant’s assets of the marital estate and probate estate after death shall be used to pay for restitution expenses.” Flanagan asserts error, contending the District Court did not give him notice and opportunity to be heard regarding the forfeiture and sale of his assets as required pursuant to § 46-18-244(3)(a), MCA (1997).
¶49 Although Flanagan did not object on this basis in the District Court, we will review a sentence for illegality even if no objection is made at the time of sentencing. See Brister, ¶ 16, (citation omitted).
¶50 The District Court’s order is, at best, unclear both procedurally and legally with regard to its marital and probate estate condition. If the court is proceeding under § 46-18-244(3)(a), MCA (1997), it is undisputed that Flanagan did not receive the required notice and opportunity to be heard and, indeed, no forfeiture and sale were ordered. With regard to the portion of the sentencing order which requires that any of Flanagan’s assets of the marital estate be used for restitution, the District Court did not evaluate what assets are necessary for Flanagan to sustain a living; nor did it evaluate whether a joint tenancy in a family home could be lawfully severed in order to satisfy a restitution order. Moreover, in an ordinary probate proceeding, a creditor of the estate may submit a claim pursuant to § 72-3-804, MCA. We are aware of no authority for a claim for restitution to take precedence over the claims of other creditors of an estate.
¶51 On remand, the District Court is directed to reconsider and clarify this condition in conjunction with our remand on issue five.
¶52 Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
JUSTICES NELSON, LEAPHART, COTTER, REGNIER and RICE concur.
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JUSTICE REGNIER
delivered the opinion of the Court.
¶1 On November 29,1991, Carl Weissman & Sons, Inc. (CWS), filed suit in the Eighth Judicial District Court, Cascade County, against D&L Thomas Equipment Corporation (D&L) to collect delinquent lease payments owed to it under an equipment rental agreement. D&L appeals from the findings of fact, conclusions of law, and order, and the amended judgment entered by the District Court after a bench trial. We affirm.
¶2 The following issues are on appeal:
¶3 1. Did the District Court err in concluding there was sufficient consideration in the contract between the parties?
¶4 2. Did the District Court err in concluding that the Agreement was not mutually canceled and rescinded by the parties?
¶5 3. Did the District Court err in concluding that CWS did not violate § 70-8-101, MCA (1989)?
¶6 4. Did the District Court err in concluding that CWS had not misrepresented the condition of the drill?
¶7 5. Did the District Court abuse its discretion in excluding certain testimony regarding D&L’s failure to make a lease payment to CWS?
¶8 6. Did the District Court err in granting sanctions to the plaintiff?
FACTUAL AND PROCEDURAL BACKGROUND
¶9 In February 1990, D&L initiated discussions with CWS over the proposed leasing of an Atlas-Copco Roc 712 rock drill. At the time, both D&L and CWS were distributors of Atlas-Copco drilling and mining equipment. The negotiations were conducted by Robert Cozad, branch manager of D&L in Tucson, Arizona, and James Richey, the CWS branch manger in Bozeman, Montana.
¶10 D&L had three rock drilling machines in Tucson, but all were leased out and it needed an additional machine to lease to one of its customers, namely the Ashton Company. A written agreement was entered into between Richey of CWS and Cozad of D&L to lease the rock drill for three months, beginning March 1,1990, and ending May 31,1990. Payments were $7600 per month. The first payment was to be paid in advance and payments were to be made thereafter on the second of April and on the second of May.
¶ 11 Cozad asserts that when he discussed the drill with Richey before it was shipped to Tucson, Richey represented that the drill was “like new” and had “very few hours on it.” Richey testified that the drill had been purchased new by CWS four months before March 1, 1990. CWS asserts that it did a service and maintenance check on the drill prior to shipping.
¶ 12 The drill was shipped from Bozeman on March 1,1990, and arrived in Tucson on March 3,1990. Cozad inspected the drill and sent it on to Mammoth, Arizona, for the Ashton job. D&L asserts that it began having problems with the drill immediately upon arrival.
¶ 13 Critical to the written agreement between the parties is Paragraph 7. This paragraph required D&L to inspect the drill within ten days of receipt and unless within such time period D&L gave notice to CWS specifying any defects, the drill would be conclusively presumed to have been accepted by D&L in its then condition. The agreement further provides, at Paragraph 26, that all notices must be in writing and served by certified mail. Since the drill was received by D&L on March 3,1990, Paragraph 7 would require that written notice of any defects should have been given to CWS prior to March 14,1990. There are no allegations that D&L notified CWS in writing of any defects or problems with the drill prior to March 14,1990. Paragraph 7 also provides that following the ten-day period, the lessee shall bear the expense of any necessary repairs, maintenance, and replacements for the drill. By D&L’s own evidence, any repairs made by D&L were made subsequent to the ten-day inspection period.
¶14 Cozad testified that he could not recall the exact dates that he contacted Richey concerning problems with the drill. However, his telephone records establish several calls to Richey between March 5, 1990, and March 22, 1990. Richey recalled the telephone calls, but contends they pertained to matters unrelated to the drill. More importantly, Richey testified that the first time he was told by Cozad that there were any problems with the drill was on March 22,1990. He stated that Cozad telephoned him and that he then sent a fax to Cozad telling him not to return the drill because it might be diverted to another location. D&L alleges that Richey could not have sent the fax in response to the telephone call of March 22,1990, because D&L’s telephone records establish that the fax was sent before the telephone call. There is nothing in the record that clearly established that D&L gave notice of any problems with the drill any earlier than March 22,1990.
¶15 The parties hotly dispute the impact of Richey’s March 22,1990, fax. Cozad testified that he interpreted the fax as a cancellation of the written agreement. Richey alleges that he did not regard his fax of March 22, 1990, as canceling the agreement.
¶16 In May 1990, while D&L still possessed the drill, CWS and Cozad began negotiations for a new six-month lease for the drill. Although CWS had not received any of the payments due under the March 1 agreement, CWS was willing to consider a new agreement as long as it included a firm commitment by D&L to buy the drill. However, the negotiations broke down and CWS demanded the return of the drill. Subsequently, D&L paid for its use of the drill during the month of June, but has never paid for any rent for the months of March, April, and May.
¶17 During these negotiations, D&L subleased the drill to Spirit Drilling Co. in California. Spirit reported no problems with the drill and it was returned to CWS at the end of June.
¶18 On November 29,1991, CWS filed suit in the Eighth Judicial District Court, Cascade County, against D&L to collect the delinquent lease payments owed under the March 1,1990, Agreement. Curiously, on January 21, 1992, D&L filed an answer denying any knowledge of the Agreement. D&L claimed that the first time it saw the Agreement was when it was served with the complaint and further maintained that the purported signature on the document was made by someone without authority to bind D&L.
¶19 Until November 1993, D&L continued to deny, both in its pleadings and in its responses to written discovery requests, any knowledge of the Agreement. However, faced with CWS’s motion for summary judgment, D&L finally admitted full knowledge of the Agreement, admitted that its agent had authority to execute the Agreement on D&L’s behalf and moved to amend its answer. On February 24,1994, the District Court allowed D&L to file an amended answer. On that day, D&L filed an amended answer and counterclaim.
¶20 On November 19,1993, CWS moved for sanctions, arguing that D&L had attempted to mislead, delay, and hinder the prosecution of CWS’s complaint. On December 5,1994, the District Court awarded CWS $4,904.25 for attorney fees and $2,500 as sanctions for D&L’s initial answer to the complaint and interrogatory answers that denied the Agreement and Cozad’s authority to sign the lease for D&L. The Court notes that the original answer was filed and the responses to discovery were served before D&L retained its current counsel, Robert J. Emmons.
¶21 The case proceeded to a bench trial on March 18,1996. On April 25,1996, the District Court filed its findings of fact, conclusions of law, and order, entering judgment in favor of CWS in the amount of $56,577.54. Thereafter, D&L filed several post-trial motions concerning the interest rate to be used in calculating the delinquency charge included in the judgment award. The parties stipulated to the entry of an amended judgment in the amount of $48,312.54. This amended judgment was filed on August 13,1997.
¶22 On September 2,1997, D&L filed its notice of appeal from the amended judgment.
ISSUE 1
¶23 Did the District Court err in concluding there was sufficient consideration in the contract between the parties?
¶24 D&L argues failure of consideration results in an invalid contract. D&L asserts that CWS’s consideration amounted to a drill that was operative only five hours after it was placed in operation on the Ashton job. D&L alleges that there was failure of consideration on CWS’s part because the drill malfunctioned and overheated. Therefore, D&L argues that CWS’s failure of consideration renders the contract unenforceable.
¶25 The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.
¶26 A basic principle of contract law, of course, is that there must be consideration in order to have a valid contract. Section 28-2-102(4), MCA; Boise Cascade Corp. v. First Security Bank of Anaconda (1979), 183 Mont. 378, 391, 600 P.2d 173, 181. The equipment rental agreement of March 1, 1990, creates a presumption of consideration between D&L and CWS. See § 28-2-804, MCA. Under § 28-2-805, MCA, D&L bears the burden of proof in seeking to invalidate the agreement for failure of consideration.
¶27 The District Court concluded that D&L did not meet its burden at trial. We agree. Under the agreement, D&L agreed to lease a rock drill from CWS for three months beginning March 1,1990, and ending May 31,1990. Moreover, under Paragraph 7 of the Agreement, D&L is conclusively presumed to have accepted the drill in its condition upon receipt if D&L did not give CWS notice of any defects within ten days of receipt. Paragraph 7 states:
Repairs. Lessor shall not be obligated to make any repairs or replacements and Lessee shall not incur for Lessor’s account or liability any expense therefor without Lessor’s prior written consent. Lessee shall inspect the equipment within ten (10) days after its receipt: unless within said time Lessee notified Lessor, stating the details of any defects. Lessee shall be conclusively presumed to have accepted the equipment in its then condition. Thereafter Lessee shall effect and bear the expense of all necessary repairs, maintenance and replacements, using only genuine parts of the manufacturer of the leased equipment, and Lessee assumes all risk of injury or loss to the equipment during the term of this lease or any extension thereof, however caused. Lessee agrees to service equipment in accordance with good operating practice and to protect the same from the weather.
¶28 On appeal, D&L does not argue that it gave CWS proper notice of any problems with the drill in the time period provided under Paragraph 7. In fact, in its brief, D&L states “D&L never gave CWS written notice of any defects in the drill within ten days from March 3, 1990, when the drill was delivered.” Instead, D&L contends that it verbally notified CWS of problems with the drill. CWS disputes these contentions.
¶29 Under Paragraph 7 of the Agreement, D&L is presumed to have accepted the drill in its condition upon receipt if D&L did not give CWS notice within ten days of receipt. The District Court found that D&L did not notify CWS about any problem with the drill within ten days of receipt. Therefore, this Court cannot conclude that the contract fails for lack of consideration.
ISSUE 2
¶30 Did the District Court err in concluding that the Agreement was not mutually canceled and rescinded by the parties?
¶31 D&L argues that the parties canceled and rescinded the Agreement because the drill was inoperative due to overheating. D&L’s argument for rescission is based on a fax sent by Richey to Cozad dated March 22,. 1990. The fax states in relevant part:
Bob, Please do not send our ROC 712 back until we advise. We are now in discussions with Atlas Copco. The machine may be diverted to another location. Sorry the machine didn’t work out.
¶32 The District Court concluded that this fax could not be interpreted as indicating that the Agreement between the parties was indeed canceled. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County, 271 Mont. at 469, 898 P.2d at 686.
¶33 Rescission of a contract can be undertaken only under certain circumstances. Section 28-2-1711, MCA, states that “[a] party to a contract may rescind the same in the following cases only:... (5) if all the other parties consent.” Moreover, mutual cancellation “must be clearly expressed and shown, and acts and conduct of the parties to be sufficient must be clear, convincing and inconsistent with the existence of the contract.” West River Equipment Co. v. Holzworth Construction Co. (1959), 134 Mont. 582, 587, 335 P.2d 298, 301-02.
¶34 We agree with the District Court that the fax and the actions of both D&L and CWS do not amount to a clear expression of the intent necessary to establish rescission. In fact, a seven page fax sent by Abe Moreno (Cozad’s replacement in Arizona) indicated that he “will make every effort to get Carl Weissman & Sons their entitled monies.” We conclude that the District Court did not err in determining that the March 1,1990, Agreement was mutually rescinded.
ISSUE 3
¶35 Did the District Court err by concluding that CWS did not violate § 70-8-101, MCA (1989)?
¶36 D&L argues that the District Court erred by failing to conclude that CWS violated § 70-8-101, MCA (1989), because the drill was de livered in a condition not fit for the purpose for which it was intended. Section 70-8-101, MCA (1989), provided:
One who lets personal property must deliver it to the hirer, secure his quiet enj oyment thereof against all lawful claimants, put it into a condition fit for the purpose for which he lets it, and repair all deteriorations thereof not occasioned by the fault of the hirer and not the natural result of its use.
¶37 CWS counters by arguing that in order for it to have violated the statute, the District Court first had to find that the drill was not in a condition fit for the purpose for which it was intended. CWS contends that the drill left Bozeman in a like-new condition. Moreover, CWS argues that under Paragraph 7 of the Agreement, D&L was required to inspect the drill and provide written notice of any defects within ten days of delivery.
¶38 The District Court concluded that since D&L did not object to the condition of the drill pursuant to the terms of Paragraph 7 of the Agreement, D&L is presumed to have accepted the drill in its condition upon receipt. As noted above, this Court reviews a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County, 271 Mont. at 469, 898 P.2d at 686.
¶39 We conclude that the District Court was correct in holding that D&L’s § 70-8-101, MCA (1989), claim was without merit. As discussed above, the Agreement between the parties is a valid contract. Under Paragraph 16 of the Agreement, the parties waived all warranties. Therefore, D&L waived any benefits provided by § 70-8-101, MCA (1989). Furthermore, by not objecting to the drill’s condition pursuant to Paragraph 7 of the Agreement, D&L is presumed to have accepted the drill in a condition fit for the purpose which D&L intended.
ISSUE 4
¶40 Did the District Court err in concluding that CWS had not misrepresented the condition of the drill?
¶41 D&L argues that CWS negligently misrepresented the condition of the drill which was a breach of the agreement. D&L alleges that Richey told Cozad that the drill was in like-new condition before delivering it. However, because the drill became inoperative due to overheating soon after delivery, D&L argues that there was a negligent misrepresentation about the condition of the drill which was breach of the agreement.
¶42 As discussed above, Paragraph 7 of the Agreement required D&L to give notice of any defects with the drill within ten days of re ceipt. If D&L did not give CWS notice, D&L is presumed to have accepted the drill in its condition.
¶43 The District Court found there was no evidence that D&L gave any notice to CWS about any defects with the drill within ten days of receipt. Furthermore, the court stated that even if CWS had misrepresented the condition of the drill, pursuant to Paragraph 7 of the Agreement, D&L was required to assess the condition of the drill upon receipt and not rely upon previous representations by CWS. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County, 271 Mont. at 469, 898 P.2d at 686.
¶44 We conclude that the District Court did not err in concluding that CWS did not breach the Agreement by misrepresenting the condition of the drill. Under Paragraph 7 of the Agreement, D&L should have given notice to CWS within ten days if there were any problems with the drill, including if the drill was not in the condition D&L expected during negotiations.
ISSUE 5
¶45 Did the District Court abuse its discretion in excluding certain testimony regarding D&L’s failure to make a lease payment to CWS?
¶46 We review evidentiary rulings by the district court to determine whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380. The district court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of abuse of discretion, the trial court’s determination will not be overturned. Passama, 261 Mont. at 341, 863 P.2d at 380.
¶47 At trial, D&L offered testimony by David Thomas to establish the reason why D&L did not pay CWS. Thomas testified that he did not pay because Bob Cozad told him that the drill did not work. CWS objected to this testimony as hearsay because it believed D&L offered the statement as proof the drill failed to operate properly. The District Court sustained CWS’s objections and ordered the testimony to be stricken from the record.
¶48 On appeal, D&L argues, as it did at trial, that the testimony was offered to show “the frame of mind of the witness as to why payment wasn’t paid.” D&L contends that the testimony was not offered as evidence to establish the drill did not work. Instead, D&L asserts the testimony was submitted to show why Thomas did not make any of the lease payments.
¶49 CWS responds that Thomas’s testimony was hearsay and should have been excluded. However, CWS states that if the District Court erred in striking this testimony, the error was not prejudicial but was harmless.
¶50 We agree with D&L that the testimony of Thomas was not hearsay under Rule 801(c), M.R.Evid., and “offered in evidence to prove the truth of the matter asserted.” However, we determine that the error was harmless. In its brief, D&L states that this “error is not critical to overturn the judgment.” D&L further states that the excluded evidence was not important because “[ejvidence that the drill did not work was established by Cozad’s own testimony.”
¶51 We have previously held that when a party offers evidence that is improperly excluded by a district court in one circumstance and then offered by the same party and properly admitted by the court in another circumstance, no prejudice would result from the exclusion of the evidence that was ultimately admitted. See Niemen v. Howell (1988), 234 Mont. 471, 764 P.2d 854. In this case, D&L was able to submit evidence regarding the problems with the drill through Cozad. Therefore, we conclude that the substantial rights of D&L were not adversely affected by the District Court striking Thomas’s testimony from the record.
ISSUE 6
¶52 Did the District Court err in granting sanctions to the plaintiff?
¶53 We review a district court’s conclusions regarding Rule 11, M.R.Civ.P, sanctions for abuse of discretion. Wise v. Sebena (1991), 248 Mont. 32, 38, 808 P.2d 494, 498. Our standard of review of sanctions imposed under Rule 37, M.R.Civ.P., is whether the district court abused its discretion. First Bank (N.A.) — Billings v. Heidema (1986), 219 Mont. 373, 375, 711 P.2d 1384, 1386.
¶54 D&L asks this Court to vacate the award of $7,404.25 in sanctions and attorney fees to CWS by the District Court if we conclude that there was a failure of consideration and the parties mutually canceled and rescinded the March 1,1990, lease. As discussed above, the lease is a valid enforceable agreement between CWS and D&L and does not fail for a lack of consideration. Under the circumstances, the award of sanctions was not an abuse of discretion.
¶55 Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT and LEAPHART concur. 1
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JUSTICE COTTER
delivered the Opinion of the Court.
¶1 JoAnn Holtz (JoAnn), longtime companion of the decedent, Michael Deisz (Michael), challenges the findings of fact, conclusions of law, and judgment of the District Court regarding the disposition of the decedent’s estate. We reverse.
ISSUES
¶2 JoAnn raises three issues on appeal. We conclude that our resolution of the following issues is determinative:
1. Did the deceased’s holographic will make a general, demonstrative, or specific devise to the petitioner?
2. If the devise was specific, was it rendered ineffective-adeemed-when the specific assets were sold and the proceeds placed in the bank?
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Michael Deisz, a jeweler and city councilman from Billings, Montana, suffered a debilitating stroke while on vacation in California on May 30, 2000. After remaining hospitalized in California for approximately one month, Michael was returned to Billings. There, he lay incapacitated in a nursing home until his death on November 18, 2000 at age 44. He was survived by his companion, JoAnn, his father, a sister, and two brothers.
¶4 A few days prior to his trip to California, Michael left a sealed envelope addressed to “Dad” in his room in the home he shared with JoAnn Holtz, petitioner. This was consistent with his practice of leaving such sealed envelopes with his father before he left town for extended periods. The previous letters were never opened; Michael always retrieved them upon his safe return. It was understood, though, that they contained confidential information, including combinations to his safe, alarm codes, and instructions concerning the disposition of his property.
¶5 After Michael’s stroke, the envelope was retrieved and delivered to his father, Francis Deisz (Francis). Inside was a handwritten letter. The letter, dated 5/27/2000, reads as follows:
Dear Dad,
If something happens you will get $20,000 city life policy please bury me by mom. Please give JoAnn all but $5,000.00 in safe. That will pay rent/bill for 2-3 months so you/her can close down business. If she wants business let her have it! You are welcome to take a ring and watch for yourself. Let Becky pick one ring, also Cathy, and, Amber. If they want earrings/necklace too that’s ok! Let JoAnn choose any 2 of my rings, if you want or Dan/Don want one of my rings ok, after JoAnn chooses.
Call George & show him this as my will - I want JoAnn to have my house also (1742 Cheryl St.)
Thanks,
[signed] Michael P. Deisz
P.S. New York Life Policy goes to JoAnn/Rebecca as predetermined on policy! JoAnn will give you another envelope! (Emphasis in the original.)
¶6 Francis submitted an application for informal probate and appointment as personal representative of the estate on December 6, 2000. Based on the existence of the letter above, then assumed to be a holographic will, the application initially referenced the matter as a testate estate. Three weeks later, however, Francis amended the filing as an intestate estate, on the grounds that the holographic will was invalid under Montana law.
¶7 The District Court promptly issued an order of informal appointment of personal representative, declaring the holographic will invalid and naming Francis Deisz personal representative in intestacy of the estate. JoAnn filed a petition for formal probate in April 2001. She sought to have the will declared valid, the estate made testate, and the wishes of Michael followed in distributing his estate.
¶8 After a trial, held on February 1, 2002, the District Court determined that the letter was a valid holographic will, and that it created a specific devise of both Michael’s home and business to JoAnn. The court then concluded that those devises were adeemed, based on the sale of the specific assets to pay for Michael’s nursing home care. By virtue of this ruling, JoAnn would have been entitled to nothing from Michael’s estate beyond the $50,000 in life insurance she had already collected. JoAnn appeals.
¶9 The relationship between JoAnn and Michael was well-documented in the record. They met at a karaoke bar in the summer of 1991. By St. Patrick’s Day of 1992, the two slowly began dating. From that point forward, they celebrated St. Patrick’s Day as their anniversary. Less than a year after they began dating, Michael moved in to JoAnn’s home. Michael lived with JoAnn until the occurrence of his stroke. His house was left unoccupied in the intervening years.
¶10 According to JoAnn and friends of the couple, after many years together, JoAnn and Michael talked about marriage. JoAnn had five children with a range of problems. She and Michael apparently felt strongly that they should not marry until the youngest child reached 18, so that Michael would not become responsible for the children if anything happened to JoAnn. It is clear from the record that neither JoAnn nor Michael had a particularly good relationship with her children. Prior to surgery in 1999, JoAnn scribbled the following note to her children on the back of a hospital form:
Kids, Do not give Michael a hard time if I do die. He’s here with me you weren’t! Its [sic] all in his name for practical reasons. You’ll get stuff from him your personal toys clothes & whatever you want & he chooses to give you. Be grateful for what you get & shut up! You didn’t buy it for me give it to me or earn it! Love Mom JoAnn Holtz
¶ 11 The Deisz family asserts that despite their living situation, shared vacations, etc., JoAnn and Michael were only friends. They insist Michael never had any plans to marry JoAnn; however, close friends of the couple testified to the contrary. Submitted into evidence were photographs of JoAnn and Michael together, looking very much like a couple, and romantic cards Michael gave JoAnn. The text of one such card says: “Everything that makes love special... we share in the most wonderful way. Happy Anniversary With All My Love.” The card is hand signed “Michael.” The text of a second card reads:
The Meaning of Love
SOMEONE who makes you feel good about living, who brings out the you who is joyful and giving - This is the Meaning of Love.
SOMETHING that gives you a chance to be strong, or trust in another to help you along - This is the Meaning of Love.
SOMEWHERE that you feel like you’ve been forever - a place where you’re growing and learning together - This is the Meaning of Love.
With you, I’ve found someone who accepts me as I am, yet helps me to become a better, more fulfilled person ...
With you, I’ve found something that allows me to be strong, yet gives me comfort and support whenever I need it ...
With you, I’ve found the somewhere that makes me feel sheltered and secure, yet free to grow and develop on my own ...
With you, I’ve found what it seems I had been looking for forever - the beautiful, and very real, meaning of love!
Happy Birthday, Sweetheart
At the conclusion of the text, are the handwritten words “Please present for 1 dinner your choice, & $100 @ my store Love Michael.”
¶12 Friends of the couple also testified that Michael had, on several occasions, expressed concern about JoAnn’s future if anything happened to him. According to those witnesses, Michael asserted that she “would be well taken care of.” They said he intended to ensure that she was supported financially and not left in need.
¶13 After Michael’s stroke, there was concern that his insurance-connected to his position as a city council member-would terminate because he was no longer functioning as a city councilman. Accordingly, the family decided-with JoAnn’s consent-to sell his business and his home. The intention was that the proceeds would pay for the full-time care Michael would continue to require after the insurance ran out. There was also testimony that Michael agreed, through communicative blinking, to the sale of these assets to provide for his care.
¶14 As it happened, Michael’s insurance covered all his care prior to his death. The money from the sale of the business and house was never used for this purpose. Rather, it has been sitting in a bank account since the assets were liquidated. In addition to those proceeds, Michael’s father also sold items not specifically mentioned in the will, including Michael’s car and some furniture. After the payment of various medical and funeral expenses, there is now between $69,000 and $70,000 in the estate’s checking and savings accounts, awaiting the outcome of this appeal.
STANDARD OF REVIEW
¶15 The standard of review of a district court’s findings of fact is whether they are clearly erroneous. In re Estate of Charles Kuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, ¶ 14, 15 P.3d 931, ¶ 14 (citing Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906). A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Kuralt, ¶ 14 (citingNorwood v. Service Distrib., Inc., 2000 MT 4, ¶ 21, 297 Mont. 473, ¶ 21, 994 P.2d 25, ¶ 21). It is within the province of the trier of fact to weigh conflicting evidence, and a reviewing court will not substitute its own judgment for that of the factfinder on such matters. In re Estate of Brooks (1996), 279 Mont. 516, 526, 927 P.2d 1024, 1030. We review a district court’s conclusions of law de novo, to determine whether the court’s interpretation of law is correct. Kuralt, ¶ 14 (citing Carbon County v. Union Reserve Coal Co. (1995) 271 Mont. 459, 469, 898 P.2d 680, 686).
DISCUSSION
¶16 We are mindful that finding clear error in the factual determinations of a district court requires overcoming presumptions favoring the district court’s judgment on factual questions. That said, we are constrained to conclude that the District Court made clearly erroneous findings in this case. In some instances, it entered factual findings despite a lack of substantial credible evidence to support them (when, instead, the substantial credible evidence supported a contrary finding); in others, the court misapprehended the effect of evidence, construing as relevant facts that should have had no bearing on the outcome of the case. We are therefore left with the firm conviction that a mistake has been made in the outcome of this case.
¶17 Finding 19, for example, is not supported by substantial credible evidence. The court wrote: “Michael treated Petitioner Holtz kindly and generously, but without any indication that their relationship was other than ‘friends.’ ” As noted above, the record provides ample evidence of a romantic relationship. Given that the District Court did not dispute the validity of the greeting cards admitted into evidence and cited above, we are at a loss to explain how the court could interpret those cards as evidence of anything but a romantic relationship.
¶18 In finding 23, the court asserts “no values were stated for proceeds from the house sale or proceeds from the sale of the business assets.” This finding is clearly in error. Francis Deisz testified that all the money from the sale of Michael’s assets was in the bank, save a small portion he used to pay expenses. Michael’s only significant assets were his house and his business. His father estimated the current total in the savings and checking accounts at between $71,000 and $73,000. In addition to the proceeds from the liquidation of the jewelry business and Michael’s home, Francis deposited the following into the bank account: $2,800 from the sale of the car, between $200 and $600 from the sale of the washer and dryer and some furniture, a $4600 tax refund, and approximately five monthly payments of $450. Given this testimony, simple subtraction is all that is required to approximate the proceeds from the sale of the house and the business. Our calculations put that estimate at between $60,750 and $63,150. However, our estimate based on the trial testimony is likely not even necessary: Francis kept meticulous track of the money. A checkbook he maintained, which tracks all expenditures and deposits after Michael became incapacitated, was admitted into evidence. Further, in response to a question about the sale of the house in JoAnn’s interrogatory, Francis referred JoAnn to the “closing documents from the sale of said residence.” It appears the court ignored these significant portions of the record when it erroneously concluded that there were no values established for proceeds from the sale of the house or the business.
¶19 Moreover, it appears the District Court was swayed by facts irrelevant to the disposition of this estate. For example, finding eight asserts that Michael had never suggested JoAnn become a co-owner of his home, his business, or his personal property. The two never signed joint deeds, filed joint tax returns, made joint payments on indebtedness, or in any other way demonstrated an intent to co-mingle personal or real property. Finding nine indicates that Michael intended to retain sole ownership of his house, business, and personal property upon his return from California. In finding 15, the court states “Michael had ample opportunity to add Ms. Holtz’ name to the deed on his residence or make her a business partner, but he had never done so, and given extrinsic evidence of his intentions regarding those properties, never intended to do so.” In findings 19 and 20, the court asserts that Michael never considered JoAnn his spouse or common law wife.
¶20 None of the above findings is remotely consequential to this case. Even assuming the District Court was correct about each element of these findings, they do not alter-in any way-the clear intent of Michael’s holographic will. The fact that Michael did not intend to name JoAnn co-owner of his business or home, and planned to retain sole ownership of his assets if he remained healthy, provides no insight whatsoever into what he might want done in the event of his death. For that insight, we obviously look to the document Michael himself called “my will.”
¶21 The District Court, in finding 16, apparently found it persuasive that after Michael was returned to Billings, “with the knowledge and consent of Petitioner Holtz, all parties agreed that Michael’s care required liquidation of his residence and business” (emphasis in original). Again, Ms. Holtz’ consent to the sale of his assets, including those granted to her in his will, does not in the least undermine her case. One would hope for such a decision from a woman who had been, for years, the caring companion of a now gravely ill man. JoAnn’s unqualified assent to the sale of assets that would otherwise go to her strengthens, rather than subverts, her claim that she and Michael enjoyed a genuine and loving relationship.
¶22 In finding 17, the court states:
After bis stroke, Michael Deisz manifested his consent to liquidate certain property, including his residence and business, to provide for his reasonable and necessary medical treatment and care. Such facts and circumstances evidence Michael Deisz’ intention to render distributions of property set forth in the letter of May 27, 2000, ineffective in the event of his death, because he did not own them.
This finding is both unsupported and illogical. First, Michael’s father testified that Michael seemed to object to the sale of his assets. We note the following exchange between Francis and his attorney on direct examination:
Q. Did you develop a means of communicating with Michael following his stroke?
A. Not down in California. He was just there. I mean he didn’t blink his eyes. There was no reaction from Mike in California. When he got here to the hospital, before he went to the nursing home at St. Vincent’s, he opened his eyes big for no and closed them for yes.
Q. Did you attempt to discuss with him or in his presence your plan to liquidate either his house or his business?
A. Yes. I told him I have to do it.
Q. Were you able to read any emotion or objection on his part?
A. At that time, he was not happy about it.
Q. At any other time, did he object or express -
A. Later on when I sold his house and I put the money in the bank and I said, “Hey, you know how much money you’ve got in the batik?” And he smiled. So I guess he approved at that time.
Michael was gravely ill, unable to walk or even speak. Assuming his gestures were accurately interpreted, the testimony above suggests that Michael actually objected to the sale of his home and business prior to those transactions. He was not given a choice in the matter. His father told him “I have to do it.” Further, even if we accept as fact that Michael ultimately did consent to the liquidation of his business and home through nods and blinks (after the fact, apparently), the court makes a giant-and legally unsupported-leap when it concludes that this consent evidences his intention to render the distributions of property set forth in his will ineffective.
¶23 As we discuss the issues below, we do so in the context of the bedrock principle of honoring the intent of the testator. Kuralt, ¶ 17 (citing, e.g. In Re Estate of Irvine (1943), 114 Mont. 577, 139 P.2d 489; In Re Estate of Van Voast (1953), 127 Mont. 450, 266 P.2d 377; In Re Estate of Ramirez (1994), 264 Mont. 33, 869 P.2d 263).
ISSUE ONE
¶24 Did the deceased’s holographic will make a general, demonstrative, or specific devise to the petitioner?
¶25 In the past, we have been called upon to determine whether a will makes a specific or general devise. We said:
As a rule, a general devise is one which, in accordance with the terms of the will, may be satisfied out of the testator’s estate generally and is not charged upon any specific property. A general devise does not attempt to dispose of any specific article of property, but may be satisfied out of the general assets of the testator’s estate... A specific devise differs from a general devise in that it is not intended by the testator to be paid out of the estate generally, but is to be paid solely by delivering to the devisee that specific article given by the will. In case of doubt as to the testator’s intention, courts have generally presumed that the testator intended to give a general devise rather than a specific one. To find a specific legacy, there must generally exist some indication of intent.
Matter of Estate of Wales (1986), 223 Mont. 515, 517, 727 P.2d 536, 537. In a footnote, we explained: “The aversion of the courts toward construing devises as specific is usually attributed to the fact that such gifts are subject to ademption in the event their subject matter is disposed of by the testator after execution of the will, a result which is regarded as imposing a hardship on the devisee.” Wales, 223 Mont. at 517, 727 P.2d at 537. That is precisely the concern in this case.
¶26 A close reading of the will reveals the following: JoAnn was to receive all but $5,000 in the safe (which was to be used for expenses). She was designated to receive Michael’s business if she wanted it, $50,000 in life insurance, and Michael’s house. Further, Michael’s father and brothers were authorized to choose one of his personal rings each only after JoAnn had chosen the two she would like. Michael’s father was designated the beneficiary of a $20,000 life insurance policy. Michael’s sister, Rebecca, was to receive $25,000 in life insurance and a single ring. Finally, Michael’s two nieces were each granted one ring.
¶27 The significance of the disposition Michael outlined for his estate is that he chose JoAnn to be the beneficiary of his major assets. His father and his sister each received much more modest sums in life insurance, and remaining family members received only one ring apiece. Based on this distribution of assets, in addition to evidence in the record indicating that Michael intended to make sure JoAnn was well taken care of in the event of his death, and the presumption in favor of finding a general devise, we conclude that the devise to JoAnn in the holographic will was a general one.
¶28 The estate argues-and the court found-that Michael’s holographic will failed to designate the entire estate, or the residue of the estate, to JoAnn. The court stated “Petitioner presented no evidence to support a claim that she was to receive the ‘remainder’ of Respondent’s estate, and such a claim is contrary to any expression of intent contained in the May 27,2000, letter.” (Emphasis added.) This finding is not supported by substantial credible evidence. Clearly, this holographic will does not adhere to all the formal conventions of a will. However, in choosing to recognize holographic wills as valid, Montana has made clear its preference to seek guidance from the intent of the testator, rather than relying on complex procedural rules when such reliance would frustrate the testator’s wishes. Section 72-2-522(2), MCA(2002), Official Comments. That preference also applies to determining whether a devise is specific or general. Wales, 223 Mont. at 517, n.2, 727 P.2d at 537, n.2.
¶29 In this case, there is ample evidence that Michael intended the bulk of his estate to go to JoAnn, with much smaller bequests to other family members. The only assets remaining in Michael’s estate (the “residue”) were a car worth $2,800, used furniture, and a used washer and dryer set. It would be counterintuitive to conclude that Michael’s failure to specifically dispose of these inexpensive items of property is evidence that he did not intend for JoAnn to have everything in his estate that was not specifically devised to another relative. If the State does not require a citizen to meticulously adhere to the formal requirements of a will, we cannot seriously expect him-in a handwritten document-to catalogue and bequeath every item he owns, from his old washer and dryer to his toaster. Michael carefully disposed of the property he owned that was of significant value, and all that property went to JoAnn. We find this, as well as the will’s language, to be persuasive evidence that the testator intended to create a general devise to JoAnn.
¶30 By definition, a general devise cannot be adeemed. We therefore reverse the District Court’s determination that Michael intended to adeem the devises to JoAnn after his stroke. Rather, we conclude that JoAnn is entitled to the proceeds remaining in the estate after all debts are settled.
¶31 Our conclusion under Issue One. is dispositive; however, even under an alternative interpretation of the devise, we reach the same result. If, as the District Court concluded, the will were construed to provide only a specific devise to JoAnn-as opposed to a general devise-application of § 72-2-616, MCA(2002), would lead to the same conclusion.
ISSUE TWO
¶32 If the devise was specific, was it rendered ineffective-adeemed-when the specific assets were sold and the proceeds placed in the bank?
¶33 Had we found a specific devise, rather than a general one, our next step would be to consult § 72-2-616, MCA (2002), titled “NonAdemption of Specific Devises.” Subsection (l)(f) reads:
A specific devisee has the right to the specifically devised property in the testator’s estate at death and (f) unless the facts and circumstances indicate that ademption of the devise was intended by the testator or ademption of the devise is consistent with the testator’s manifested plan of distribution, the value of the specifically devised property to the extent the specifically devised property is not in the testator’s estate at death and its value or its replacement is. not covered by subsections (l)(a) through (l)(e).
¶34 The District Court, in its conclusions of law, stated “The facts and circumstances of decedent’s letter of May 27, 2000, and the universal agreement to sell Michael’s house and business assets indicate that ademption was consistent with Michael’s plan of distribution.” The court goes on to add:
It also very specifically indicates ademption was not only intended by Michael, but agreed to by Holtz ... Both decedent and Petitioner knowingly consented to use the proceeds of decedent’s estate for his care with knowledge of the existence and contents of the letter of May 27, 2000.
¶35 According to the Official Comments to § 72-2-616, MCA, if specifically devised property is not in the testator’s estate at death:
subsection (a)(6) 72-2-616(1)© creates a mild presumption against ademption by extinction, imposing on the party claiming that an ademption has occurred the burden of establishing that the facts and circumstances indicate that ademption of the devise was intended by the testator or that ademption of the devise is consistent with the testator’s manifested plan of distribution.
The estate-the party asserting that ademption has occurred here-wholly failed to meet its burden of establishing any facts and circumstances that would indicate Michael intended to adeem the devise to JoAnn, or that such an ademption would be consistent with his plan of distribution. There was simply no evidence on this point at all, nor does the District Court cite any.
¶36 The court’s repeated assertions that JoAnn somehow consented to the ademption by not fighting the family’s decision to sell the assets to ensure that money was available for Michael’s care, are factually and legally unsupportable. First, as we said earlier, JoAnn’s assent to the sale of the assets was both necessary and commendable. The court’s conclusion that JoAnn’s willingness to see Michael’s estate partially depleted for his best interests signaled her intention to relinquish her share of the estate is simply not demonstrated in the record.
¶37 Moreover, as JoAnn notes, her actions and intent are completely irrelevant to the disposition of this case. It is the testator’s intent that is relevant, and there was simply no evidence to suggest that Michael intended to revoke the devise to JoAnn. Even if we assume Michael consented to the sale of his property, we have no reason to believe he did so with the intent of revoking his bequests to JoAnn. More importantly, there was no evidence to support the finding of such an intention.
¶38 The presumption against ademption was not overcome here. There was no competent evidence to the effect that Michael intended to adeem, nor did any evidence demonstrate an unwritten or unspoken manifest plan of distribution that would compel ademption. This being so, the provisions of § 72-2-616(f)(l), MCA, control. If we assume Michael’s devise to JoAnn to be specific, JoAnn has the statutory right to the value of what the court construed to be the specifically devised property: Michael’s home and his business. Thus, whether we consider the devise general or specific, the result is the same.
CONCLUSION
¶39 Accordingly, we reverse the District Court’s findings of facts and conclusions of law and remand for proceedings consistent with this Opinion. Upon remand, and pursuant to JoAnn’s request, a neutral representative should be appointed to dispose of the remainder of the estate.
JUSTICES NELSON, TRIEWEILER, REGNIER and RICE concur.
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JUSTICE TRIEWEILER
delivered the opinion of the Court.
¶1 On February 25,1996, defendant Scott Michael Abe was charged by information filed in the District Court of the Fourth Judicial District in Mineral County with deliberate homicide in violation of § 45-5-102, MCA. On August 23,1996, six months after the original information was filed, the court permitted the State to file an amended information which charged Abe with deliberate homicide by accountability. Following a trial by jury, Abe was convicted of deliberate homicide by accountability. He appeals his conviction based on pretrial and evidentiary decisions of the District Court. We affirm the judgment of the District Court.
¶2 The issues on appeal are:
¶3 1. Did the District Court err when it granted the State’s motion for leave to file an amended information?
¶4 2. Did the District Court err when it denied Abe’s motion for change of venue?
¶5 3. Did the District Court err when it denied Abe’s motion to exclude from evidence the Polar Sorel winter boots that were seized from Abe’s residence?
FACTUAL BACKGROUND
¶6 On November 28,1995, Chris Hansen called the Mineral County Sheriff’s Department at approximately 9:27 a.m. and reported that he thought his wife, Nanette Hansen, was dying or dead from being kicked by a horse. Chris Hansen and his son, Scott Michael Abe, were present with Nanette in the Hansen barnyard in DeBorgia, Montana, when the first emergency medical personnel arrived at approximately 9:30 a.m. At that time, Nanette was face up, was not breathing, was cold and pale, had no pulse, her lips were purple, and her hair was matted with mud and manure. Nanette had no jacket on, despite the cold, and her pupils were dilated; her eyes were “glazed over,” and she appeared to have been dead for some period of time.
¶7 Nanette was transported to the Mineral Community Hospital and officially pronounced dead at approximately 11:45 a.m. by the emergency room physician. Technically, however, she was dead on arrival with no signs of life. Based upon his observation and those of emergency medical personnel, the emergency room physician felt Nanette was dead by the time emergency medical personnel arrived in DeBorgia.
¶8 Chris Hansen and Nanette Hansen had been married prior to moving to Montana in 1991, divorced, and remarried in 1994. Chris Hansen was fifty-two years old and Nanette was thirty-four years old at the time of her death. The couple owned twenty acres of land in a rural setting, on which they built a house and a barn. Chris Hansen was diagnosed with multiple sclerosis in 1993 and had difficulties with his vision and balance, and could barely walk. However, witnesses testified he had previously abused Nanette.
¶9 In the past, Chris had raped Nanette at gunpoint, beat her, and, at one point, poured kerosene on her and threatened to light it. Nanette refused to leave Chris because she felt that, due to his disability, he needed her.
¶ 10 The defendant, Scott Michael Abe, twenty-nine years old at the time of Nanette’s death, had recently rejoined his father after twenty-five years with no contact. Abe visited his father on vacation in 1992 and soon thereafter moved in with Chris, Nanette, and Chris’s mother in DeBorgia. Abe later lived in a rented trailer two-to-three miles from the Hansen property, within a five-minute drive.
¶ 11 Abe was open about his dislike of his stepmother. A co-worker of Abe testified that Abe told her that he despised Nanette for interfering with his and his father’s relationship. On more than one occasion, Abe referred to Nanette in derogatory and vulgar terms and used profanity and expletives to describe her to others. In relation to Nanette, Abe told one friend that “he couldn’t take it anymore,” and he had had a “nervous breakdown.” Abe told a co-worker that he hated Nanette for controlling his father. Abe told the same friend that he was worried that if anything happened to Chris he would not get his share of the twenty acres of land.
¶12 Abe told his closest friend, Jerry Parrick, on at least three occasions, that he had offered to kill Nanette for his father. Abe explained that he would wait until Nanette came home drunk and passed out on the couch, he would hit her with a board that had a horseshoe nailed to it, and then take her down to the barnyard and make it look like a horse accident.
¶13 Mineral County Sheriff Mickey O’Brien, with the assistance of other officers, executed search warrants on December 6,1995, on the residences and vehicles of both Abe and Chris Hansen. They seized two homemade weapons (“saps”) from Abe’s car. Later, they received two additional saps made by Abe. One came from Abe’s friend, Helen Johnson. Johnson testified at trial that Abe had shown her how to use the sap on a person’s temple to incapacitate a person. On December 6, 1995, O’Brien also seized a pair of size eleven Polar Sorel winter boots from Abe’s residence, and sent them to the State Crime Lab.
¶14 State Medical Examiner Gary Dale, M.D., performed an autopsy on Nanette on November 29, 1995. Dr. Dale found multiple traumatic injuries on her head, neck, upper front, chest, back, arms, legs, and face. Dr. Dale carefully photographed these bruises and marks, and at trial distinguished them from common artifacts of emergency medical efforts. Dr. Dale testified that the bruises on Nanette’s arms and legs were consistent with grip marks. Three of Nanette’s injuries were of particular note to Dr. Dale:
¶15 1. A two-inch bruise in her left temple area extending one inch past her ear;
¶16 2. A two-inch bruise, described as a “pattern injury,” onher scalp below the previous bruise; and
¶17 3. A bruise with abrasion and laceration, also described as a “pattern injury,” on her collarbone.
¶ 18 According to Dale, none of the injures to N anette’s head were severe enough to have caused her death, and they were inconsistent with injury by a horse. Dr. Dale actually traveled to the crime scene in DeBorgia, but found nothing in the barn area consistent with the “pattern injuries.” He felt the “pattern injury” on the back of her head was most likely a footwear print made by a stomp.
¶19 Dr. Dale compared the blunt force weapons (“saps”), made by Abe, to the wound on Nanette’s temple area. He testified that any one of the saps, or one like them, could have made a similar injury. All of the bruises were made less than six hours before Nanette’s death, with the exception of an abrasion and bruise to the left of her nose and one on her knee.
¶20 Dr. Dale’s internal examination revealed the cause of death: asphyxiation by plugging of Nanette’s lung airways with mud and mud-like debris. Dr. Dale was not able to ascertain how many people inflicted Nanette’s injuries. His opinion was that Nanette was forced face down in the muddy soil and held there until she died. He felt it was possible that the blow to Nanette’s temple rendered her unconscious and that she laid in the mud and suffocated. Dr. Dale felt, based upon his findings, that the time of death was most probably about 9:30 a.m., around the time of the call to the sheriff’s office.
¶21 Forensic scientist Deborah Hewitt of the State Crime Lab is an expert in fingerprint and other impression evidence. Hewitt examined Dr. Dale’s photographs of the “pattern injury” on Nanette’s scalp and compared it to the Polar Sorel winter boots seized from Abe’s residence. Hewitt testified at trial that the scalp pattern injury was similar in element, size, and tread design to the boots seized from Abe. Like Dr. Dale, Hewitt traveled to the Hansen barnyard crime scene to see if she could find any item to explain the pattern injuries on Nanette’s body. She was unsuccessful.
¶22 The Mineral County Attorney charged Abe and Chris Hansen with deliberate homicide in a single criminal information filed on February 26, 1996. After Chris Hansen moved to disqualify Judge Harkin of Department 4, the two cases were severed and Judge McLean of Department No. 1 heard Hansen’s case, while Abe’s case remained with Judge Harkin. Each case thereafter proceeded with a separate cause number.
¶23 On August 23,1996, the State filed a motion for leave to amend Abe’s information to formally include an alternative charge of deliberate homicide by accountability. On the same date, the District Court granted the State’s motion for leave and arraigned Abe on the amended information.
¶24 Abe filed a motion to change venue on August 21,1996. The District Court denied the motion on September 19,1996.
¶25 On September 12,1996, Abe filed a motion to suppress the Polar Sorel winter boots seized at his residence on December 6,1995. The District Court denied that motion on October 10,1996.
¶26 On October 24,1996, a jury convicted Abe of deliberate homicide by accountability. He was sentenced to a term of sixty years in the Montana State Prison and given credit for time served to that date.
ISSUE 1
¶27 Did the District Court err when it granted the State’s motion for leave to file an amended information?
¶28 Whether to allow the amendment of an information is left to the discretion of the trial court. See State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163. We review discretionary trial court rulings to determine whether there has been an abuse of discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that “[t]he standard of abuse of discretion is applied to discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” (Citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603-04). An information may be amended as to substance or form pursuant to § 46-11-205, MCA:
(1) The court may allow an information to be amended in matters of substance at any time, but not less than 5 days before trial, provided that a motion is filed in a timely manner, states the nature of the proposed amendment, and is accompanied by an affidavit stating facts that show the existence of probable cause to support the charge as amended. A copy of the proposed amended information must be included with the motion to amend the information.
(2) If the court grants leave to amend the information, the defendant must be arraigned on the amended information without un reasonable delay and must be given a reasonable period of time to prepare for trial on the amended information.
(3) The court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.
(Emphasis added.)
¶29 Abe alleges that when the District Court allowed the State to amend its original motion from a charge of deliberate homicide to deliberate homicide by accountability, it effectively allowed the State to alter the charge against Abe to fit the proof. Abe cites Johnson v. United States (D.C. App. 1992), 613 A.2d 1381, for the proposition that one of the protections provided to the accused by a properly drafted information is that it “protect[s] against oppressive actions of the prosecutor or a court, which may alter the charge to fit the proof.” See Johnson, 613 A.2d at 1384. Abe maintains that the State had insufficient evidence to convict him of deliberate homicide, and that he had relied on the original information by planning an appropriate defense based on the charge of deliberate homicide. Abe argues that the District Court erred when it allowed the State six months to discover that it had incorrectly charged him and then amend the information to conform the charge to the evidence. Abe contends that the State should not have been allowed to pursue a “new” theory without an allegation of facts in the prosecutor’s supporting affidavit which differed from those alleged in support of the original information. We disagree.
¶30 One of the Montana Legislature’s purposes for enacting criminal statutes is “to give fair warning of the nature of the conduct declared to constitute an offense.” State v. Tower (1994), 267 Mont. 63, 66, 881 P.2d 1317, 1319 (citing § 45-l-102(c), MCA). Montana’s accountability statute provides that “[a] person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both.” Section 45-2-301, MCA. Section 45-2-302(3), MCA, provides, in part, that a person is legally accountable for the conduct of another when “either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.”
¶31 We have held, pursuant to § 45-l-102(c), MCA, that the theory of accountability need not be included in the information. See Tower, 267 Mont. at 67, 881 P.2d at 1320. In Tower, we held that “a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime; distinctions between what used to be referred to as the ‘principal’ and ‘accessory before the fact’ have largely been abandoned.” Tower, 267 Mont. at 67, 881 P.2d at 1320. Criminal accountability is not considered a substantive separate offense, but merely a conduit by which to find a person criminally liable for the acts of another. See Tower, 267 Mont. at 67-68, 881 P.2d at 1320.
¶32 Section 46-11-401(1), MCA, requires that a charging document give a
plain, concise, and definite statement of the offense charged, including the name of the offense, whether the offense is a misdemeanor or felony, the name of the person charged, and the time and place of the offense as definitely as can be determined. The charge must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.
In this case, the original information alleged that Abe
committ[ed] the crime of deliberate homicide, a felony, in violation of M.C.A. section 45-5-102 ... [o]n the morning of Tuesday, November 28,1995 upon land located near DeBorgia in Mineral County, Montana and known as Waterhole Tracts No. 7 and 8 ... [by] purposely or knowingly caus[ing] the death of Nanette Hansen, a human being, by asphyxiating her through suffocation.
We have held that “no other facts need be alleged in any indictment or information against... an accessory, than are required in an indictment or information against his principal.” State v. Zadick (1966), 148 Mont. 296, 300, 419 P.2d 749, 751. Pursuant to our decisions in Tower and Zadick, the original information filed by the State against Abe was sufficient to duly advise him of the nature and the cause of the accusation against him, even without referring to guilt by accountability. The amended information gave Abe more notice of the State’s theory of guilt than was required by our previous decisions. Therefore, we conclude that he was not prejudiced by the amendment, and the District Court did not abuse its discretion when it allowed the amendment.
ISSUE 2
¶33 Did the District Court err when it denied Abe’s motion for change of venue?
¶34 Abe contends that he was denied a fair trial because the court denied his motion for a change of venue despite the local publicity generated by his trial. With regard to a change of venue, we have stated:
[A]n accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.
State v. Pease (1987), 227 Mont. 424, 432, 740 P.2d 659, 664. A district court’s decision to deny a motion for change of venue is reviewed for an abuse of discretion. See Pease, 227 Mont. at 433, 740 P.2d at 664.
¶35 We have held that when prejudicial pretrial publicity is alleged, the publicity must be inflammatory and create a reasonable apprehension that a fair trial is not possible before the motion is granted. See Pease, 227 Mont. at 433, 740 P.2d at 664. A defendant seeking a change of venue on the basis of prejudicial pretrial publicity must prove two elements: (1) that the news reports were inflammatory; and (2) that the news reports actually inflamed the prejudice of the community to an extent that a reasonable possibility exists that the defendant may not receive a fair trial. See State v. Moore (1994), 268 Mont. 20, 52, 885 P.2d 457, 477, overruled on other grounds by State v. Gollehon (1995), 274 Mont. 116, 122, 906 P.2d 697, 701. Inflammatory publicity is characterized by editorializing on the part of the media, or any calculated attempt to prejudice public opinion against a defendant, or to destroy the fairness of the pool from which a defendant’s prospective jurors would be drawn. See State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 173.
¶36 Abe contends that two specific articles were particularly prejudicial: one from the Idaho News Observer (Wallace, Idaho) entitled ‘(Murder Most Foul”; and another from the Spokesman-Review (Spokane, Washington] entitled “Death Plot Laughed Off.” The remainder of the articles, all from the Missoulian (Missoula, Montana) and the Valley Press/Mineral Independent (Superior, Montana), Abe describes as non-inflammatory but cites them as evidence of wide media interest in his high profile case.
¶37 Abe maintains that the articles were particularly prejudicial due to the small number of people in the community where the murder occurred, and their close-knit relationships. According to Abe, a fair trial was not possible in Mineral County because the publication of the articles added fuel to local discussions of the case and increased the prejudice against him that was already widespread in the community.
¶38 The District Court took into consideration the following demographic information for Mineral County when it considered Abe’s motion for change of venue. As of 1995, the estimated population of Mineral County was 3626, of which approximately 70.4 percent, or 2334 people, were of voting age. Of the total population of Mineral County, only 8 percent, or 292 people, resided in and around the area known as the “West End,” where Nanette Hansen lived and was killed. It is this small portion of the jury pool that Abe claims was tainted by pretrial publicity. Ninety-two percent of the population of Mineral County, however, is not part of the community in which Nanette Hansen lived and, therefore, presumably was not involved in the local discussions Abe contends were fueled by the pretrial publicity.
¶39 Furthermore, the following circulation figures applied to the papers in question in Mineral County as a whole:
1. Spokesman-Review 19 daily papers mailed
2. Idaho News Observer 60-75 daily papers sold in stores, 10-15 mailed
3. Missoulian 641 daily papers mailed, 800 Sunday
4. Valley Press/Mineral Independent 830 weekly papers mailed Of these four papers, only the Spokesman-Review and the Idaho News Observer contained prejudicial and inflammatory publicity, according to Abe. The total circulation of these two papers was to approximately 109 households in a county of 3626 people.
¶40 On the jury panel itself, only six out of seventy-eight potential jurors knew about facts of the case, and their knowledge was from word of mouth — not the media.
¶41 We conclude that even if the publications were inflammatory, they were not wide-spread enough in the community to generate a general belief of Abe’s guilt throughout the jury pool, and that the community as a whole (Mineral County) could not have been affected to the extent that a reasonable possibility exists that Abe did not receive a fair trial.
¶42 We therefore conclude that the District Court did not err when it denied Abe’s motion for change of venue.
ISSUE 3
¶43 Did the District Court err when it denied Abe’s motion to exclude from evidence the Polar Sorel winter boots that were seized from Abe’s residence?
¶44 The standard of review for evidentiary rulings is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263; see also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.
¶45 At trial, the State Medical Examiner told the jury that Nanette Hansen had a four-inch long hemorrhage on her scalp and the mid-back of her head. He testified that this was a patterned injury consistent with being struck by something, or being pushed against something, that had a pattern. He concluded that if the injury to her head was caused by a foot, it would have been caused by a stomp.
¶46 The State’s forensic expert testified that the pattern injury on the back of Nanette’s head was similar in element, size, and tread design to the pair of Polar Sorel winter boots that were seized from Abe’s residence. The boots, therefore, played an important part in the State’s case and were material to Abe’s conviction.
¶47 Abe contends that because of a procedural error on the part of the investigating officers, the District Court erred when it did not suppress evidence of the boots.
¶48 On December 6, 1995, Mineral County Sheriff Mickey F. O’Brien executed a search warrant at Abe’s residence with the assistance of other peace officers. O’Brien took custody of the property seized and gave Abe his receipt for the property. Following the search, Montana Criminal Investigation Bureau agent Mark J. Brady produced an official report of the search in which he stated, “[a]t the completion of the searches all items of evidence seized during the searches were taken into custody by O’BRIEN.” Brady’s official report then lists ten items seized from Abe’s residence and Abe’s signature, under which is a handwritten notation that reads:
12/7/95 11. 1 pair Polar Sorrel [sic] winter boots size 11 (Boots seized during the time of search but did not account for it at the time receipt was signed.)
Agent Mark Brady
¶49 Abe contends that because he was present during the search and signed a receipt which listed only ten items, and only later an eleventh item, the receipt for the eleventh item was not properly “left” with or “give[n]” to Abe. He also contends that the receipt is improper because it contains Brady’s signature and not that of O’Brien, the officer to whom the warrant was addressed. According to Abe, both alleged errors are contrary to the requirements of § 46-5-227, MCA, which requires:
Service of a search warrant is made by exhibiting the original warrant or a duplicate original warrant at the place or to the person to be searched. The officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the search warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. Failure to leave a copy and receipt may not render the property seized inadmissible at trial.
(Emphasis added.)
¶5 0 Abe claims that because he was present during the execution of the search warrant, O’Brien was required, pursuant to the plain language of § 46-5-227, MCA, to give him a copy of the warrant and a receipt for the property seized. Although O’Brien eventually mailed the receipt for the boots to Abe, Abe argues that because mailing is not one of the options mentioned in § 46-5-227, MCA, it did not cure the original error. Because O’Brien gave Abe a receipt for only the first ten items and not for the boots, Abe maintains that O’Brien did not comply with § 46-5-227, MCA, and, therefore, the boots should have been excluded as inadmissible evidence.
¶51 Abe’s second assignment of error with regard to the corrected receipt is that the addition of the eleventh item was improperly signed by Brady and not O’Brien, the officer to whom the warrant was addressed and who executed the warrant. Abe suggests that this variation raises the question about whether law enforcement officers in fact seized the boots at the time they executed the search warrant, or whether they seized the boots in some other way at some other time and simply added them to the receipt later. Abe suggests that this would explain why Brady waited more than a month to provide Abe with a copy of the corrected receipt. Abe also questions Brady’s veracity and actions regarding the boots because, according to Abe, since then Brady had been suspended and otherwise sanctioned because of official wrongdoing.
¶52 The State maintains that the District Court did not err when it admitted the boots as evidence and found that the temporary error on the receipt for items seized did not render invalid the seizure of the boots. The State contends that the error, which was detected and corrected within twenty-four hours, did not violate Abe’s substantive Fourth Amendment rights, and that even if the literal requirements of the statute were violated, the statue, by its terms, does not permit suppression of evidence that was otherwise constitutionally seized. In addition to the instruction given in § 46-5-227, MCA, that “[fjailure to leave a copy and receipt may not render the property seized inadmissable at trial” (emphasis added), the Commission Comments to § 46-5-227, MCA, state that:
This provision provides for specific directions as to the manner in which the search is made and specifies that failure to give a receipt is not a defect which will render the evidence inadmissible. The intent of this provision is to provide for adequate notice to the possessor of the goods or premises by requiring a copy to be left with him or at the place where the articles or things are seized.
Furthermore, § 46-1-103(3), MCA, provides that “[a]ny irregularity in a proceeding specified by [the criminal procedure] title that does not affect the substantial rights of the accused must be disregarded.” Specifically, with regard to search and seizure, § 46-5-103(l)(c), MCA, provides that “[a] search and seizure, whether with or without a warrant, may not be held to be illegal if:... any irregularity in the proceedings has no effect on the substantial rights of the accused.” Because the purpose of § 46-5-227, MCA, is to ensure a defendant’s notice of what items were removed during a search, we conclude that Abe was not prejudiced when the notice of the boots, was not “given” to him until after notice of the first ten items. An error in the manner in which notice is given is an irregularity in the proceedings that does not affect the substantial rights of the accused and, therefore, is not reversible error. The corrected receipt effectively gave Abe notice of the items seized from his home, including the boots.
¶53 Neither did Brady’s signature on the corrected receipt, instead of O’Brien’s, affect Abe’s substantial rights. Nowhere in § 46-5-227, MCA, is there a requirement that the receipt be signed by the officer to whom the warrant was addressed. In fact, the statue does not specifically require that a receipt have any signature at all. Accordingly, we conclude that the District Court did not err when it denied Abe’s motion to suppress the Polar Sorel winter boots that were seized from Abe’s residence.
¶54 The judgment of the District Court is affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, NELSON and LEAPHART concur.
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JUSTICE LEAPHART
delivered the Opinion of the Court.
¶1 Appellant, William L. Brown (Brown), appeals his conviction of deliberate homicide with the use of a deadly weapon and his corresponding sentence of 110 years. We affirm.
¶2 The issues on appeal are as follows:
¶3 1. Was there sufficient evidence to sustain the conviction of deliberate homicide, as opposed to mitigated deliberate homicide?
¶4 2. Did the District Court impose an illegal sentence by punishing Brown for exercising his constitutional right to a jury trial?
Factual and Procedural Background
¶5 Phil and Misty Nebeker and their two children lived in Anaconda. Brown lived four blocks away from the Nebekers and had known Misty since elementary school. On the evening of December 18,2000, Brown telephoned Phil and asked Phil to buy beer with him. Phil left the house to buy beer with Brown while Misty stayed home and watched videos with the children. Brown and Phil later returned to the Nebekers’ house with a 20-pack and a 12-pack of beer. Misty was drinking wine coolers and Brown and Phil were drinking beer. Misty testified that Brown and Phil were drinking moderately and neither was drunk. At some point, all three went to an upstairs bedroom to smoke marijuana. Afterwards, on their way downstairs, Phil began to yell at Misty and accused her of having an affair with Brown.
¶6 Misty walked into the kitchen to get another wine cooler. Phil followed her and continued to accuse her of having an affair. Misty testified that, as she was reaching into the refrigerator for a wine cooler, Phil grabbed her by the hair, pulled her hair back, and slapped her two or three times. Misty testified that Phil then kicked her legs. Misty testified that Brown was not in the kitchen when Phil kicked her. She also acknowledged that they were not within the view of Brown who was in the living room. Misty yelled at Phil to leave her alone and that he was hurting her. Misty testified that she never yelled or told Brown that her life was in danger or that she thought Phil was going to kill her. Misty was afraid that Phil was going to hurt her, but not kill her. Misty testified that Brown came into the kitchen and told Phil not to hit her. She testified that when Brown walked into the kitchen Phil was still holding onto her hair, but that Phil let go of her when Brown entered the kitchen.
¶7 Brown and Phil began to argue. Misty left the kitchen and went into the living room, where she covered the children up with blankets and sat on the couch. Misty did not call 911 because she did not believe the fight would escalate to a homicide. From the living room, Misty could not see what was happening in the kitchen. She could hear Brown and Phil arguing but could not understand what they were saying. She heard a thud and the voices stopped. Brown came into the living room holding a broken kitchen knife. Brown had blood on him and said: “I stabbed him. I think he’s dead.” Brown told Misty that he thought Phil was going for a knife; he pushed Phil out of the way, and grabbed the knife. Misty told Brown that they needed to call an ambulance and the police; Brown responded that he had to think. Misty testified that she did not call an ambulance because she was scared and could not move. She stated that Brown kept repeating that he needed to think. Brown also kept repeating that Phil was going to kill her. Brown told her that he had saved her life.
¶8 Misty estimated that Brown killed Phil some time after 1:00 a.m. Mike Brown, testified that around 1:00 or 1:15 a.m. he received a telephone call from his brother, Bill Brown. Brown asked Mike to come to the Nebekers’ house. Mike got dressed and walked the four blocks to the Nebekers’ house. After Mike arrived, Brown told him that he had killed Phil. Mike thought he was joking. Mike described Misty as shaking, nervous, and in shock. Brown took Mike to the back bedroom to show him Phil’s body. Brown told Mike that Phil was being a “dick” to Misty. Mike however did not recall anyone saying that Phil had been hitting Misty. Brown told Mike that he got into a pushing match with Phil in the kitchen and stabbed him. Mike stated that Brown was pacing the floor trying to figure out what to do. Mike also observed that his brother was not totally upset about what had happened. Mike testified that Brown wanted to get rid of Phil’s body. Brown asked Mike to help him move the body and talked about not having a truck available. Mike testified he did not want to help his brother move the body. After ten to fifteen minutes at the Nebekers’ house, Mike left.
¶9 On the morning of December 19, 2000, Misty’s brother, Dan Hansen was leaving his grandmother’s house when Brown came up to him and asked for a ride to a friend’s house. Hansen gave Brown a ride. Hansen testified that Brown seemed fine and that he was not crying, upset, or emotional. When Hansen and Brown arrived at the friend’s house, Misty was sitting on the couch and crying. Misty told her brother that Brown had killed Phil last night. Misty explained how it happened. She said that when she was in the kitchen getting something out of the refrigerator, Phil grabbed her by the hair. Misty then said that Brown came into the kitchen and she ran into the living room as Brown and Phil started to fight. Misty told her brother she was in the living room when the stabbing occurred. When Misty described the homicide that morning, Hansen testified that Misty did not tell him that Phil had slapped or kicked her. Hansen told Brown and Misty that he “didn’t want any part of this,” and if they did not call the police, he would.
¶10 Later in the afternoon, Brown and Misty returned to the Nebekers’ house. At 3:15 p.m., Brown called the police and asked the police dispatcher to send a detective to the Nebekers’ residence. When the dispatcher asked Brown what was going on, Brown responded that there was a “dead guy in the bedroom.” After further questioning by the dispatcher, Brown revealed that the dead man was Phil Nebeker. Detective Sullivan was in the dispatch room when Brown called. He described Brown as very calm during the call and not speaking with any great deal of emotion.
¶11 Police officers Jack Kelly and Mike Fink were the first to arrive at the Nebekers’ house. When the officers entered the house, Brown was smoking a cigarette in the living room. When Officer Kelly asked him what was going on, he failed to answer. After Officer Kelly asked him a second time, Brown pointed toward the kitchen area and said he was back there. Officer Kelly followed a blood trail to a pile of bed sheets and clothing lying on the floor where Phil’s body was. Officer Fink, meanwhile, was with Misty and Brown in the living room. Officer Fink asked them what was going on and neither of them answered. He then directly asked Brown, and Brown said: “I stabbed the f-er.” Brown also told Officer Fink that the stabbing had occurred last night. Officer Fink placed both Misty and Brown under arrest. Detective Sullivan testified that when Officer Fink arrested Brown, Brown’s emotional state was cold. He was not upset or crying. Officer Fink testified that, in the past, he has been around Brown when he has been drinking and that Brown has been aggressive towards him. Hansen, Misty’s brother, also testified that he has seen Brown get really angry when he drinks.
¶12 The police took photographs of Misty and had her examined by a physjcian because of her report that Phil had pulled her hair, slapped her face, and kicked her legs. Detective Sullivan testified that Misty had marks on her neck from a previous surgery but there were no recent marks on her face. He saw no bruises or lacerations on her face. The photographs of Misty’s legs showed no marks or bruises. Misty acknowledged that there were no bruises in photographs taken of her at the police station. Dr. David Kidder examined Misty on the evening of December 19, 2000. In his work as an emergency room doctor, Dr. Kidder routinely deals with people who have been victims of assault. Dr. Kidder testified that he saw no visual evidence that Misty had been physically assaulted.
¶13 The police also took photographs of Brown to document any of his injuries. Detective Sullivan testified the photographs depicted some old scars on his back. Aside from those scars, there were basically only three marks on Brown’s body. There was a small mark or scratch on the back of Brown’s neck just below his hairline. There was a small cut on Brown’s right hand above his wrist. Detective Sullivan testified that an assailant can incur “knife slippage” marks if he loses control of the knife and gets caught by the blade. He stated that the mark on Brown’s hand could have been a “knife slippage” mark from when the knife handle broke off. Detective Sullivan testified that usually clothing gets ripped or stretched when there has been a wrestling match of some sort during a fight and that the shirt Brown was wearing did not appear to be stretched, ripped or damaged in any kind of struggle.
¶14 State Medical Examiner, Dr. Gary Dale, performed an autopsy on Phil. Dr. Dale testified that Phil had a knife wound that went all the way through his left hand. Dr. Dale also testified that Phil had a stab wound on the back of his left forearm consistent with a defensive-type wound. Phil also had a bruise on his right bicep. Dr. Dale testified that when there has been a reported fight, he sometimes finds bruising over the victim’s knuckles. Dr. Dale saw no bruising, scrapes, or abrasions over Phil’s knuckles. Dr. Dale acknowledged that for there to be bruising, Phil would have had to hit another object with sufficient force to tear blood vessels. Dr. Dale found no injuries that were not directly related to the stab wounds, except for a small scrape on Phil’s left wrist, which was probably related to the knife. Phil had three stab wounds to his chest, one of which fatally sliced a chamber of his heart.
¶ 15 State Crime Lab Forensic Toxicologist James Hutchinson testified that he found no marijuana in Phil’s blood, but that both Brown’s and Misty’s drug screen tests revealed the inactive metabolite of marijuana. A month after killing Phil, Brown sent a letter to Hansen, Misty’s brother. In the letter, Brown stated in part: “[Y]ou know what’s sad is I don’t feel all that bad when I killed him[.] [I]t’s like I have know feelings about it you know!”
¶16 On January 3, 2001, the State charged Brown with deliberate homicide for killing Phil Nebeker. Prior to the trial, the State and Brown were unsuccessful in negotiating a plea agreement.
¶17 At trial, the District Court'instructed the jury on the offense of deliberate homicide and the affirmative defense of mitigated deliberate homicide. Brown argued to the jury that it should convict him of mitigated deliberate homicide. The jury found him guilty of deliberate homicide and the District Court sentenced Brown to 100 years in prison for deliberate homicide and an additional consecutive ten years for his use of a weapon during the homicide.
Discussion
I
¶18 Was there sufficient evidence to sustain the conviction of deliberate homicide, as opposed to mitigated deliberate homicide?
¶19 We have held that a conviction cannot be overturned when the evidence, viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. See State v. Atlas (1986), 224 Mont. 92, 97, 728 P.2d 421, 424. We conclude that the evidence presented at trial was sufficient to allow a jury to convict Brown of deliberate homicide.
¶20 At trial, Brown argued the affirmative defense of mitigating circumstances. In Montana, a defendant commits the offense of deliberate homicide when he or she “purposely or knowingly causes the death of another human being.” Section 45-5-102(l)(a), MCA. A defendant commits the offense of mitigated deliberate homicide when he or she “purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse.” Section 45-5-103(1), MCA (emphasis added). This Court has held that extreme mental or emotional stress for which there is a reasonable explanation or excuse cannot be based on a defendant’s intoxication or anger. State v. Howell, 1998 MT 20, ¶ 24, 287 Mont. 268, ¶ 24, 954 P.2d 1102, ¶ 24; State v. Goulet (1997), 283 Mont. 38, 42, 938 P.2d 1330, 1332-33. Mitigated deliberate homicide is an affirmative defense which the defendant bears the burden of proving by a preponderance of the evidence. Section 45-5-103(2), MCA. Whether a defendant is acting under the influence of extreme mental or emotional stress is a question of fact for the jury. State v. Azure, 2002 MT 22, ¶ 49, 308 Mont. 201, ¶ 49, 41 P.3d 899, ¶ 49.
¶21 Brown argues that the jury should have convicted him of mitigated deliberate homicide because he was under the influence of extreme mental or emotional stress when he stabbed Phil. He claims that his extreme mental or emotional stress was due to Phil’s accusations of an affair, the subsequent fight between Phil and Brown, and his close relationship with Misty. Brown also claims that the State failed to present any evidence to
refute his contention that he was acting under extreme mental or emotional stress and, therefore, the jury should have found him guilty of mitigated deliberate homicide.
¶22 The State responds that it did present sufficient testimony that Brown was not acting under “extreme mental or emotional stress for which there is a reasonable explanation or excuse” when he killed Phil. The State points out that, apart from Brown’s own self-serving statements, there was no evidence of a physical fight between Brown and Phil. First, Detective Sullivan testified that during a fight, clothes are usually stretched or ripped, and that Brown’s were not. Also, apart from a knife slippage mark, there was no physical evidence that Brown had been injured. There were no bruises, scrapes or abrasions on Phil’s knuckles to indicate that there had been a fight between the two men.
¶23 Secondly, the location of the blood also refutes Brown’s claim that Phil had attempted to grab a knife in the kitchen and that Brown stabbed him in the kitchen after beating Phil to the knife. Phil’s body, the large pool of blood, and the blood spattering, were all in the bedroom. In fact, the only traces of blood in the kitchen were some bloody footprints. The location of the blood indicates that the stabbing did not occur in the kitchen, but that Brown had stabbed Phil after Phil had retreated to the bedroom.
¶24 Finally, a number of witnesses testified that Brown was seemingly calm about the murder. Dan Hansen testified that the day after the murder Brown seemed fine; he was not emotional or upset. Detective Sullivan, who was in the dispatch room when Brown called the police, testified that Brown was very calm and unemotional during the call. Officer Fink, who, with Officer Kelly, was the first to arrive at the Nebeker house, testified that Brown’s emotional state was cold. Later, in a letter to Dan Hansen, Brown wrote that he didn’t feel “all that bad when [he] killed him.”
¶25 This evidence belies Brown’s contention that he was under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse. We hold that the testimony and evidence presented at trial, when viewed in the light most favorable to the prosecution, would allow a rational trier of fact, in this case a twelve-member jury, to find the essential elements of deliberate homicide beyond a reasonable doubt.
II
¶26 Did the District Court impose an illegal sentence by punishing Brown for exercising his constitutional right to a jury trial?
¶27 Brown alleges that the District Court punished him for exercising his constitutional right to a trial by imposing a sentence twice as long as the one allegedly offered by the State during plea negotiations. Brown requests that this Court reverse his sentence and remand the matter to the District Court for re-sentencing in accordance with the terms of the proposed plea agreement. After ordering and reviewing a Presentence Investigation of Brown, the District Court sentenced him to 100 years on the deliberate homicide charge and 10 years for the use of a dangerous weapon. According to Brown, the State had offered him a sentence of 50 years for the deliberate homicide charge and 10 years for the use of a dangerous weapon in exchange for his guilty plea. The State maintains, as it did at Brown’s sentencing hearing, that it offered him a 75-year sentence, not a 50-year sentence, in exchange for his guilty plea. Except for being apprised of the plea negotiations at a pretrial conference, there is no evidence that the District Court was involved in the plea negotiation process.
¶28 District combs have broad discretion in sentencing defendants convicted of criminal offenses. State v. Smith (1996), 276 Mont. 434, 445, 916 P.2d 773, 780. We generally review a criminal sentence only for legality-that is, to determine whether it is within the statutory parameters established by the legislature; where a sentence is within those parameters, we generally will affirm. Smith, 276 Mont. at 445, 916 P.2d at 780 (citing State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1091). There are, however, exceptions to these general rules.
¶29 In State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225, this Court established that punishing a person for exercising a constitutional right is a basic due process violation. In Baldwin, the District Court, following its review of the defendant’s preliminary presentence investigation, offered him a 45-day jail term in exchange for his guilty plea on charges of aggravated assault. The defendant rejected the judge’s proposed plea agreement, the case proceeded to trial, and the defendant was convicted. However, second time around, the same judge sentenced the defendant to ten years in prison. The defendant appealed his sentence contending that the District Court had punished him for exercising his right to trial. Baldwin, 192 Mont. at 525, 629 P.2d at 224. We ruled that a trial court, which involves itself in an unsuccessful plea bargaining process and, thereafter, imposes a harsher sentence than was offered in exchange for a guilty plea, must expressly point out the factors which justify the increased sentence. Baldwin, 192 Mont. at 527-28, 629 P.2d at 226. Because the trial court in Baldwin had not done so, we concluded that there was no assurance that the sentence was not increased in retaliation for the defendant’s insistence on a jury trial; on that basis, we remanded for re-sentencing. Baldwin, 192 Mont. at 528, 629 P.2d at 226.
¶30 We followed Baldwin and remanded for re-sentencing on substantially similar facts in State v. Tate (1982), 196 Mont. 248, 639 P.2d 1149. In Tate, the District Court offered the defendant a five-year sentence immediately prior to trial if he pled guilty to the charge. The defendant did not accept the plea agreement, a jury convicted him, and the same judge sentenced the defendant to ten years. In Tate, since we could not determine what new information or facts had led the sentencing court-to dramatically increase the sentence, we remanded the case for re-sentencing. See Tate, 196 Mont. at 251, 639 P.2d at 1150.
¶31 The facts in the case at bar are clearly distinguishable from those in both Baldwin and Tate. In both of those cases, the sentencing court was directly involved with the plea negotiation process. Here, the District Court was not involved. The parties merely informed the District Court at the pretrial conference that the State and Brown were attempting to negotiate a plea agreement. No evidence suggests that the sentencing court itself offered Brown a reduced sentence in exchange for his guilty plea.
¶32 Thus, Baldwin and Tate have no application here. Nonetheless, the District Court complied with our rulings in Baldwin and Tate, which require the sentencing court to expressly point out the factors that justify a defendant’s increased sentence. At Brown’s sentencing hearing, the District Court enumerated the many factors it had considered in imposing the maximum prison sentence of 100 years for deliberate homicide, see § 45-5-102(2), MCA. The court stated:
In arriving at this sentence, the Court has considered the circumstances surrounding the offense. The Court heard the testimony and understands that, even with the conflict between the victim and his wife in this matter, that there is no excuse or justification for what happened. Nothing excuses the conduct of that-of the Defendant that happened that night. It should have easily been handled, and should have been handled, by at least a referral to law enforcement. Defendant chose to do what he did, and he did so with a mean spirit, the Court thinks. And as the Court indicates, there’s been no expression of any remorse for what has happened. The Court has considered the severe impact on the victim, the families of the victim, and the tragic circumstances that have resulted. The Court has considered the Defendant’s relatively young age in arriving at this sentence. I’ve considered his education and his family history. I’ve considered his lengthy criminal record, which also indicates a history of some violence. The Court has considered the Defendant’s long-standing alcoholism and his long-standing substance abuse problems. I’ve considered the recommendations of the probation officer in this matter. I’ve considered the psychological evaluation which indicates that Mr. Brown has an anti-social personality disorder, which is difficult for treatment. The Court has considered the Defendant’s defiance of the law. The Court considers the Defendant to be a threat to the safety of the community; and the Court considers that the Defendant’s prospects for rehabilitation are very guarded, at best.
This fairly exhaustive list of the factors considered by the sentencing court sufficiently accounts for the maximum prison sentence it imposed on Brown.
¶33 Nothing in the record before us supports Brown’s claim that his sentence was improperly increased because he exercised his right to a jury trial. Therefore, we hold that the sentencing court did not violate Brown’s constitutional right to due process.
¶34 Affirmed.
JUSTICES NELSON, COTTER, REGNIER and RICE concur.
|
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] |
JUSTICE RICE
delivered the Opinion of the Court.
¶1 Dan Turnsplenty (Turnsplenty) appeals from his conviction of driving under the influence of alcohol following a jury trial in the Thirteenth Judicial District Court, Yellowstone County, on October 25, 2001. We affirm.
¶2 Turnsplenty raises the following issue on appeal: whether Turnsplenty’s trial counsel provided ineffective assistance of counsel during voir dire.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 At 10:00 p.m., on January 11, 2001, Officer Jamie Schillinger (Schillinger) was patrolling on Jackson Street in Billings, Montana, when he observed a vehicle turning onto the street in front of him. The vehicle was being driven in an erratic manner, making quick darting maneuvers as it proceeded. The vehicle’s rear license plate light was not illuminated as required by law. At the next intersection, Schillinger observed the vehicle quickly accelerate when the traffic light turned green, and then initiate a left turn onto State Street, following behind another vehicle. Schillinger observed the leading vehicle properly turn and enter the closest lane of State Street, but that the suspect vehicle “quickly shot around that car without using a turn signal and went all the way over to the wrong lane of traffic.” Schillinger activated the lights on his patrol vehicle to initiate a traffic stop. In response, the suspect vehicle turned onto Third Avenue South and pulled over. The vehicle was driven by Turnsplenty.
¶4 Speaking with Turnsplenty, Schillinger noticed a strong oder of alcohol coming from inside the vehicle and on Turnsplenty’s breath, and that Turnsplenty’s eyes were bloodshot and glassy. Following an investigation at the scene, including field sobriety tests, Turnsplenty was placed in custody and transported to the Yellowstone County Detention Facility. He was charged by information with driving under the influence of alcohol.
¶5 On May 21, 2001, Turnsplenty went to trial before a jury on the charge. During voir dire, a question and answer exchange between defense counsel and panelist Boyer included the following:
Counsel: So do you believe that [Native Americans] have a lower tolerance for alcohol?
Mr. Boyer: I don’t know if they have a lower tolerance. I know it seems like they have a great deal of consumption of it.
Counsel: So we probably encounter more DUIs with Native Americans than with Caucasians?
Mr. Boyer: I would think the odds of that are pretty good.
Counsel: Because Daniel is a Native American and the charge, you’ve already indicated that you have great concerns about drinking, do you think you might have something of a predisposition in this case?
Mr. Boyer: I might.
Counsel: So do you think that it’s-do you think he’s being arrested for being under the influence of alcohol, he’s Native American, and in your experience do you think that he’s guilty?
Mr. Boyer: I think I would go back, and the young man’s going to have to state his case and prove his case.
Counsel:.,Okay.
¶6 Defense counsel did not follow up this exchange with any additional questions or an explanation of the State’s burden of proof, and did not challenge Boyer for cause, but used a peremptory challenge to exclude Boyer from the panel.
¶7 Under questioning by the prosecutor, Panelist Deming stated that a member of his community had a son killed by a drunk driver which had “almost killed his mother,” and that the family had not gotten over the devastation. Deming, whose brother-in-law had been a patrol officer, further indicated that he had seen too many DUIs and believed the law should be more strict, particularly on repeat offenders.
¶8 Panelist Miller told the prosecutor that she was familiar with the fatal accident referenced by Panelist Deming, as the individual killed therein was her friend and a classmate. Miller stated that she believed drinking and driving was wrong, and that the DUI law in Montana was not strict enough because she had heard of repeat offenders who were “getting away with it.”
¶9 Panelist Waage related that his wife and daughter were involved in a vehicle accident caused by a drunk driver who “just plowed into them, and he didn’t really take time to look,” but that they were not hurt in the accident. Waage expressed frustration over the driver in that matter leaving the state, and although the driver paid the damages, Waage indicated that repeat offenders should be off the streets.
¶ 10 Defense counsel did not ask further questions of Panelists Deming and Miller about the fatal accident they had referenced, nor about their ability to be impartial. Similarly, Panelist Waage was not asked about his ability to judge the matter impartially. Defense counsel did not challenge Deming, Miller or Waage for cause, or exclude them by way of peremptory challenge, and all three of them served on the jury. Further, defense counsel did not voir dire the jury concerning burden of proof, presumption of innocence, and a defendant’s right not to testify.
¶11 Turnsplenty was convicted by the jury. He appeals.
DISCUSSION
¶12 Did Tumsplenty’s trial counsel provide ineffective assistance of counsel during voir dire?
¶13 Turnsplenty claims his counsel rendered ineffective assistance during voir dire by failing to correct Panelist Boyer’s statement that Turnsplenty would have to “state his case and prove it;” by failing to ask follow-up questions of Panelists Deming, Miller and Waage about their possible bias, and for allowing them to serve on the jury; and by failing to conduct voir dire concerning basic criminal law concepts such as burden of proof and presumption of innocence. The State argues that Tumsplenty’s ineffective assistance of counsel claim is not record based and that his conviction should be affirmed.
¶14 In considering ineffective assistance of counsel claims, this Court has adopted the two-pronged test set forth by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. St. John, 2001 MT 1, ¶ 37, 304 Mont. 47, ¶ 37, 15 P.3d 970, ¶ 37 (overruled on other grounds). Under the first prong, the defendant bears the burden of showing that counsel’s performance was deficient or fell below an objective standard of reasonableness. St. John, ¶ 37. In so doing, the defendant must overcome a strong presumption that counsel’s defense strategies and trial tactics fall within a wide range of reasonable and sound professional decisions. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; State v. Harris, 2001 MT 231, ¶ 18, 306 Mont. 525, ¶ 18, 36 P.3d 372, ¶ 18. The second prong requires the defendant to establish prejudice by demonstrating that there was a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Harris, ¶ 19. A defendant claiming ineffective assistance of counsel must ground his or her proof of facts within the record and not on conclusory allegations. St. John, ¶ 38.
¶15 Tumsplenty argues that the record adequately supports his claims of ineffective assistance, and that his counsel’s errors are more egregious than those which occurred in State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57. In Chastain, we considered defense counsel’s failure to challenge for cause or to exercise a peremptory challenge to a juror who had indicated strong feelings unfavorable to Chastain. Reviewing the record on Chastain’s appeal from his conviction, we concluded that, “where, as here, defense counsel abandons his client’s right to challenge a juror for no apparent reason, error must be attributed to the lawyer.” Chastain, 285 Mont. at 65, 947 P.2d at 60. ¶16 Recently, in State v. Herrman, 2003 MT 149, 316 Mont. 198, 70 P.3d 738, we revisited our holding in Chastain, and determined that “in Chastain, it was a mistake for the Court, based on the lack of a reason ‘apparent’ on the record, to determine that counsel was ineffective in voir dire examination.”iZerrmcm, ¶ 28. Herrman involved a defense counsel’s failure during voir dire to ask follow-up questions to panelists who had expressed reservations about being impartial, or to challenge them for cause. Herrman, ¶ 20. Concerning defense counsel’s failure to challenge a panelist for cause, we held:
[I]t is a mistake to assume that we can determine from a cold record whether there was a tactical reason for not exercising a challenge. The reasons for counsel’s actions or inactions should not be “assumed” but should be the subject of a postconviction evidentiary inquiry.
For the above-stated reasons, we overrule Chastain’s holding that a claim of ineffective assistance of counsel for failure to challenge prospective jurors in voir dire can be determined from a record which is silent as to the lawyer’s reasoning.
Herrman, ¶¶ 30, 33. We further concluded that none of Herrman’s claims regarding his counsel’s actions during voir dire could be addressed without considering matters outside the record, and were therefore appropriate for postconviction relief, citing our holding in State v. St. John:
When the record does not provide the basis for the challenged acts or omissions of counsel, a defendant claiming ineffective assistance of counsel more appropriately makes his claims in a petition for postconviction relief. St John, ¶ 40.
Herrman, ¶ 33.
¶17 In Harris we explained that for a claim to be adequately documented for review on direct appeal
the record available to this Court on appeal must afford sufficient understanding of the reasons for counsel’s act or omission to answer the threshold question of whether the alleged error expresses a trial strategy or tactical decision. [Citations omitted.] If the record does not supply the reason for counsel’s act or omission, the claim must be raised by petition for post-conviction relief. St. John, ¶ 40 [citations omitted]. In deciphering the use of the record and the appropriate forum for adjudicating ineffective assistance claims, we explained:
Though not easily distilled into a formula, the definitive question that distinguishes and decides which actions are record and which are non-record, is why? In other words, if counsel fails to object to the admission of evidence, or fails to offer an opening statement, does the record fully explain why counsel took the particular course of action? If not, then the matter is best-suited for post-conviction proceedings which permit a further inquiry into whether the particular representation was ineffective. Only when the record will fully explain why counsel took, or failed to take, action in providing a defense for the accused may this Court review the matter on direct appeal.
Harris, ¶ 21 (citing State v. White, 2001 MT 149, ¶ 20, 306 Mont. 58, ¶ 20, 30 P.3d 340, ¶ 20).
¶18 The voir dire errors claimed by Turnsplenty, i.e., that his counsel failed to ask follow-up questions and to challenge panelists who indicated possible bias, failed to inquire about basic criminal concepts such as burden of proof and presumption of innocence, and failed to correct a panelist’s misstatement of the law, are similar to the claims of error asserted in Herrman. Further, the inadequacy of the record here requires us to the reach the same conclusion as we did in Herrman. We cannot address Tumsplenty’s claims without considering matters outside of the record, and therefore, they are appropriately raised within a postconviction relief proceeding.
¶19 The Court has enunciated a clear rule which can be applied consistently, whether on direct appeal from a conviction, or within a postconviction relief proceeding. Recently, in Watson v. State, 2002 MT 329, 313 Mont. 209, 61 P.3d 759, we held that the district court abused its discretion in summarily dismissing Watson’s petition for postconviction relief. Watson’s ineffective assistance of counsel claim was based on his counsel’s failure to question whether Watson suffered from a mental disease or defect rendering him unable to conform his behavior to the requirements of the law for sentencing purposes. Watson, ¶ 8. The district court concluded that Watson should have raised his claim on direct appeal and denied his petition. However, we determined the record did not contain any information about why defense counsel failed to question whether Watson suffered from a mental disease or defect during the sentencing hearing. Watson, ¶ 16. “As was the case in Harris, we do not know whether the alleged errors in this case reflect a coherent trial strategy or whether they were reasonable and deserve deference and we refuse to speculate.” Watson, ¶ 15, quoting Soraich v. State, 2002 MT 187, ¶ 24, 311 Mont. 90, ¶ 24, 53 P.3d 878, ¶ 24. Without being able to answer why defense counsel failed to question Watson’s mental state from the record, we concluded that the district court erred by holding that Watson could have raised the issue on direct appeal from his conviction, and remanded for an evidentiary hearing to answer the question. Watson, ¶¶ 16-17.
¶20 In this matter, the record on appeal establishes that Turnsplenty’s counsel committed the claimed errors, but does not reveal whether counsel’s inaction was a reasonable tactical decision or a mistake. Because the record is void of any evidence as to why defense counsel did not take such actions, Tumsplenty has improperly raised his ineffective assistance of counsel claim on direct appeal.
¶21 We hold that Turnsplenty’s allegations of ineffective assistance of counsel are not record based, and we dismiss this appeal.
JUSTICES LEAPHART, NELSON, COTTER and REGNIER concur.
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] |
JUSTICE GRAY
delivered the Opinion of the Court.
¶1 Plaintiffs Russell Edward Dorwart (Dorwart) and Harry Dorwart appeal from the judgment entered by the Thirteenth Judicial District Court, Stillwater County, on its order granting partial summary judgment to defendants Paul Caraway, Danny Ames, Cliff Brophy and Stillwater County. The defendants cross-appeal from the judgment entered by the District Court on its order granting partial summary judgment to Dorwart. We affirm in part, reverse in part and remand for further proceedings.
¶2 We address the following dispositive issues on appeal and cross-appeal:
¶3 1. Did the District Court err in determining that the actions of the Sheriffs deputies in entering Dorwart’s residence and levying upon personal property therein did not violate Dorwart’s constitutional rights to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution or his right to privacy under Article II, Section 10 of the Montana Constitution?
¶4 2. Did the District Court err in determining that Montana’s post-judgment execution statutes are unconstitutional because they do not provide the procedural due process of law required by Article II, Section 17 of the Montana Constitution and the Fourteenth Amendment to the United States Constitution?
¶5 3. Are the Sheriff’s deputies entitled to qualified immunity from individual liability for Dorwart’s 42 U.S.C. § 1983 claims?
¶6 4. Did the District Court err in granting summary judgment in favor of Stillwater County and Cliff Brophy, in his capacity as Sheriff, on Dorwart’s 42 U.S.C. § 1983 search and seizure claim?
¶7 5. Did the District Court err in granting summary judgment in favor of the defendants on Dorwart’s conversion and trespass claims and Harry Dorwart’s trespass claim?
¶8 6. Did the District Court err in concluding that Dorwart is not entitled to attorney’s fees?
BACKGROUND
¶9 Dorwart was the named defendant in two actions in the Small Claims Division of the Justice Court in Stillwater County, Montana. Default judgments were entered against him in those actions on February 19 and March 11,1991. The Justice Court subsequently issued writs of execution to enforce the judgments on March 12 and April 9, 1991, respectively.
¶10 On the evening of April 11, 1991, Dorwart was driving his pickup truck along Highway 78 between Columbus and Absarokee when he was stopped by Deputy Sheriff Danny Ames (Ames) and served with the two writs of execution. Ames also arrested Dorwart for driving under the influence of alcohol, seized the pickup truck and transported Dorwart to the Stillwater County Jail (Jail). After Dorwart was incarcerated in the Jail, either Ames or Deputy Sheriff Paul Caraway (Caraway) asked Dorwart whether the door to his residence was locked and Dorwart responded that one door was not locked. He also told the deputies that his wallet and driver’s license were on the dashboard of his mother’s car, which was parked in his driveway.
¶11 Ames and Caraway proceeded to Dorwart’s residence, entered the house and the garage, and seized various items of personal property pursuant to the writs of execution. They also took Dorwart’s wallet from the dashboard of the car. Neither Ames nor Caraway had requested permission from Dorwart to enter his residence.
¶12 Dorwart’s pickup truck, its contents and his wallet were returned to him several days later. On April 18,1991, Dorwart filed in Justice Court a Motion for Release of Property and to Quash the Writs of Execution, supported by an Affidavit of Exemption and other affidavits, asserting that the personal property which Ames and Caraway had seized from his house and garage either was exempt from execution or did not belong to him. The record does not indicate whether the Justice Court held a hearing on Dorwart’s motion but, on September 30, 1991, it ordered that all of the property seized from Dorwart’s house and garage be returned to its rightful owners. Dorwart subsequently retrieved the property from the Jail.
¶13 On April 5,1993, Dorwart filed a complaint against Caraway, Ames, Sheriff Cliff Brophy (Brophy) and Stillwater County (collectively, the County). The complaint asserted various state and federal claims, as well as several common law tort claims, resulting from the seizure of his property and requested monetary damages. Dorwart later amended the complaint to add a claim for declaratory and injunctive relief based on his contention that Montana’s post-judgment execution statutes are unconstitutional. Harry Dorwart, Dorwart’s father and the owner of Dorwart’s residence, asserted a trespass claim against Caraway and Ames.
¶ 14 The County moved for summary judgment on all claims against all defendants and Dorwart moved for partial summary judgment on all but two of his claims. The District Court granted Dorwart’s motion for summary judgment on his claim for declaratory and injunctive relief, granted the County’s motion for summary judgment on the remainder of Dorwart’s claims and entered judgment accordingly. Dorwart appeals and the County cross-appeals.
STANDARD OF REVIEW
¶15 Our standard in reviewing a district court’s summary judgment ruling is de novo; we use the same Rule 56, M.R.Civ.R, criteria as the district court. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997 (citations omitted). A party seeking summary judgment must establish the absence of any genuine issue of material fact which would allow the nonmoving party to recover and entitlement to judgment as a matter of law. Rule 56(c), M.R.CIV.P; Clark, 279 Mont. at 283, 927 P.2d at 997-98 (citations omitted).
¶16 Ordinarily, we begin our review in a summary judgment case by determining whether the moving party established the absence of disputed and material fact issues. See Montana Metal Buildings, Inc. v. Shapiro (1997), 283 Mont. 471, 475, 942 P.2d 694, 696-97. Here, however, the material facts are undisputed and the parties’ assertions of error relate only to the District Court’s conclusions of law regarding entitlement to summary judgment. We review a district court’s conclusions of law to determine whether those conclusions are correct. Albright v. State, by and through State (1997), 281 Mont. 196, 205, 933 P.2d 815, 821 (citation omitted).
DISCUSSION
¶ 17 1. Did the District Court err in determining that the actions of the Sheriff’s deputies in entering Dorwart’s residence and levying upon personal property therein did not violate Dorwart’s constitutional rights to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution or his right to privacy under Article II, Section 10 of the Montana Constitution?
¶18 The District Court concluded that Ames and Caraway did not violate Dorwart’s constitutional rights when they entered his home and levied upon property therein because the writs of execution con stituted judicial authorization for their actions. Dorwart contends that this conclusion is erroneous, arguing that the writs, in and of themselves, were insufficient to justify intrusion into his home without a search warrant. As a result, according to Dorwart, the deputies’ entry into his home and subsequent levy on his property violated his constitutional rights to be free from unreasonable searches and seizures and his right to privacy. We address Dorwart’s separate search and seizure and privacy arguments in turn.
¶19 Dorwart’s complaint stated two search and seizure-related claims against Caraway and Ames. The first was brought pursuant to 42 U.S.C. § 1983 (§ 1983), which authorizes a cause of action when a person has been deprived of a federally protected right by another person acting under color of state law. See 42 U.S.C. § 1983; Mysse v. Martens (1996), 279 Mont. 253, 260, 926 P.2d 765, 769. This search and seizure-related claim alleged that Caraway and Ames violated Dorwart’s rights under the Fourth Amendment to the United States Constitution. The second claim alleged that the deputies’ entry into Dorwart’s home and seizure of his personal property violated his state constitutional rights as guaranteed by Article II, Section 11 of the Montana Constitution. The County moved for summary judgment on both causes of action, contending that the deputies’ actions neither deprived Dorwart of a federally protected right that would give rise to a § 1983 claim nor violated Article II, Section 11 of the Montana Constitution.
¶20 The District Court granted the County’s motion, concluding that Caraway and Ames did not violate Dorwart’s federal or state constitutional rights when they entered his home and levied upon personal property therein because the writs of execution constituted judicial authorization for their actions. Dorwart argues that the writs, in and of themselves, were insufficient to justify intrusion into his home and, as a result, that the entry into his home and levy on his property violated his constitutional rights to be free from unreasonable searches and seizures.
¶21 The Fourth Amendment to the United States Constitution provides that
[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly de scribing the place to be searched, and the persons or things to be seized.
Article II, Section 11 of the Montana Constitution mirrors the Fourth Amendment to the United States Constitution and, as a result, we analyze most search and seizure questions arising under Article II, Section 11 using traditional Fourth Amendment principles. State v. Siegal (1997), 281 Mont. 250, 264, 934 P.2d 176, 184. The fundamental purpose of the Fourth Amendment’s prohibition against unreasonable searches and seizures is to protect the privacy and security of individuals and safeguard the sanctity of the home against arbitrary invasions by government officials. Camara v. Municipal Court (1967), 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930, 935; State v. Gray (1968), 152 Mont. 145, 149, 447 P.2d 475, 477. In effectuating that underlying purpose, the key principle followed by courts is that “except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Camara, 387 U.S. at 528-29, 87 S.Ct. 1727 (citations omitted).
¶22 The specific issue before us is whether an officer’s entry into a private residence for the purpose of executing a writ of execution violates constitutional rights against unreasonable searches and seizures where the only authorization for the officer’s entry into the residence is the writ of execution itself. The County contends that this issue has been addressed in, and is controlled by, Ramsey v. Burns (1902), 27 Mont. 154, 69 P. 711. Itrelies on Ramsey for the proposition that one of the implied powers authorized by a writ of execution includes the levying officer’s right to enter a judgment debtor’s residence or place of business in order to execute the writ and, on that basis, contends that the deputies’ search of Dorwart’s home and seizure of property were not unreasonable because the writs of execution themselves authorized entry into his home. The County’s reliance on Ramsey is misplaced.
¶23 In Ramsey, a special officer, appointed by a justice of the peace and acting pursuant to a pre-judgment writ of attachment, levied upon personal property belonging to a business owned by Ramsey. In executing the writ, the officer entered the business premises, locked the doors and remained in possession of both the premises and the personal property within for five days, releasing the property only when learning it had been mortgaged to another. Ramsey, 27 Mont. at 155, 69 P at 712. Ramsey prevailed in a suit against the officer, the justice of the peace who issued the writ and the sureties of the justice of the peace for damages resulting from destruction of property, false imprisonment and interruption of her business and the defendants appealed. Ramsey, 27 Mont. at 155-56, 69 P. at 712. In addressing the defendants’ contention that the trial court erred in instructing the jury that an officer was not authorized to take possession of premises where property to be seized is located, this Court stated:
An officer has the right to enter a business place against the will of the occupant, permission having been asked and refused, and to seize the property therein belonging to the occupant and subject to levy. It is impossible to make such levy in many cases, as where a whole stock of goods is seized, without taking possession of the place where the goods are.... The officer has a right to enter and have possession of the place, as above stated, for a reasonable time, and he may have there the goods in storage for such reasonable time as he may require to pack them and to procure the necessary transportation for their removal.
Ramsey, 27 Mont. at 156-57, 69 P. at 712. On that basis, we concluded the jury instruction erroneously stated the law. Ramsey, 27 Mont. at 157, 69 P. at 712.
¶24 Ramsey is readily distinguishable. Factual distinctions aside, no constitutional search and seizure issue relating to execution of a writ was raised or addressed in Ramsey. Thus, Ramsey has no application here.
¶25 Whether an officer’s entry into a private residence to execute on a writ violates search and seizure rights, where the only authorization for the entry is the writ of execution itself, is an issue of first impression in Montana. The threshold question in analyzing search and seizure issues is whether the person asserting an invasion of these constitutional rights has a legitimate expectation of privacy in the area invaded. State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113. We have long recognized that a person has a legitimate expectation of privacy in his or her own home. See, e.g., State v. Carlson (1982), 198 Mont. 113, 126, 644 P.2d 498, 505. Thus, Dorwart had a legitimate expectation of privacy in his home and, indeed, the County does not appear to argue otherwise.
¶26 Once a legitimate expectation of privacy has been established, any governmental intrusion into Dorwart’s home conducted without a search warrant is per se unreasonable under the Montana and United States Constitutions subject to only a few well-established exceptions. See State v. Loh (1996), 275 Mont. 460, 468, 914 P.2d 592, 597 (citing Nate v. United States (1967), 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585). These well-established exceptions to the search warrant requirement include voluntary and knowing consent to a search (State v. Rushton (1994), 264 Mont. 248, 257-58, 870 P.2d 1355, 1361) and exigent circumstances (State v. Dawson (1988), 233 Mont. 345, 353, 761 P.2d 352, 357).
¶27 Here, it is undisputed that Ames and Caraway did not have a search warrant authorizing their entry into Dorwart’s home. It is also undisputed that Dorwart did not consent to the deputies’ entry into his home. Furthermore, the circumstances of this case do not fit within the framework of the exigent circumstances exception or any other established exceptions to the search warrant requirement and the County does not argue that any of these exceptions exist in this case. Thus, these established exceptions to the search warrant requirement are not satisfied here and, as a result, it appears that the deputies’ search of Dorwart’s home and seizure of his property were constitutionally unreasonable. See Loh, 275 Mont. at 468, 914 P.2d at 597.
¶28 The County contends, however, that it is well-established that a writ of execution, in and of itself, authorizes officers to enter private residences to levy on personal property therein. It cites to several cases in support of this proposition, but the cases are distinguishable.
¶29 The County first relies on People v. Sylva (Cal. 1904), 76 P. 814, in which the California Supreme Court stated that “[a]n officer charged with the duty of enforcing a judgment by execution has the right to enter the premises of the execution defendant if he can do so peaceably.” Sylva, 76 P. at 815. In Sylva, an attorney and a deputy sheriff entered the defendant’s home to levy on property pursuant to a writ of execution; the defendant pointed a gun at the two and ordered them to leave the premises. The defendant was convicted of assault with a deadly weapon and argued on appeal that the attorney and deputy were trespassers, thus giving him the right to use all force necessary to expel them from his property. The California court concluded that the writ of execution authorized the deputy to both peaceably enter the defendant’s home and bring the attorney as an assistant and, therefore, the two were not trespassers. Thus, the defendant’s justifiable use of force defense failed as a matter of law. Sylva, 76 P. at 815. As in Ramsey, however, no constitutional search and sei zure issue relating to writs of execution was raised or discussed in Sylva, and, as a result, that case has no application here.
¶30 The County also relies on Gumz v. Morrissette (7th Cir. 1985), 772 F.2d 1395, for the proposition that the issuance of a writ of execution by a court after entry of a judgment authorizes the seizure of a civil defendant’s property. In Gumz, Wisconsin officials arrested the plaintiff and seized his dragline equipment based on their determination that the plaintiff had been dredging a waterway without a permit in violation of state civil statutes. The plaintiff brought an action against the officials in the federal district court asserting, in part, a § 1983 claim based on allegations that they violated his rights under the Fourteenth Amendment by seizing his property without affording him due process of law. Gumz, 772 F.2d at 1398. A jury rendered a verdict in favor of the defendants on this due process claim and the district court subsequently denied the plaintiff’s motion to amend the verdict. Gumz, 772 F.2d at 1399. The plaintiff appealed, arguing that the trial court erred in determining that, if defendants established probable cause for their belief that the dragline was being used for illegal dredging, the seizure of the dragline would not violate due process constraints. Gumz, 772 F.2d at 1402.
¶31 The Seventh Circuit Court of Appeals concluded that the civil statutes at issue did not authorize the seizure of property without a prior forfeiture action, stating that “[sjeizure of a civil defendant’s property would only be permissible after entry of judgment and issuance of a writ of execution by the court.” Gumz, 772 F.2d at 1403. This statement, however, clearly was directed only to Fourteenth Amendment due process requirements necessary before state officials could deprive someone of property pursuant to the civil statutes at issue. Indeed, the Seventh Circuit expressly did not address any Fourth Amendment search and seizure issues in Gumz because the plaintiff had waived those issues in the court below. Gumz, 772 F.2d at 1399, n.3. Furthermore, the quoted statement relates only to authorization of a seizure of property; the court made no reference to whether the issuance of a writ of execution would authorize the entry onto private property to conduct a search for property. For these reasons, Gumz is inapplicable here.
¶32 The County next cites to City of Costa Mesa v. Soffer (Cal. App. 1992), 13 Cal.Rptr.2d 735. In Soffer, the California Court of Appeals determined that entry into private property by city officials for inspection of an alleged nuisance, pursuant to judicial authorization, did not contravene the Fourth Amendment proscription against unreasonable searches and seizures. Soffer, 13 Cal.Rptr.2d at 741. The County asserts that the writs of execution in the present case constitute the same type of “judicial authorization” discussed by the California court in Soffer and, therefore, Soffer supports its argument that the writs of execution authorized the deputies’ entry into Dorwart’s home. We disagree.
¶33 In Soffer, the “judicial authorization” was a court order specifically directing the city officials to go onto the defendant’s property to inspect the alleged nuisance. Soffer, 13 Cal.Rptr.2d at 736. Here, neither the writs of execution themselves, nor the post-judgment execution statutes pursuant to which the writs were issued, expressly directed or authorized the deputies to enter Dorwart’s private residence to effectuate the seizure of his property. Thus, Soffer is distinguishable on its facts from the present case and is of no assistance to the County.
¶34 Finally, the County cites to Boyd v. United States (1886), 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, specifically relying on the United States Supreme Court’s statement therein that
[t]he entry upon premises, made by a sheriff or other officer of the law, for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration, or an execution, is not within the prohibition of the Fourth ... Amendment....
Boyd, 116 U.S. at 624, 6 S.Ct. 524. The County urges that, since Boyd has never been overruled, it constitutes controlling authority that writs of execution authorize officers to enter private residences to levy upon property therein without the necessity of a search warrant and without violating Fourth Amendment search and seizure principles. Again, we disagree.
¶35 First, the Supreme Court itself considers the above-quoted language from Boyd to be dicta, and has refused to conclude that the Boyd language required a holding that the Fourth Amendment warrant requirements did not apply to searches of private premises for the purpose of collecting assessed tax deficiencies. See G.M. Leasing Corp. v. United States (1977), 429 U.S. 338, 355-56, 97 S.Ct. 619, 630, 50 L.Ed.2d 530, 545-46. In this regard, we previously have determined that we need not regard dicta in Supreme Court cases as controlling the outcome of issues before us. See Commonwealth Edison Co. v. State (1980), 189 Mont. 191, 200, 615 P.2d 847, 852.
¶36 Further, the Supreme Court’s statement in Boyd was premised on its determination that the Fourth Amendment prohibition against unreasonable searches and seizures does not apply in civil contexts such as executing a writ of execution because the underlying purpose of the search is to locate and seize property to which the creditor is entitled in satisfaction of a debt and not to discover evidence to support criminal charges against the owner of the premises. See Boyd, 116 U.S. at 624, 6 S.Ct. 524. However, the Supreme Court subsequently has reevaluated its earlier cases which concluded that an administrative search touches only the periphery of the interests protected by the Fourth Amendment because it does not seek evidence of criminal activity and, thus, that such a search involves only the less intense “right to be secure from intrusion into personal privacy” rather than the greater “self-protection” interests under the Fourth and Fifth Amendments. See Camara, 387 U.S. at 530, 87 S.Ct. 1727 (citing Frank v. State of Maryland (1959), 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d Boyd, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746). Rather, the Supreme Court determined in Camara that “[i]t is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior ...” because all citizens, law-abiding or not, have a strong interest in limiting the circumstances in which the sanctity of the private home may be invaded by official authority. Camara, 387 U.S. at 530-31, 87 S.Ct. 1727.
¶3 7 We turn, then, to the issue of first impression in Montana which this case presents: whether an officer’s entry into a private residence to execute on a writ of execution violates constitutional rights against unreasonable searches and seizures where the only authorization for the entry is the writ of execution itself. The issue includes two subissues: whether an entry into a residence to execute a writ of execution is subject to constitutional search and seizure provisions and, if so, whether the writ of execution satisfies, or is an exception to, the warrant requirement contained in those provisions. We address these subissues in turn, beginning with a closer review of the guidance provided by Camara and G.M. Leasing with regard to the interface between civil administrative searches and modern constitutional search and seizure principles.
¶38 In Camara, the Supreme Court addressed whether an administrative search of a citizen’s residence to inspect for housing code violations violated Fourth Amendment rights when conducted without a search warrant. Camara, 387 U.S. at 534, 87 S.Ct. 1727. There, the city housing code at issue gave authorized city inspectors “the right to enter, at reasonable times, any building, structure, or premises in the City to perform any duty imposed upon them....” Camara, 387 U.S. at 526, 87 S.Ct. 1727. When Camara refused to allow a city inspector into his home without a search warrant, the city filed a criminal complaint. Camara, 387 U.S. at 527, 87 S.Ct. 1727. Camara contended that the housing code provision violated the Fourth and Fourteenth Amendments because it allowed city officials to enter a private home without a search warrant and without probable cause to believe that a violation of the housing code existed therein. Camara, 387 U.S. at 527, 87 S.Ct. 1727.
¶39 The Supreme Court first concluded, as discussed above, that the Fourth Amendment prohibition against unreasonable searches and seizures applies in civil, as well as criminal, contexts because all citizens have a strong interest in securing their homes from intrusion by officials regardless of the reason for the intrusion. Camara, 387 U.S. at 530-31, 87 S.Ct. 1727. The Supreme Court was concerned that, when an inspector requests entry for an inspection, the occupant of the home has no knowledge of whether enforcement of the code actually requires entry into that home, whether the inspector is acting under proper authority, or the lawful limits of the inspector’s power to search. These are matters which, under other circumstances, normally are addressed by a neutral magistrate in reviewing search warrant applications. Thus,
[t]he practical effect of this system is to leave the occupant subject to the discretion of the official in the field. This is precisely the discretion to invade private property which we have consistently circumscribed by a requirement that a disinterested party warrant the need to search. ... We simply cannot say that the protections provided by the warrant procedure are not needed in this context
Camara, 387 U.S. at 532-33, 87 S.Ct. 1727. For these reasons, the Supreme Court determined that administrative searches such as the housing code inspection were significant intrusions on interests protected by the Fourth Amendment and were subject to the warrant requirement. Camara, 387 U.S. at 534, 87 S.Ct. 1727.
¶40 Similarly, in G.M. Leasing, the Supreme Court concluded that, in levying upon property to satisfy tax deficiencies, the government was not exempt from the Fourth Amendment stricture that a search of private property is unreasonable unless authorized by a valid search warrant. G.M. Leasing, 429 U.S. at 358, 97 S.Ct. 619. In that regard, the Supreme Court determined that the government’s tax assessment, while authorizing all types of property seizures in general, did not authorize all types of warrantless intrusions into privacy to effect those seizures. G.M. Leasing, 429 U.S. at 358, 97 S.Ct. 619, 97 S.Ct. 619. Thus, the internal revenue agents’ entry into G.M. Leasing’s business premises, without a warrant, to levy on property therein violated G.M. Leasing’s rights under the Fourth Amendment. G.M. Leasing, 429 U.S. at 359, 97 S.Ct. 619.
¶41 In both Camara and G.M. Leasing, the Supreme Court’s primary concern was that, absent a judicially authorized search warrant issued after a showing of probable cause to search, there is no limitation on the discretion of the officer conducting such an administrative search of a private home or business. Placing such limitations on the discretion of when, where and how to conduct a search which intrudes upon a private area is the precise reason behind the Fourth Amendment’s search warrant requirement. Camara, 387 U.S. at 534, 87 S.Ct. 1729.
¶42 This Court also has long recognized that the protection against unreasonable searches and seizures provision in Montana’s Constitution applies to all people and their homes and effects, without regard to whether criminal conduct is involved. See State ex rel. King v. District Court (1924), 70 Mont. 191, 196-97, 224 P. 862, 864 (discussing Article III, Section 7 of the 1889 Montana Constitution, which is identical to Article II, Section 11 of the 1972 Montana Constitution). On these bases, we conclude that an officer’s entry into a private home to execute a writ of execution is subject to the search and seizure provisions of the Montana and United States Constitutions. The question remains, however, whether a writ of execution is an exception to, or satisfies, the warrant requirement of these constitutional provisions.
¶43 In the analogous administrative inspection context addressed in Camara, the Supreme Court rejected the notion that an administrative search constituted an exception to the Fourth Amendment’s warrant requirement. It determined that, to adequately protect a person’s Fourth Amendment rights, there must be a showing of “probable cause” to conduct an administrative inspection. Camara, 387 U.S. at 534, 87 S.Ct. 1727. In the administrative inspection arena, the probable cause requirement entails a determination, after weighing the need for the inspection in terms of the reasonable goal to be achieved thereby against the resulting intrusion, that the particular inspection is reasonable under the circumstances. Camara, 387 U.S. at 534-35, 87 S.Ct. 1727.
The warrant procedure is designed to guarantee that a decision to search private property is justified by a reasonable governmental interest. But reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.
Camara, 387 U.S. at 539, 87 S.Ct. 1727.
¶44 More directly on point is Nebraska v. Hinchey (Neb. 1985), 374 N.W.2d 14. There, a sheriff’s deputy went to Hinchey’s home to serve and execute a writ of execution. Although Hinchey refused several times to allow the deputy inside, he finally agreed, but asked the deputy to wait outside a moment while he “put something away.” The deputy, however, immediately followed Hinchey inside the apartment and observed ajar of what appeared to be marijuana. Hinchey subsequently was arrested for possession of marijuana and drug paraphernalia. Hinchey, 374 N.W.2d at 16. Hinchey moved to suppress the evidence, arguing that the deputy had violated his Fourth Amendment rights. The trial court denied the motion, Hinchey was convicted and, thereafter, he appealed the denial of his motion to suppress. Hinchey, 374 N.W.2d at 16-17.
¶45 On appeal, Hinchey argued that his Fourth Amendment rights were violated by the deputy’s entry into his apartment without a search warrant. The prosecution responded that, once the deputy was inside the premises and saw the marijuana, he was authorized to seize it under the “plain view doctrine.” Thus, the question before the Nebraska Supreme Court was whether the deputy was legally authorized to enter Hinchey’s apartment without a warrant prior to viewing the jar of marijuana. The prosecution argued that, because the execution statutes required the deputy to seek property which could be levied upon, the writ of execution issued pursuant to those statutes provided the deputy with lawful authority to enter the apartment without a warrant. Hinchey, 374 N.W.2d at 18.
¶46 The Nebraska court observed at the outset that the statute requiring an officer to seek property on which a levy could be made could not supersede constitutional prohibitions against unreasonable searches and seizures. It determined that, while the Nebraska execution statute authorized the general “seizure” of Hinchey’s prop erty, it did not authorize a warrantless “search” for that property when such a search violated the debtor’s Fourth Amendment rights. Hinchey, 374 N.W.2d at 18-19. The court further concluded that the writ of execution itself did not constitute judicial authorization, as contemplated by the Fourth Amendment’s warrant requirement, because issuance of the writ was purely ministerial and did not require any action or review by a court; to obtain a writ, a judgment creditor needed only to file a praecipe with the clerk of court. Hinchey, 374 N.W.2d at 19. Indeed, the writ was issued
without any showing upon which it may be found that property cannot otherwise be obtained without violating the debtor’s fourth amendment right against unreasonable searches and seizures. That is why arming a sheriff or one of his deputies with a writ of execution is not the same as employing judicial process of a type required for one to obtain a search warrant or an arrest warrant. We see little reason to distinguish between the requirements which must be met before property or persons may be seized for criminal purposes and before property or persons may be seized for civil purposes. Likewise, the fourth amendment does not recognize such a distinction.
Hinchey, 374 N.W.2d at 19. As a result of these conclusions, the Hinchey court held that, absent exigent circumstances, an officer may not enter a private home to levy upon property therein without first obtaining an “execution warrant .’’Hinchey, 374 N.W.2d at 20. Thus, the officer’s entry into Hinchey’s home pursuant to the writ of execution did not constitute an exception to the Fourth Amendment warrant requirement and the writ itself did not rise to the level of a search warrant authorizing the search.
¶47 In the present case, it is undisputed that Caraway and Ames did not obtain a search warrant authorizing them to enter Dorwart’s home. In arguing that a warrant was not required under the circumstances, the County points out that the writs of execution in this case were issued and acted upon in conformity with Montana’s post-judgment execution statutes. This is, of course, similar to the argument made in Hinchey and rejected on the basis that a statute cannot supersede the Fourth Amendment prohibition against unreasonable searches and seizures. See Hinchey, 374 N.W.2d at 18. The mere fact that the issuance of the writs, and the deputies’ conduct pursuant to those writs, did not violate applicable statutes does not establish that the statutory procedures adequately protect the constitutional rights of either Dorwart or other judgment debtors under similar circumstances. See, e.g., Duran v. Buttrey Food, Inc. (1980), 189 Mont. 381, 392, 616 P.2d 327, 333. “To accept that rationale would be to surrender this Court’s power to determine the constitutionality of enactments of the legislature.’’Duran, 189 Mont. at 392, 616 P.2d at 333.
¶48 Moreover, nothing in the post-judgment execution statutes expressly authorizes the entry into a private home for the purposes of executing a writ of execution. While the execution statutes authorize the levy on — or “seizure” of — a judgment debtor’s personal property pursuant to a writ of execution, they do not authorize officials to enter private homes to search for that property. See, e.g, §§ 25-13-304, 25-13-306, 25-13-307, 25-13-402, MCA.
¶49 The County also contends that the writs were judicially approved by the Stillwater County Justice of the Peace, thus fulfilling the “neutral magistrate” purpose served by the constitutional search warrant requirement. We disagree. The writs of execution here cannot be said to have been “judicially approved” in a manner which fulfilled the purpose served by — or the requirements for — a search warrant.
¶50 Review of a search warrant application by an impartial magistrate ensures that a neutral and detached evaluation of the situation is interposed between the investigating officers and the private citizen. State v. Wilson (1994), 266 Mont. 146, 149, 879 P.2d 683, 684. As a result, Montana law requires that a judge or magistrate evaluate a search warrant application and make an objective determination as to whether an intrusion into a private home is reasonable and justified under the circumstances. Wilson, 266 Mont. at 149, 879 P.2d at 684. A judge may issue a search warrant only upon written application, made under oath or affirmation, which states sufficient probable cause for authorizing the search. Art. II, Sec. 11, Mont. Const.; U.S. Const, amend. IV; § 46-5-221, MCA. Moreover, a search warrant must particularly describe the person or place to be searched and the items to be seized. Art. II, Sec. 11, Mont. Const.; U.S.Const. amend. IV; § 46-5-221, MCA.
¶51 Here, it is true that the writs of execution were signed by the Stillwater County Justice of the Peace. Indeed, Rule 23(C), M. J.C.C.R.Civ.P, requires that a writ of execution to enforce a justice court judgment be signed by a justice of the peace. However, neither the justice court civil procedure rules nor the post-judgment execution statutes require any substantive impartial review by a court regarding whether a writ of execution should be issued. Nor does the re cord reflect any applications for the writs at issue here based on affidavit or other testimony describing the place to be searched, the property sought and the necessity of the search. Likewise, the record is devoid of any indication that the Justice of the Peace made an objective determination that there was probable or reasonable cause to believe the search of Dorwart’s home was justified under the circumstances. Finally, the writs themselves do not constitute a suitably restricted search warrant because they fail to delineate the property sought or the place to be searched with any specificity.
¶52 The procedures used here, and the writs of execution issued thereunder, simply did not sufficiently limit the deputies’ discretion in executing the writs to satisfy the search and seizure provisions of the Fourth Amendment to the United States Constitution or Article II, Section 11 of the Montana Constitution. We conclude, therefore, that the writs of execution were not adequate — in and of themselves — to authorize the deputies’ entry into Dorwart’s home and that Ames’ and Caraway’s entry into Dorwart’s home and seizure of his personal property, without his consent and without benefit of a warrant, violated Dorwart’s rights under these constitutional provisions. As a result, we hold that the District Court erred in determining that the actions of Caraway and Ames in entering Dorwart’s residence and levying upon personal property therein did not violate Dorwart’s right to be free from unreasonable searches and seizures.
¶53 Having concluded that writs of execution do not authorize the entry into and search of a private home, the question arises as to how lawful authority to enter and search a home to execute a writ of execution can be obtained. Again, we look to Hinchey for guidance.
¶54 The Hinchey court observed, first, that an officer still has a duty to seek and take possession of property which can be obtained without violating the owner’s Fourth Amendment rights. Hinchey, 374 N.W.2d at 20. When the officer has been unable to secure such property as would satisfy the underlying j udgment, however, and there is reason to believe that personal property subject to execution may be located within the debtor’s residence, an “execution warrant” should be obtained pursuant to the following procedures:
Such an execution warrant should be issued only by a judge... upon reasonable cause supported by affidavit setting out that a writ of execution has been issued and returned unsatisfied in whole or in part and that the affiant has reason to believe that there is property subject to execution in the possession of the debtor kept and maintained within the debtor’s residence, not otherwise available for execution, describing the property sought and the place and purpose of the execution. If the judge is satisfied that there is reasonable cause to believe that there is property of the debtor within the debtor’s possession and that other property is not available for levy and execution, the judge may then issue an execution warrant authorizing the officer to enter the premises and levy upon property subject to execution. In this maimer the fourth amendment prohibition against unreasonable searches and seizures will be satisfied.
Hinchey, 374 N.W.2d at 20. We agree with, and adopt, the execution warrant requirement and procedures set forth in Hinchey for those situations where insufficient property has been obtained pursuant to the writ of execution. We conclude that such an execution warrant, obtained under the procedures set forth above, will protect judgment debtors’ rights to be free from unreasonable searches and seizures under both the Montana and United States Constitutions.
¶55 The District Court also granted summary judgment to the County on Dorwart’s claim that the actions of Caraway and Ames violated his right to privacy as guaranteed by the Montana Constitution. In this regard, the court concluded that the deputies’ actions were reasonable, within the scope of the law and justified by the writs of execution. Thus, the court further concluded that, because no unreasonable search took place, Dorwart’s privacy claim failed as a matter of law. Dorwart argues that the District Court’s conclusions are erroneous and that there is no compelling state interest which justified the nonconsensual, warrantless entry into his home.
¶56 Article II, Section 10 of the Montana Constitution provides as follows:
The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.
We previously have held that an official action which constitutes a “search” as that term is defined, and which is conducted without benefit of a search warrant, implicates Article II, Section 10 of Montana’s Constitution and must be justified by the demonstration of a compelling state interest. See Siegal, 281 Mont. at 257, 934 P.2d at 192. Moreover, any compelling state interest justifying such an intrusion on a person’s privacy must be closely tailored to effectuate only that compelling interest. State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202 (citing Zablocki v. Redhail (1978), 434 U.S. 374, 388, 98 S.Ct. 673, 682, 54 L.Ed.2d 618, 631). Thus, as it is clear that there was a warrantless search of Dorwart’s home, there also must be a concomitant compelling state interest justifying that search in order to avoid violating Dorwart’s right to privacy under the Montana Constitution.
¶57 We held above that the deputies’ actions of entering Dorwart’s home and seizing his personal property therein constituted an unreasonable search and seizure. As a result, the District Court’s conclusion that no violation of Dorwart’s constitutional privacy rights occurred, to the extent it is based on the erroneous determination that the search was reasonable, also is erroneous. Thus, we address the arguments presented regarding whether a compelling state interest justified the intrusion into Dorwart’s home.
¶58 The County does not specifically assert the existence of a compelling state interest justifying the intrusion into Dorwart’s home by Caraway and Ames, but rather focuses on the fact that the writs of execution were issued by the Stillwater County Justice Court in conformity with the statutes governing post-judgment execution procedures. On that basis, it argues that no violation of privacy rights occurred because the writs gave the deputies legal authority to enter Dorwart’s home. We have resolved this argument against the County above and need not address it further here.
¶59 The Attorney General of the State of Montana (State), appearing as amicus curiae, argues that the compelling state interest here is the enforcement of monetary judgments by the seizure of a judgment debtor’s property and the preservation of the credibility of the judicial system. We previously have recognized that a compelling state interest justifying an intrusion into a person’s privacy may exist where the state is acting to enforce its criminal laws for the benefit and protection of other fundamental rights of its citizens. See, e.g., Siegal, 281 Mont. at 263, 934 P.2d at 184; State v. Solis (1984), 214 Mont. 310, 319, 693 P.2d 518, 522. In the present case, however, the entry into Dorwart’s home was not undertaken to enforce the state’s criminal laws nor was it for the purpose of protecting society in general from the actions of criminal wrongdoers. The entry was effectuated for the purpose of enforcing a civil judgment between two private citizens. While we agree that the state has an interest in preserving the integrity of our judicial system and the enforceability of judgments, this interest is not so “compelling” as to justify an intrusion into a person’s private home, without his or her consent, for the pur poses of searching through that home and seizing any and all items of property which might have some value.
¶60 Neither the County nor the State presents additional argument as to the existence of a compelling state interest, closely tailored to effectuate only that interest, which justified the warrantless entry into Dorwart’s home and we conclude that no such compelling interest exists. As a result, we hold that the District Court erred in concluding that the actions of Caraway and Ames in entering Dorwart’s residence and levying upon personal property therein did not violate Dorwart’s right to privacy under Article II, Section 10 of the Montana Constitution.
¶61 Because the District Court erroneously concluded that Dorwart’s right to be free from unreasonable searches and seizures and right to privacy were not violated by the deputies’ actions in this case and granted summary judgment to the County on that basis, further consideration by the trial court of Dorwart’s search and seizure and right to privacy claims under the state constitution was prematurely terminated. In light of our holdings that the District Court erred in granting summary judgment on Dorwart’s claims under Article II, Sections 10 and 11 of the Montana Constitution, we remand for further proceedings on those state constitutional claims.
¶62 2. Did the District Court err in determining that Montana’s post-judgment execution statutes are unconstitutional because they do not provide the procedural due process of law required by Article II, Section 17 of the Montana Constitution and the Fourteenth Amendment to the United States Constitution?
¶63 Montana’s post-judgment execution statutes are located in Title 25, Chapter 13 of the Montana Code Annotated (MCA). Pursuant to those statutes, a party who receives a judgment for money or the possession of property may have a writ of execution issued to enforce that judgment. See §§ 25-13-101(1) and 25-13-201, MCA. A writ of execution issued against the property of the judgment debtor must be satisfied through the levy on and sale of the judgment debtor’s personal or, if necessary, real property. See §§ 25-13-304 and 25-13-402, MCA. All property of the judgment debtor not specifically exempt by law is subject to execution (§ 25-13-501, MCA) and property exempt from execution is set forth in Title 25, Chapter 13, Part 6 of the MCA.
¶64 In creating the statutory exemptions from execution, the Montana Legislature provided that some types of property are completely exempt from execution, while other types of property are ex empt from execution only up to a certain monetary amount. For example, § 25-13-608, MCA, provides that judgment debtors are entitled to exemption from execution of the property and benefits enumerated thereunder without limitation as to the monetary value of the property or benefit. In contrast, § 25-13-609, MCA, provides that judgment debtors are entitled to exemption from execution of the debtor’s interest, not exceeding designated monetary values, in various specified items of personal property. In this case, Dorwart claimed that the deputies levied on personal property which was exempt under § 25-13-609, MCA.
¶65 Dorwart’s complaint sought a declaratory judgment and injunctive relief on the basis that Montana’s post-judgment execution statutes violate his rights to due process of law under the Montana and United States Constitutions. He asserted that he has a property interest in the statutory exemptions from execution provided to judgment debtors and that the statutory execution procedures are constitutionally inadequate because they allowed the County to deprive him of his property interest in the exemptions from execution without due process of law.
¶66 The District Court granted Dorwart’s motion for summary judgment on this claim, determining that the due process provided by the execution statutes is constitutionally deficient. The County contends that the District Court erred, arguing that Dorwart has no constitutionally protected property interest in asserting a statutory personal property exemption and, absent such a property interest, there can be no due process violation. The County also argues that, even if Dorwart has a protected property interest, Montana’s post-judgment execution statutes provide adequate due process. We address these arguments in turn.
A. Property interest in statutory exemptions
¶67 The Montana Constitution provides that “[n]o person shall be deprived of life, liberty, or property without due process of law.” Art. II, Sec. 17, Mont. Const. Similarly, the Fourteenth Amendment to the United States Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law ...”
¶68 In determining whether constitutional due process protections have been violated in a given case, we first address whether a property or liberty interest exists which rises to a level accorded due process protection under the United States and Montana Constitutions. Akhtar v. Van De Wetering (1982), 197 Mont. 205, 210, 642 P.2d 149,152. In order to establish a property interest in a benefit such as the personal property exemptions at issue here, a person must show that he or she has a legitimate claim of entitlement to the benefit. Akhtar, 197 Mont. at 211, 642 P.2d at 153 (citing Board of Regents v. Roth (1972), 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561). The source of such an entitlement to a benefit may be found in state law. Akhtar, 197 Mont. at 211, 642 P.2d at 153 (citing Roth, 408 U.S. at 577, 92 S.Ct. 2701). Therefore, in determining whether Dorwart has a legitimate claim of entitlement to statutory exemptions from execution which creates a constitutionally protected property right, we look first to the statutes establishing the property exemptions available to a judgment debtor in Montana.
¶69 Section 25-13-606, MCA, expressly provides that a resident of Montana is “entitled” to the statutory exemptions from execution. Sections 25-13-608 and 25-13-609, MCA, also provide that judgment debtors are “entitled” to the specific exemptions from execution enumerated therein. Moreover, “entitle” is defined as “to give a right or legal title to ... [t]o qualify for; to furnish with proper grounds for seeking or claiming.” Black’s Law Dictionary 532 (6th ed. 1990). Thus, by stating that judgment debtors are “entitled” to the statutory exemptions, the Montana Legislature has given judgment debtors a legal right to claim and benefit from those exemptions.
¶70 The County posits, however, that we construed the statutory exemptions from execution as personal privileges, rather than entitlements, in Tetrault v. Ingraham (1918), 54 Mont. 524, 171 P. 1148, and Matter of Estate of Sandvig (1991), 250 Mont. 220, 819 P.2d 184. From that premise, it argues that a judgment debtor has no property right entitling him or her to claim personal property as exempt from execution. We disagree.
¶71 In Tetrault, the sheriff levied on and sold property the judgment debtor previously had sold to another person. Tetrault, 54 Mont. at 527, 171 P. at 1149. In subsequent litigation, the purchaser at the sheriff’s sale asserted that the property had been exempt from execution at the time he purchased it. Tetrault, 54 Mont. at 525-26, 171 P. at 1149. In discussing on appeal whether the property was exempt from execution, we determined that the right to claim an exemption is a “personal privilege” of the judgment debtor which can be — and was — waived by the debtor when he sold the property prior to the sheriff’s sale. Tetrault, 54 Mont. at 528, 171 P. at 1149. The ability to claim property exemptions was a “personal privilege” because the ex emption was personal to the debtor and did not attach to, or transfer with, the property when sold to another. In other words, Tetrault’s “personal privilege” language related to who could claim the exemption; it did not relate to whether the exemption from execution was an entitlement or a privilege for purposes of determining whether a property right exists in the exemptions. Thus, Tetrault is not authority for the proposition that a judgment debtor does not have a property interest in statutory exemptions from execution.
¶72 Nor does Estate ofSandvig support the County’s argument that Dorwart does not have a property interest in claiming statutory exemptions from execution. There, the appellants owned a 1929 Model A Ford which was levied on and sold in partial satisfaction of a judgment debt owed to the Sandvig estate. They did not claim the Ford as exempt property. Estate of Sandvig, 250 Mont. at 221-22, 819 P.2d at 185. Subsequently, the appellants petitioned for bankruptcy, claiming a different vehicle as exempt property under the bankruptcy statutes. Several weeks later, they petitioned the district court for recovery of $1,200 each from the Sandvig estate for their exemption interest as judgment debtors in the Ford. The district court denied their petition on the basis that the appellants had waived their exemption interest in the Ford by obtaining an exemption for a different vehicle in the bankruptcy proceeding. We affirmed and, in doing so, reiterated the statement from Tetrault that the statutory exemptions from execution are personal privileges. Estate of Sandvig, 250 Mont. at 222, 819 P.2d at 185-86. We did not further discuss or refer to the “personal privilege” language and, as in Tetrault, that language did not relate to whether the judgment debtors had a property interest in statutory exemptions. Indeed, as in Tetrault, no issue was raised or discussed in Estate ofSandvig regarding whether the appellants had a property interest in the statutory exemptions from execution which would raise due process concerns.
¶73 The State also argues that Dorwart does not have a property interest in the exemptions which is protected under the due process provisions of the Montana and United States Constitutions. The State points out that, pursuant to § 25-13-609, MCA, Dorwart’s interest in the listed statutory exemptions from execution lies only in the specified monetary amounts provided in the statute, rather than in any particular item of property, and, as a result, Dorwart cannot have a protected property interest in the specific items of personal property. The State asserts that the interest protected by the statutory ex emption is merely the debtor’s equity interest, up to the statutorily established amount, in the property’s value. Under the State’s theory, the debtor is not entitled to retain possession of exempt property which has a value greater than the statutorily exempt amount, but is entitled only to the exempted value of that property. Thus, according to the State, the debtor does not have a protected property interest in the specified item of personal property.
¶74 The State misapprehends the nature of the protected property interest at issue here. A judgment debtor’s property interest lies in the statutory exemption from execution itself and the ability to claim that exemption. The resulting benefit to the debtor from claiming a statutory exemption from execution may be either retaining possession of the item of property itself or receiving money equivalent to the statutorily exempt amount, depending on the nature and valúe of the particular item of property. Regardless of the form in which the debtor ultimately receives the benefit of the exemption from execution, he or she is entitled to claim the statutory exemption and that is the property interest which is protected by the right to due process.
¶75 We conclude that, by providing that all Montana residents are entitled to specified exemptions from execution, the Legislature has conferred upon judgment debtors an entitlement to claim and benefit from those exemptions. We hold, therefore, that Montana judgment debtors have a property interest in the statutory exemptions from execution which is protected by the due process guarantees contained in the Montana and United States Constitutions.
B. Adequacy of due process provided by the post-judgment execution statutes
¶76 Having held that due process protects a judgment debtor’s property interest in statutory exemptions from execution, we turn to the District Court’s determinations that Montana’s post-judgment execution statutes do not provide adequate due process and are, therefore, unconstitutional. In this regard, we observe that due process generally requires notice of a proposed action which could result in depriving a person of a property interest and the opportunity to be heard regarding that action. See Matter of Klos (1997), 284 Mont. 197, 205, 943 P.2d 1277, 1281.
¶77 The County argues that the District Court’s ultimate conclusion that the statutes are unconstitutional is erroneous because the court failed to follow the United States Supreme Court’s binding pre cedent in Endicott-Johnson Corp. v. Encyclopedia Press (1924), 266 U.S. 285, 45 S.Ct. 61, 69 L.Ed. 288. We disagree.
¶78 In Endicott-Johnson, the Supreme Court held that due process of law under the Fourteenth Amendment to the United States Constitution does not require that a judgment debtor be given notice and an opportunity to be heard prior to the issuance and execution of a writ of garnishment. When the debtor has been given an opportunity to be heard and have his or her day in court regarding the underlying judgment, he or she must take notice of what will follow after entry of the judgment; no further notice or hearing is necessary before instituting supplemental proceedings to enforce the judgment. Endicott-Johnson, 266 U.S. at 288, 45 S.Ct. 61.
¶79 Endicott-Johnson addressed only whether notice and opportunity for a hearing must be afforded to a judgment debtor prior to the issuance and execution of a writ of garnishment. It did not address whether due process required notice and opportunity for a hearing after the writ has been issued and the debtor’s monies garnished, so that the debtor might be allowed to assert any available exemptions from garnishment or execution. Indeed, the existence of statutory exemptions from garnishment or execution was not raised in Endicott-Johnson and the Supreme Court did not discuss whether statutory exemptions from execution or garnishment might affect due process considerations in such situations.
¶80 Nor are the additional cases on which the County relies as support for its assertion that Endicott-Johnson controls the due process issue before us applicable. While two of those cases cite to Endicott-Johnson for its holding that notice and opportunity for a hearing are not required prior to a writ of garnishment or execution being issued, neither case addressed whether due process requires notice and opportunity for a hearing after a debtor’s money has been garnished or property levied on so that a debtor may effectively assert available exemptions. See Langford v. State of Tennessee (W.D. Tenn. 1973), 356 F.Supp. 1163, 1164; Moya v. DeBaca (D.N.M. 1968), 286 F.Supp. 606, 608. The remaining two cases on which the County relies, while recognizing the continued viability of the Endicott-Johnson holding within its factual parameters, explicitly distinguish Endicoif-Johnson from, and hold it inapplicable to, situations where statutory exemptions from execution or garnishment exist of which the debtor may be erroneously deprived if not afforded notice and opportunity to be heard at some point during the post-judgment proceedings. See Neely v. Century Finance Co. of Ariz. (D. Ariz. 1985), 606 F.Supp. 1453, 1461-62; Cagle v. Carlson (Ariz. App. 1985), 705 P.2d 1343, 1348.
¶81 Moreover, we observe that many of the recent federal cases which have addressed the constitutionality of state statutory schemes for post-judgment garnishment or execution also have determined that Endicott-Johnson is factually distinguishable and, therefore, not dispositive in cases where the statutes at issue grant judgment debtors the right to claim various exemptions from execution. As the United States Court of Appeals for the Tenth Circuit has noted, Endicott-Johnson did not consider the existence of exempt property which might be erroneously seized and sold if some post-judgment notice and hearing are not accorded to the debtor. Aacen v. San Juan County Sheriff’s Dept. (10th Cir. 1991), 944 F.2d 691, 695 (citations omitted).
“Endicott’s rationale assumed that the judgment resolved all outstanding issues between the debtor and the creditor, collection being a ministerial act. However, the judgment does not resolve whether certain property is exempt.” McCahey v. L.P. Investors [(2nd Cir. 1985), 774 F.2d 543, 548], That is, while the judgment resolves the issue whether a debt exists, it does not address whether the creditor can seek satisfaction of the debt from this particular asset.
Aacen, 944 F.2d at 695; see also Finberg v. Sullivan (3rd Cir. 1980), 634 F.2d 50, 56-57; Deary v. Guardian Loan Co., Inc. (S.D.N.Y. 1982), 534 F.Supp. 1178, 1185; Kirby v. Sprouls (C.D. Ill. 1989), 722 F.Supp. 516, 520. Indeed, some cases have questioned Endicott-Johnson’s continued viability in light of modern-day due process jurisprudence. See, e.g., Finberg, 634 F.2d at 56-57; Dionne v. Bouley (1st Cir. 1985), 757 F.2d 1344, 1351; Deary, 534 F.Supp. at 1185-86.
¶82 We are persuaded by the reasoning of the above cases. As a result, we conclude that, insofar as Dorwart asserts that Montana’s post-judgment execution statutes violate due process of law because they do not adequately protect his property interest in the exemptions available thereunder, Endicott-Johnson is not controlling and the District Court did not err in so determining. Having rejected the County’s threshold assertion of error, we proceed to address the substantive basis for the District Court’s conclusion that Montana’s post-judgment execution statutes are unconstitutional because they do not provide judgment debtors with notice of the seizure of property, notice of the statutory exemptions from execution, notice of procedures by which to claim exemptions and of the availability of a hearing regarding those exemptions, and a prompt hearing on whether the property is exempt.
¶83 In addressing whether statutes governing post-judgment execution and garnishment procedures provide adequate due process protections, many of the federal cases cited above apply a balancing test culled from Mathews v. Eldridge (1976), 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. See, e.g, Aacen, 944 F.2d at 695-96; Dionne, 757 F.2d at 1352; Finberg, 634 F.2d at 58; Kirby, 722 F.Supp. at 521.
[identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews, 424 U.S. at 335, 96 S.Ct. 893. Indeed, we previously have recognized and applied this balancing test in addressing the extent of procedural safeguards required to protect due process rights under other circumstances (see M.C. v. Department of Institutions (1984), 211 Mont. 105, 109-10, 683 P.2d 956, 958-59; Matter of M.F. (1982), 201 Mont. 277, 284-86, 653 P.2d 1205, 1208-09), and it is appropriate that we weigh the Mathews factors in our consideration of the due process issue here, as did the District Court.
1. Private Interests Involved
¶84 Applying the first prong of the Mathews test, it is clear that the private interests of both the judgment creditor and the judgment debtor are affected by the official action of levying upon personal property under a writ of execution. The judgment creditor’s interest in the process of executing on a judgment is to obtain the money or property to which the creditor is entitled. The creditor is owed a debt and has expended time and money in taking legal action to reduce that debt to a judgment. Having obtained a judgment against the debtor, the creditor has a strong interest in the speedy and inexpensive satisfaction of that judgment. Furthermore, if the creditor’s ability to execute on the judgment is unduly delayed, there is a possibility that the debtor may dispose of the property or that the property may diminish in value, thus reducing the creditor’s ability to satisfy the judgment.
¶85 The judgment debtor’s interest in the execution process, on the other hand, is to preserve his or her ability to claim that certain property is not subject to execution. As we concluded above, judgment debtors have a property interest in the ability to claim statutory exemptions from execution and, thus, have a strong interest in their ability to initiate procedures by which to effectively claim those exemptions and preserve exempt property. This includes the debtor’s interest in asserting the statutory exemptions from execution to which he or she is entitled and receiving a prompt determination of whether the property which has been, or is about to be, levied on is subject to execution.
¶86 While the creditor’s interest in satisfying a judgment clearly overrides the debtor’s interest in any nonexempt property, the debtor’s interest outweighs that of the creditor as to any property which is statutorily exempt from execution. “Since the debtor has a significant interest in protecting exempt property from seizure, clearly, the debtor is entitled to procedural safeguards that do not adversely affect the creditor’s adjudicated rights.” Kirby, 722 F.Supp. at 521. Once the property is levied on, however, thereby removing the possibility that the debtor will destroy or conceal these assets, the creditor’s interests are adequately preserved and the debtor’s interest in the property becomes “very compelling.” Aacen, 944 F.2d at 696; Dionne, 757 F.2d at 1352.
2. Risk of Erroneous Deprivation and Value of Other Procedural Safeguards
¶87 The second Mathews factor necessitates an examination of the post-judgment execution statutes, in light of the asserted procedural deficiencies of those statutes, to determine whether, under the statutory procedures, there is a risk that judgment debtors will be erroneously deprived of their property and whether requiring additional procedural safeguards would be valuable in reducing the risk of erroneous deprivation.
a. notice of the seizure of property
¶88 Dorwart first asserts that the post-judgment execution statutes are procedurally inadequate because they fail to require that judgment debtors be notified of the seizure of their property either before or after the fact. Indeed, while Dorwart was provided with actual notice of the pending seizure of his property when he was served with the two writs of execution, there is no statutory requirement in the MCA that writs of execution be served upon a judgment debtor at any time. Nor do the statutes provide for any other method of notifying a judgment debtor that property has been seized in satisfaction of a judgment.
¶89 Without notice to a debtor that property will be, or has been, seized under a writ of execution, a debtor’s exempt property could be levied on and sold before the debtor was aware of the seizure, particularly if the property were not in the debtor’s direct possession. Providing such notice to a debtor would protect the debtor’s ability to assert the statutory exemptions from execution to which the debtor is entitled. It is clear, however, that a requirement that the debtor be notified of a seizure of property may detrimentally affect a creditor’s interest by creating an opportunity for the debtor to secrete or dispose of property before the property can be levied on.
¶90 In recognition of these competing concerns, due process usually does not require that a debtor be given notice prior to issuance of a writ of execution or even prior to the levy on the property, as long as the debtor is given notice of the property seizure in a manner which protects the debtor’s ability to assert exemptions. Dionne, 757 F.2d at 1352; Finberg, 634 F.2d at 59. However, “[o]nce the attachment is made, removing the possibility that the debtor will secrete his assets, the debtor must receive and be notified of a timely opportunity to challenge any sequestration of his property which the law makes unattachable.”Dionne, 757 F.2d at 1352 (citations omitted). The additional procedural safeguard of providing a judgment debtor with notice at the time of or shortly after seizure would be valuable in decreasing the risk of an erroneous deprivation of the debtor’s exempt property.
b. notice of the statutory exemptions
¶91 Dorwart also asserts that the post-judgment execution statutes do not provide adequate due process because they do not require that debtors be informed of the existence of exemptions from execution. In this regard, the only notice of exemptions provided in this case was a reference at the bottom of each of the writs of execution directing the sheriff to satisfy the judgment out of any of Dorwart’s property which was “NOT EXEMPT FROM EXECUTION.” The writs did not indicate what property is statutorily exempt from execution or explain where a person could find information on available exemp tions, and the post-judgment execution statutes do not require that judgment debtors be provided such information.
¶92 As we concluded above, judgment debtors have a protected property interest in the ability to claim and benefit from statutory exemptions from execution. That property interest could be lost if they are not informed that the exemptions exist because a debtor unaware of the exemptions likely will not claim them. Thus, there is a risk that debtors will be erroneously deprived of their interest in, and ability to claim, the statutory exemptions from execution.
¶93 In general, due process requires notice which, under the circumstances, is reasonably calculated to inform interested parties of the action and afford them an opportunity to present objections. Aacen, 944 F.2d at 697; Finberg, 634 F.2d at 61-62. Notice to a judgment debtor informing him or her of the availability of exemptions from execution and where information about those exemptions can be found would preserve the debtor’s opportunity to present objections to the levy on, and possible sale of, property which is exempt from execution. To that extent, the additional procedural requirement that debtors be provided with notice of the existence of exemptions and how to locate more information about them would be valuable in reducing the risk of erroneously depriving judgment debtors of their interest in claiming statutory exemptions from execution.
c. notice of procedures by which to claim exemptions and of the availability of a hearing regarding those exemptions
¶94 Dorwart next contends that the statutes at issue are procedurally inadequate because they do not provide for notice to a judgment debtor of procedures whereby the debtor may claim property, wages or benefits as exempt from execution and receive a hearing on that claim. Indeed, Montana’s post-judgment execution statutes do not provide any means by which statutory exemptions can be claimed and determined by a court of law. In response to this statutory vacuum, several methods of claiming exemptions have developed and been judicially approved (see, e.g., Welch v. Huber (1993), 262 Mont. 114, 115, 862 P.2d 1180, 1181; State ex rel. Bartol v. Justice of the Peace Court (1936), 102 Mont. 1, 5, 55 P.2d 691, 691-92), but none have been incorporated into the execution statutes. It is clear that Dorwart availed himself of one of these methods by moving for the release of his property and to quash the writs of execution, which resulted in the Justice Court ordering the return of his seized property. However, Dorwart did not receive actual notice of any available procedures, statutory or otherwise, to claim exemptions from execution. The writs of execution issued in this case were completely silent as to whether a process existed by which to assert exemption rights and how to initiate such a process. Furthermore, the statutory post-judgment execution procedures contain no provision for affording a judgment debtor notice of the availability of any means of asserting exemptions from execution and receiving a hearing on those exemptions.
¶95 The failure to provide notice of any procedures, whether statutory or nonstatutory, by which a judgment debtor may claim the available exemptions from execution and receive a hearing on those claims creates a risk that the debtor may be erroneously deprived of exempt property. Without such notice, a judgment debtor could either fail to pursue a legitimate remedy or not discover the existence of a remedy until it is too late to reclaim the property. In light of the complete absence in Montana’s post-judgment execution statutes of provisions for notifying judgment debtors of procedures to claim exemptions from execution, it is clear that additional procedural safeguards would be valuable.
d. prompt hearing on whether property is exempt
¶96 Finally, Dorwart asserts that the post-judgment execution statutes are unconstitutional because they fail to specifically provide for a hearing on claimed exemptions available under the post-judgment execution procedures or for prompt disposition of exemption claims. Due process clearly requires that a person be given an opportunity for a hearing at which to present objections to an action which could result in depriving the person of a property interest. See Matter of Klos, 284 Mont. at 205, 943 P.2d at 1281; Aacen, 944 F.2d at 697. In the present case, Dorwart asserted his exemption claims by way of his motion for release of his property and to quash the writs of execution and, eventually, the property levied on was returned to him. However, the record does not indicate whether Dorwart ever received a hearing on his exemption claims.
¶97 It is likely that, in most cases, the judgment creditor will have levied on the property prior to the debtor asserting exemptions from execution and, as a result, the longer a hearing on, and disposition of, the debtor’s exemption claims is delayed, the longer the debtor is deprived of possession of the exempt property. Thus, absent a prompt hearing on a judgment debtor’s claim that property is exempt from execution, there is a risk of deprivation of the debtor’s property. Requiring a prompt hearing and decision on whether a judgment debtor’s property is exempt from execution would be valuable in diminishing this risk of an erroneous deprivation of the debtor’s interest.
3. Government’s Interest
¶98 Application of the Mathews test also entails weighing the state’s interest in the post-judgment execution process, including the fiscal and administrative burdens which may be imposed on the state by requiring additional procedural safeguards. Clearly, the state has an interest in enforcing its laws and in preserving the integrity of the judicial system through enforcement of court judgments. That interest includes protecting a judgment creditor’s ability to collect on an adjudicated debt, while conserving the limited financial and administrative resources available to it. The state’s interest also must encompass a judgment debtor’s entitlement to statutory exemptions from execution, however, in order to avoid favoring one party’s legal rights over those of the other.
¶99 A requirement that judgment debtors be given notice of a seizure of their property pursuant to a writ of execution, notice of statutory exemptions from execution, and notice of procedures by which to claim exemptions from execution and receive a hearing on those exemption claims would further the state’s interest in protecting the debtor’s right to the exemptions without significantly impacting on the creditor’s interest in satisfying the judgment, since the creditor is not entitled to execution on exempt property. Nor would the state’s fiscal and administrative burdens be significantly increased, since the notice of property seizures, availability of exemptions and procedures by which to claim exemptions would require only the printing of new, or revising of old, writ of execution forms. ¶100 It is clear, however, that requiring a prompt hearing on a judgment debtor’s claim that property is exempt from execution affects the state’s interests by adding to both its administrative and fiscal responsibilities. This is especially apparent in the additional burden placed upon the state’s judicial system by requiring prompt hearings and disposition of the debtor’s claims.
4. Balancing the Mathews Factors
¶101 We determined above that additional procedural requirements in the execution process would be valuable in reducing the risk of an erroneous deprivation of a judgment debtor’s interest in the ability to claim and benefit from statutory exemptions from execution. The first three requirements are notices to judgment debtors of the seizure of their property under a writ of execution, either at the time of the seizure or shortly thereafter; of the availability of exemptions from execution and where information about those exemptions can be found; and of procedures by which to claim exemptions and receive a hearing on those claims. Providing this information to debtors would protect their property right in claiming statutory exemptions from execution, yet not preclude the judgment creditor from proceeding with an execution sale of any nonexempt property. Furthermore, the burden placed on the state by requiring these notices is slight. It amounts to nothing more than notifying the judgment debtor that particular property has been seized and including information about available exemptions from execution and the existence of procedures by which to claim them in the writ of execution itself. Moreover, the notice of available exemptions need not include a detailed and exhaustive list of all exemptions; it need merely provide notice of the existence of exemptions from execution and how to locate more information about them. See, e.g., Aacen, 944 F.2d at 698. We conclude that, in weighing the interests of the parties involved in execution proceedings, the interest of the judgment debtor in claiming property exemptions substantially outweighs any burden placed on the creditor or the state by these additional notice requirements.
¶102 The final requirement we determined would be beneficial in reducing the risk of erroneously depriving a judgment debtor of his or her interest in claiming exemptions from execution is a prompt hearing and disposition of exemption claims. Such a requirement clearly benefits both the debtor and the creditor by reducing the time involved in resolving their respective claims to the^property at issue and furthers the state’s interest in the integrity of the judicial system. While the requirement of a prompt hearing increases the state’s administrative and fiscal burdens, it also advances the state’s interests in both protecting the debtor’s interest in effectively claiming exemptions from execution and the creditor’s interest in timely satisfying the judgment. See Kirby, 722 F.Supp. at 523. In light of the judgment debtor’s property interest in the ability to claim exemptions from execution, the debtor’s strong interest in retaining — or recovering — property which is exempt from execution and the risk that, absent a prompt hearing on the exemption claims, the debtor will be un necessarily deprived of exempt property for a substantial period of time, we conclude that the debtor’s interests here outweigh the cost, both fiscally and administratively, imposed upon the state.
¶103 In summary, we conclude that, as applied in this case, Montana’s post-judgment execution statutes violate state and federal constitutional guarantees of due process of law because they do not provide for notice to a judgment debtor of the seizure of the debtor’s property, of the availability of statutory exemptions from execution and where to locate additional information about them, and of the availability of procedures by which to claim exemptions from execution. We further conclude that, as applied in this case, the statutes are deficient from a due process standpoint because they do not provide for a prompt hearing on claimed exemptions. Moreover, the District Court’s failure to specify whether it was addressing the statutes on a facial or as applied basis notwithstanding, we deem the court’s conclusion to have been on an as applied basis and hold that the District Court did not err in determining that Montana’s post-judgment execution statutes are unconstitutional as applied because they do not provide the procedural due process of law required by Article II, Section 17 of the Montana Constitution and the Fourtheenth Amendment to the United States Constitution.
¶104 3. Are Caraway and Ames entitled to qualified immunity from individual liability for Dorwart’s § 1983 claims?
¶105 The District Court concluded that Caraway and Ames were entitled to qualified immunity from individual liability for Dorwart’s due process claims based on its determination that the constitutional notice-related rights which were violated were not clearly established at the time the deputies acted pursuant to the writs of execution and because the deputies could not reasonably have understood that their actions violated Dorwart’s rights. As a result of its erroneous determination that Caraway and Ames did not violate Dorwart’s search and seizure rights, the District Court did not address whether they were entitled to qualified immunity for entering his residence and seizing his property. Dorwart contends that the District Court’s qualified immunity conclusion regarding his due process claim was erroneous and that the deputies also are not entitled to qualified immunity on his search and seizure claim. Therefore, we address qualified immunity vis-a-vis both the due process claim and the search and seizure claim.
¶106 Dorwart’s due process claim requested only a declaratory judgment and permanent injunction. He did not seek monetary damages for that claim. Qualified immunity is a defense to damages liability; it is not available in actions for declaratory or injunctive relief. American Fire, Theft and Collision Managers, Inc. v. Gillespie (9th Cir. 1991), 932 F.2d 816, 818. Therefore, we conclude that the District Court erred in applying qualified immunity in the context of Dorwart’s due process claim.
¶107 Qualified immunity shields government officials performing discretionary functions from liability for civil damages when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald (1982), 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, 410. In analyzing whether an official is entitled to qualified immunity, a court must identify the right violated, determine whether the right was clearly established at the time of the violation and, if the right was clearly established, determine whether a reasonable person or official would have known that his or her conduct violated that right. Hamilton v. Endell (1992), 981 F.2d 1062, 1066; Orozco v. Day (1997), 281 Mont. 341, 350, 934 P.2d 1009, 1014. In this regard, a plaintiff has the initial burden of proving that the right was clearly established at the time of the violation. If — but only if — the plaintiff makes this showing, the burden shifts to the defendant asserting qualified immunity to prove that his or her conduct was reasonable even though it violated the law. See Hamilton, 981 F.2d at 1066.
¶108 Dorwart correctly asserts that he had a clearly established constitutional right to be free from searches and seizures in his home in the absence of a search warrant or one of the exceptions to the warrant requirement. See U.S. Const, amend. IV; Art. II, Sec. 11, Mont. Const.; State v. Bullock (1995), 272 Mont. 361, 374, 901 P.2d 61, 70. This general statement of the right to be free from unreasonable searches and seizures is too broad, however, for purposes of determining the “clearly established right” portion of the qualified immunity determination under given circumstances. Rather, the right which has been violated must be clearly established in a more particularized, relevant sense. See Aacen, 944 F.2d at 701; Anderson v. Creighton (1987), 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523, 531. While a plaintiff need not show that the specific action in question previously has been held unlawful, it must be demonstrated that, under the particular circumstances of the case and in light of pre-existing law, the unlawfulness of the action taken was apparent. Anderson, 483 U.S. at 640, 107 S.Ct. 3034. Under the circumstances of this case, Dorwart must demonstrate that, at the time the deputies entered his home, it was clearly established that the writs of execution did not authorize their entry in the absence of a warrant or an established exception to the warrant requirement and that, as a result, they violated his right to be free from unreasonable searches and seizures.
¶109 In this regard, the specific issue presented and resolved above — whether a writ of execution, in and of itself, authorizes officers to enter a person’s home and seize property therein — is one of first impression in Montana. In the only other Montana case addressing the extent of an official’s authority when acting pursuant to a writ, we concluded that a writ of attachment provides an official with “the right to enter a business place against the will of the occupant, permission having been asked and refused, and to seize the property therein belonging to the occupant and subject to levy.” Ramsey, 27 Mont. at 156, 69 P. at 712. Our 1902 decision in Ramsey is the only Montana case interpreting the scope of authority derived from a writ directing a levy on property. While Ramsey did not address or resolve whether such an entry would survive constitutional scrutiny, it certainly appeared to authorize an official acting pursuant to a writ directing the levy on a person’s property to enter and take possession of the premises in which property subject to execution was located in order to effectuate the execution without the necessity of a warrant.
¶ 110 Moreover, while the cases on which we relied in resolving issue one above — Camara, G.M. Leasing and Hinchey — had been decided prior to Ames’ and Caraway’s unlawful entry into Dorwart’s home, it would not have been clear that we would interpret those cases as supporting our conclusion that the deputies’ actions violated Dorwart’s constitutional rights. Camara and G.M. Leasing, while providing guidance in addressing the scope of warrantless administrative searches and seizures, did not directly address actions taken pursuant to a writ of execution. Indeed, in neither case did there appear to be any type of judicial authorization for entry into the complainant’s premises. See Camara, 387 U.S. at 526, 87 S.Ct. 1727; G.M. Leasing, 429 U.S. at 344-46, 97 S.Ct. 619. Furthermore, while Hinchey directly addressed the issue raised in the present case, it is merely persuasive authority, not binding precedent.
¶111 Additionally, the Supreme Court previously had expressly stated that an officer’s entry into private premises to levy on property pursuant to a writ of execution is not subject to Fourth Amendment constraints. See Boyd, 116 U.S. at 624, 6 S.Ct. 524. While we determined above that Boyd does not control our resolution of the search and seizure issue before us, the Supreme Court has never expressly overruled that portion of Boyd and, thus, it remained a potential source of authority on which to base a conclusion that Ames and Caraway did not violate Dorwart’s rights when they entered his home.
¶112 We conclude that, under the law as it existed at the time Ames and Caraway entered Dorwart’s home and levied upon his property, it was not clearly established that the writs of execution pursuant to which the deputies acted did not, in and of themselves, authorize entry into a private residence or that their entry pursuant only to the writs of execution violated Dorwart’s right to be free from unreasonable searches and seizures. Because Dorwart has not satisfied his initial burden of proving that the right which the deputies violated was clearly established at the time of the violation, we need not address whether it was objectively reasonable for Ames and Caraway to believe their conduct was lawful. See Hamilton, 981 F.2d at 1066. We hold that Caraway and Ames are entitled to qualified immunity from individual liability for Dorwart’s § 1983 search and seizure claim.
¶113 4. Did the District Court err in granting summary judgment in favor of Stillwater County and Brophy, in his capacity as Sheriff, on Dorwart’s § 1983 search and seizure claim?
¶114 As we stated above in addressing the search and seizure issue, § 1983 provides a cause of action for a person who is deprived of a federally protected right by another person acting under color of state law. 42 U.S.C. § 1983; Mysse, 279 Mont. at 260, 926 P.2d at 769. Generally, § 1983 claims are brought against public officials in their individual capacities for their actions taken under color of state law. See Orozco, 281 Mont. at 348, 934 P.2d at 1013. However, municipalities and local governmental entities also may be sued as “persons” under § 1983. Orozco, 281 Mont. at 347, 934 P.2d at 1012.
¶115 A local governmental entity may be held liable under § 1983 only when it is shown that the entity itself caused the constitutional violation at issue through the implementation of a policy or custom of that governmental entity. City of Canton, Ohio v. Harris (1989), 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412, 424 (citing Monell v. New York City Dept. of Social Services (1978), 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611). Thus, in order to impose liability on a local governmental entity under § 1983, a plaintiff must establish
“(1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate indifference’ to the plaintiff’s constitutional right; and (4) that the policy is the ‘moving force behind the constitutional violation.’ ”
Buhr on Behalf of Lloyd v. Flathead County (1994), 268 Mont. 223, 239, 886 P.2d 381, 390 (quoting Oviatt By and Through Waugh v. Pearce (9th Cir. 1992), 954 F.2d 1470, 1474). Similarly, a supervisor, such as Brophy here, cannot be held liable under § 1983 unless it is demonstrated that the supervisor’s adoption of a plan or policy authorized or approved of the conduct alleged to have resulted in the constitutional deprivation. See Bergquist v. County of Cochise (9th Cir. 1986), 806 F.2d 1364, 1369-70.
¶116 The District Court determined that Dorwart failed to demonstrate that either Stillwater County or Brophy had adopted policies regarding levy and execution under a writ of execution other than the “policy” of relying on Montana statutes and, therefore, that Dorwart had not established the elements set out in Buhr. On that basis, it concluded that Dorwart’s § 1983 claims against Stillwater County — and, by implication, Brophy — failed as a matter of law. We note that the only § 1983 claim on which Dorwart has prevailed is his claim that Caraway and Ames violated his Fourth Amendment rights when they entered his home and seized his property and, as a result, we review the District Court’s conclusion here only as it relates to this search and seizure claim.
¶117 Dorwart argues that the District Court’s conclusion was erroneous because he established that the actions of Ames and Caraway in entering his residence and seizing his property were carried out in the usual and customary manner of the Stillwater County Sheriff’s Office. He further asserts that this customary procedure was the policy which resulted in the deprivation of his constitutional rights and that, by allowing deputies to proceed under this policy, Brophy and Stillwater County failed to adequately train and supervise the deputies. According to Dorwart, this failure to train and supervise amounted to “deliberate indifference” to his constitutional rights. We disagree.
¶ 118 A governmental entity’s failure to adequately train or supervise its law enforcement officers may be the basis of § 1983 liability when that failure to train or supervise amounts to deliberate indifference to the rights of persons with whom the officers come into contact. Harris, 489 U.S. at 388, 109 S.Ct. 1197. However, “deliberate indifference” in this context occurs only when the need for different action is so obvious, and the inadequacy of the procedure used is so likely to result in violations of constitutional rights, that it is reasonable to say the policymakers were deliberately indifferent to the need to change the policy. Buhr, 268 Mont. at 240, 886 P.2d at 391 (citations omitted); Harris, 489 U.S. at 390, 109 S.Ct. 1197. Thus, in order for Dorwart to satisfy the deliberate indifference element for imposing liability under § 1983, he must establish that Stillwater County’s customary procedures for serving and executing a writ of execution, as implemented by Ames and Caraway in this case, obviously were constitutionally inadequate and that Stillwater County and Brophy were deliberately indifferent to the need to remedy those procedural inadequacies.
¶ 119 As we discussed above in addressing the issue of qualified immunity, it was not clearly established prior to this case that a law enforcement officer’s entry into a person’s residence and seizure of property therein pursuant solely to a writ of execution violates the person’s constitutional right to be free from unreasonable searches and seizures. Montana statutes governing post-judgment execution procedures do not define the extent of an officer’s authority when executing a writ of execution. Moreover, the only Montana case addressing the extent of implied authority under a writ held that the officer was authorized to enter premises against the will of the occupant and levy upon property located therein. See Ramsey, 27 Mont. at 156, 69 P. at 712.
¶120 We conclude that when Ames and Caraway entered Dorwart’s residence and seized his property, the constitutional inadequacy of Stillwater County’s customary procedures for executing a writ of execution was not obvious and, as a result, Stillwater County and Brophy were not deliberately indifferent to the need to remedy the inadequacies we have now determined exist. Thus, Dorwart has failed to establish the necessary “deliberate indifference” element, as required under Buhr, for imposing § 1983 liability on a governmental entity. We hold, therefore, that the District Court did not err in granting sum mary judgment in favor of Stillwater County and Brophy, in his capacity as Sheriff, on Dorwart’s § 1983 search and seizure claim.
¶121 5. Did the District Court err in granting summary judgment in favor of the County on Dorwart’s conversion and trespass claims and Harry Dorwart’s trespass claim?
¶122 In the amended complaint, Dorwart and his father asserted conversion and trespass claims against the County. The District Court granted summary judgment in favor of the County on these claims on the basis that, since it had determined that the writs of execution authorized Ames and Caraway to enter Dorwart’s residence and levy upon his property therein, Dorwart could not establish the unauthorized entry element of a trespass claim or the unauthorized seizure of control over property element of a conversion claim.
¶123 Dorwart argues that, because the District Court erred in determining that the writs of execution authorized the deputies to enter his residence and seize his property, the court also erred in determining as a matter of law that the “unauthorized” elements of his tort claims could not be established. He contends that, in the event this Court holds — as we have above — that the writs of execution did not authorize Ames and Caraway to enter his residence and seize his property, his trespass and conversion claims are viable and should be reinstated. We agree that, given our holding on issue one, the basis on which the District Court concluded that Dorwart and his father could not establish their tort claims is incorrect.
¶124 The County reiterates here, however, the alternative argument it raised in the District Court with regard to the tort claims. According to the County, Dorwart’s tort claims still fail because the deputies were justified in their execution of writs which were regular on their face, issued by competent authority and appeared, at the time, to authorize the deputies’ actions. In this regard, the County essentially contends that Ames and Caraway could not reasonably have understood that their actions were not authorized by the writs of execution and, therefore, none of the defendants should be liable for damages. The District Court did not reach this argument because of its ruling that the writs authorized the deputies’ actions. However, we will “affirm district court decisions which are correct regardless of the court’s reasoning in reaching the decision.” Clark, 279 Mont. at 286, 927 P.2d at 999 (citation omitted). Thus, we examine the County’s alternative argument.
¶125 We previously have held that actions of law enforcement officers cannot be tortious when the officers are proceeding on the basis of a reasonable, good faith understanding of the law and do not act with unreasonable violence or subject citizens to unusual indignity. Strung v. Anderson (Mont. 1975), 529 P.2d 1380, 1382 (citing Daly v. Pedersen (D. Minn. 1967), 278 F.Supp. 88, 93; Harri v. Isaac (1940), 111 Mont. 152, 107 P.2d 137; Wheeler v. Moe (1973), 163 Mont. 154, 515 P.2d 679; Meinecke v. McFarland (1949), 122 Mont. 515, 206 P.2d 1012). We further opined that “it would put too great a burden on law enforcement officers to make them subject to damages every time they miscalculated in what a court of last resort would determine constituted an invasion of constitutional rights.” Strung, 529 P.2d at 1381.
¶126 We held above that, at the time Ames and Caraway acted pursuant to the writs of execution, it was not clearly established that their actions violated Dorwart’s constitutional rights. Thus, when the deputies entered Dorwart’s home to execute the writs of execution according to procedures which appeared to be appropriate under then-existing Montana law, they were acting on a “reasonable, good faith understanding of the law.” See Strung, 529 P.2d at 1382. Furthermore, Dorwart has not alleged — and the record does not suggest — that the deputies acted with unreasonable violence or subjected him to unusual indignity. Strung, 529 P.2d at 1382. We conclude, therefore, that the actions of Ames and Caraway in entering Dorwart’s residence and levying upon property therein were not tortious as a matter of law.
¶127 We hold that the District Court did not err in granting summary judgment in favor of the County on the state law tort claims for conversion and trespass asserted by Dorwart and his father.
¶128 6. Did the District Court err in concluding that Dorwart is not entitled to attorney’s fees?
¶129 The District Court determined that the only statute under which Dorwart potentially could be awarded attorney’s fees was 42 U.S.C. § 1988 (§ 1988), which provides that a prevailing claimant in an action brought pursuant to § 1983 may be awarded attorney’s fees at the court’s discretion. The court concluded that Dorwart was not entitled to attorney’s fees for Dorwart’s § 1983 search and seizure claim based on its erroneous determination that the deputies’ actions had not violated Dorwart’s right to be free from unreasonable searches and seizures. While the District Court erred in denying Dorwart attorney’s fees on that basis, we conclude that its overall determination that Dorwart is not entitled to attorney’s fees under § 1988 is correct. We will affirm a district court’s decision which is correct regardless of the court’s reason for that decision. Clark, 279 Mont. at 286, 927 P.2d at 999 (citation omitted).
¶130 Dorwart has prevailed on his claim that the County’s actions violated his right to be free from unreasonable searches and seizures under the Montana and United States Constitutions. He argues that, insofar as his search and seizure claim established a violation of the Fourth Amendment to the United States Constitution for purposes of a § 1983 action, he is entitled to attorney’s fees pursuant to § 1988.
¶131 It is true that a successful § 1983 claimant may be awarded attorney’s fees under § 1988 regardless of the fact that qualified immunity prevents liability for monetary damages. See Jackson v. Galan (5th Cir. 1989), 868 F.2d 165, 168 (citing Pulliam v. Allen (1984), 466 U.S. 522, 543-44, 104 S.Ct. 1970, 1981-82, 80 L.Ed.2d 565, 580). However, there are cases where attorney’s fees should be denied because special circumstances exist which would render an award of attorney’s fees unjust. Blanchard v. Bergeron (1989), 489 U.S. 87, 89, 109 S.Ct. 939, 942, 103 L.Ed.2d 67, 72 (citing Newman v. Piggie Park Enterprises, Inc. (1968), 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263, 1266). We conclude that such special circumstances exist in the present case.
¶132 Where a § 1983 claim is derived from the actions of a county and its officers in enforcing or following state laws and, thereby, effectuating state policy, that county and its officers should not be subject to liability for attorney’s fees resulting from the claim. See, e.g., Familias Unidas v. Briscoe (5th Cir. 1980), 619 F.2d 391, 406; Minnesota Council of Dog Clubs v. City of Minneapolis (Minn. Ct. App. 1995), 540 N.W.2d 903, 906. The actions taken by Ames and Caraway in executing the writs at issue here were pursuant to Stillwater County’s customary procedures for the execution of a writ issued in conformance with the Montana execution statutes. Indeed, in levying upon Dorwart’s personal property, the deputies were enforcing the public policy of Montana regarding post-judgment executions as set forth in statutes duly enacted by the Legislature and they were, therefore, effectuating state policy rather than a policy promulgated by the County. As a result, we conclude that awarding attorney’s fees against the County for Dorwart’s § 1983 search and seizure claim would be unjust.
¶133 Dorwart also has prevailed on his declaratory judgment action seeking a declaration that Montana’s post-judgment execution statutes are unconstitutional because they do not provide adequate due process of law, and he asserts that he is entitled to attorney’s fees on that claim. Montana has long followed the rule that attorney’s fees will not be awarded to a prevailing party absent statutory or contractual authority for such an award. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 429, 913 P.2d 641, 650. No statute authorizes an award of attorney’s fees in a declaratory judgment action. McKamey v. State (1994), 268 Mont. 137, 148, 885 P.2d 515, 522. Furthermore, no contract authorizes such an award in this case. Thus, we conclude that Dorwart is not entitled to attorney’s fees for prevailing on his claim brought under Montana’s Uniform Declaratory Judgments Act.
¶134 Dorwart also argues that he is entitled to attorney’s fees for prevailing on the search and seizure and privacy claims he brought under Article II, Sections 10 and 11 of the Montana Constitution. As discussed above, the District Court’s consideration of Dorwart’s state constitutional claims terminated prematurely as a result of its erroneous determination that no state constitutional violations had occurred. The same is true with regard to the court’s consideration of Dorwart’s attorney’s fees arguments regarding those claims. Thus, we conclude that Dorwart’s arguments regarding entitlement to attorney’s fees on his claims under Article II, Sections 10 and 11 of the Montana Constitution must be remanded in conjunction with our remand of those constitutional claims for further proceedings.
¶135 Affirmed in part, reversed in part and remanded for further proceedings.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON and REGNIER concur.
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 Appellants John Old Elk, June Goodleft and Dana Zimmer (the Appellants) filed a complaint against Respondent Healthy Mothers, Healthy Babies, Inc. (HMHB), in the First Judicial District Court, Lewis and Clark County. HMHB subsequently filed a motion for summary judgment. The District Court granted HMHB’s motion, and the Appellants appeal. We affirm the judgment of the District Court. ¶2 We restate the issues on appeal as follows:
¶3 1. Did the District Court err in granting HMHB’s motion for summary judgment?
¶4 2. Did HMHB violate the Separation and Release Agreements by moving for summary judgment?
¶5 3. Are the Appellants entitled to recover attorneys’ fees and costs pursuant to § 39-3-214, MCA (1999)?
BACKGROUND
¶6 The Appellants were terminated by their employer, HMHB, in January of 1994. On February 22, 1994, June Goodleft entered into a Separation and Release Agreement with HMHB. John Old Elk and Dana Zimmer then entered into Separation and Release Agreements with HMHB on March 10,1994, and March 16,1994, respectively. The Separation and Release agreements (hereinafter the Agreements) all contained the following provisions:
THREE: The Employee agrees to release HMHB, any related entities, and the employees, directors and employee benefit programs of any of them, and their agents and insurers, from all rights or claims the Employee may have, related to the Employee’s employment with HMHB or the termination of that employment. This also includes a release of any rights or claims the Employee may have under the Age Discrimination in Employment Act, which prohibits discrimination in employment; Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, national origin, religion or sex, the Equal Pay Act, which prohibits paying men and women unequal pay for equal work; or any other federal, state or local laws or regulations prohibiting employment discrimination. This also includes a release by the Employee of any claims for wrongful discharge, or any other state law claims.
However, by signing this release the Employee does not give up [his or] her rights, if any, to unpaid salary, pension, retiree, health or similar benefits under HMHB’s standard compensation and benefits program applicable to the Employee or under the Separation Plan, with one exception: By signing this release the Employee does give up [his or] her rights to any benefit or amount claimed by [him or] her if the Employee’s claim or position was rejected or denied before the Employee signed this agreement. FOUR: The Employee promises never to file a lawsuit asserting any claims that are released in Section Three.
¶7 Despite the above provisions, the Appellants filed a pro se complaint against HMHB, its employees and directors, on January 3, 1995. The Appellants then filed an amended pro se complaint on April 27, 1995. On August 21, 1996, the District Court issued an order, in which it concluded that the Appellants’ original pro se complaint and amended pro se complaint failed to comply with Rule 8(a), M.R.Civ.P., which requires pleadings to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Consequently, the District Court directed the Appellants’ newly-hired counsel to file a second amended complaint that complied with Rule 8(a), M.R.Civ.P.
¶8 The Appellants filed their second amended complaint on October 1, 1996. The Appellants’ second amended complaint contained the following claims: (1) wrongful discharge; (2) breach of contract; (3) breach of the implied covenant of good faith and fair dealing; (4) interference with contract; and (5) tortious conduct. HMHB responded by filing a motion for summary judgment on October 16,1997, alleging that pursuant to the Agreements, the Appellants relinquished any claims they may have had against HMHB, its employees, and directors.
¶9 On March 3,1998, the Appellants filed a motion under Rule 56(f), M.R.Civ.P., requesting that judgment on HMHB’s summary judgment motion be postponed pending completion of the discovery process. The District Court conducted a hearing on September 3,1998. On December 9, 1998, the District Court issued an order, denying the Appellants’ Rule 56(f), M.R.Civ.P., motion and granting HMHB’s motion for summary judgment.
¶10 The District Court subsequently entered judgment against the Appellants on June 12, 2000, and ordered the Appellants to pay HMHB’s attorneys’ fees and costs. On July 7,2000, the Appellants filed a motion to set aside the District Court’s grant of summary judgment to HMHB. The District Court denied the Appellants’ motion on September 5, 2000. The Appellants appealed on October 4, 2000.
STANDARD OF REVIEW
¶11 Our review of a district court’s grant or denial of a motion for summary judgment is de novo. Casiano v. Greenway Enterprises, Inc., 2002 MT 93, ¶ 13, 309 Mont. 358, ¶ 13, 47 P.3d 432, ¶ 13. Therefore, we apply the same Rule 56, M.R.Civ.P., criteria as applied by the district court. Casiano, ¶ 13. 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.
Casiano, ¶ 13.
DISCUSSION
¶ 12 As a preliminary matter, we note that in considering HMHB’s motion for summary judgment, the District Court disregarded the Appellants’ original pro se complaint and amended pro se complaint, and examined the motion solely with regard to the issues contained in the Appellants’ second amended complaint. On appeal, the Appellants maintain that the District Court erred when it failed to consider their first two complaints. However, the District Court directed the Appellants to file a second amended complaint because neither their original complaint, nor their amended complaint, was in compliance with Rule 8(a), M.R.Civ.P., which requires pleadings to contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Accordingly, we conclude that the District Court properly confined its review of HMHB’s summary judgment motion to the issues contained in the Appellants’ second amended complaint.
ISSUE 1
¶13 Did the District Court err in granting HMHB’s motion for summary judgment?
¶14 The Appellants contend that the District Court erred in granting HMHB’s motion for summary judgment. Specifically, the Appellants assert that: (1) the Agreements were void under § 39-3-208, MCA (1993), of the wage and hour laws, which provides that contracts between an employer and an employee may not violate, evade or circumvent the wage and hour laws; and (2) the Agreements were not supported by sufficient consideration. HMHB counters that the District Court properly granted its summary judgment motion, as no material facts remained in dispute regarding the validity of the Agreements.
¶15 Rule 56, M.R.Civ.P., addresses motions for summary judgment. Pursuant to Rule 56(c), M.R.Civ.P., summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The initial burden rests upon the moving party, who may rely upon the pleadings, depositions, answers to interrogatories, admissions on file and affidavits to establish that no genuine issue exists as to any material fact. Joyner v. Onstad (1989), 240 Mont. 362, 364, 783 P.2d 1383, 1385. The burden then shifts to the party opposing the motion. Joyner, 240 Mont. at 364, 783 P.2d at 1385. That is, the adverse party must respond to the summary judgment motion, and “set forth specific facts showing that there is a genuine issue for trial.” Rule 56(e), M.R.Civ.P. If the adverse party does not so respond, “summary judgment, if appropriate, shall be entered against the adverse party.” Rule 56(e), M.R.Civ.P.
¶16 This Court has repeatedly addressed this issue, and held that summary judgment is properly granted to the moving party if the adverse party fails to respond with specific facts showing that a genuine issue exists as to a material fact. See Joyner, 240 Mont. at 364, 783 P.2d at 1385, and Payne v. Stratman (1987), 229 Mont. 377, 380, 747 P.2d 210, 212. We have further noted that evidence sufficient to raise a genuine issue of material fact, “must be in proper form and conclusions of law will not suffice; the proffered evidence must be material and of a substantial nature, not fanciful, frivolous, gauzy or merely suspicious.” Morales v. Tuomi (1985), 214 Mont. 419, 424, 693 P.2d 532, 535.
¶17 In tlie instant case, HMHB’s motion requested that the District Court grant it summary judgment because, pursuant to the Agreements, the Appellants relinquished any claims they may have had against HMHB, its employees, and directors. HMHB submitted copies of the Agreements in support of its motion. Therefore, the burden shifted to the Appellants to respond to HMHB’s motion. See Joyner, 240 Mont. at 364, 783 P.2d at 1385. The Appellants responded by submitting a responsive brief and two affidavits. The first affidavit was filed by Zimmer on October 30, 1997. The second affidavit was filed by the Appellants’ attorney, Eric Rasmusson, on March 5, 1998.
¶18 The District Court considered the claims in the Appellants’ second amended complaint and determined that while Zimmer’s affidavit made general allegations regarding both wage and hour violations and insufficient consideration, her affidavit did not set forth specific facts to support either of those claims. Accordingly, the District Court determined that Zimmer’s affidavit failed to prove the existence of any genuine issue of material fact with regard to the validity of the Agreements. As such, the District Court concluded that Zimmer’s affidavit was unable to resist HMHB’s motion for summary judgment.
¶19 The District Court considered Rasmusson’s affidavit in the context of this Court’s decision in Morales v. Tuomi, 214 Mont. at 424, 693 P.2d at 535, in which we noted that: “[A]s with any other affiant under Rule 56, [M.R.Civ.P.] an attorney’s affidavit is admissible only to prove facts that are within his personal knowledge and as to which he is competent to testify; an affidavit stating what the attorney believes or intends to prove at trial will be disregarded.” The District Court examined Rasmusson’s affidavit and found that it was not a statement of facts within Rasmusson’s personal knowledge, but merely a reflection of Rasmusson’s belief that the Agreements may have violated the wage and hour provisions. Consequently, the District Court concluded that, pursuant to Morales, Rasmusson’s affidavit was insufficient to resist HMHB’s motion for summary judgment,.
¶20 Upon careful review of the Zimmer and Rasmusson affidavits, we are not persuaded that the District Court erred in concluding that the affidavits were insufficient to resist HMHB’s motion for summary judgment. That is, neither of the affidavits were able to successfully demonstrate that a genuine issue of material fact existed with regard to the validity of the Agreements. Further, in the absence of the affidavits, the remaining record on file in this case was also insufficient to resist a summary judgment motion. Finally, we note that the District Court rendered its decision regarding HMHB’s motion for summary judgment on December 9,1998, over two years after the date on which the Appellants filed their second amended complaint. That is, the Appellants had over two years to set forth facts sufficient to resist summary judgment. The Appellants were unable to do so. Accordingly, we conclude that the District Court did not err when it granted HMHB’s motion for summary judgment.
ISSUE 2
¶21 Did HMHB violate the Separation and Release Agreements by moving for summary judgment?
¶22 On appeal, the Appellants maintain that HMHB violated the Agreements and acted in bad faith when it moved for summary judgment because Section Three of the Agreements reserved the Appellants’ right to file claims for unpaid wages and benefits. The Appellants further maintain that because HMHB violated the Agreements, they are entitled to recover attorneys’ fees and costs from HMHB.
¶23 However, the Appellants did not bring the above contention before the District Court in opposition to HMHB’s motion for summary judgment. Accordingly, the Appellants raise this issue for the first time on appeal. We have repeatedly stated that we will not address issues raised for the first time on appeal. See State v. Kober, 1999 MT 264, ¶ 11, 296 Mont. 425, ¶ 11, 989 P.2d 399, ¶ 11. As such, we decline to address the Appellants’ contention that, by moving for summary judgment, HMHB violated Section Three of the Agreements.
ISSUE 3
¶24 Are the Appellants entitled to recover attorneys’ fees and costs pursuant to § 39-3-214, MCA (1999)?
¶25 Section 39-3-214, MCA (1999), of the wage and hour laws, provides, in pertinent part:
(1) Whenever it is necessary for the employee to enter or maintain a suit at law for the recovery or collection of wages due as provided for by this part, a resulting judgment must include a reasonable attorney’s fee in favor of the successful party, to be taxed as part of the costs in the case.
(2) Any judgment for the plaintiff in a proceeding pursuant to this part must include all costs reasonably incurred in connection with the proceeding, including attorneys’ fees.
¶26 This Court has interpreted § 39-3-214, MCA, as follows: “It is clear to us from the plain meaning of the words utilized in § 39-3-214, MCA, that the legislature’s intent in passing the statute was to provide an employee who wins a judgment for wages due against an employer a vehicle by which to receive attorneys fees and thus be made whole.” Glaspey v. Workman (1988), 230 Mont. 307, 309, 749 P.2d 1083, 1084 (emphasis added). In the instant case, the Appellants were unsuccessful in asserting wage and hour claims against HMHB. Consequently, the Appellants are unable to recover attorneys’ fees and costs under § 39-3-214, MCA (1999).
¶27 For the foregoing reasons, the judgment of the District Court is affirmed.
CHIEF JUSTICE GRAY, JUSTICES COTTER, RICE and LEAPHART concur.
|
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JUSTICE REGNIER
delivered the Opinion of the Court.
¶1 Claimant Michael Abfalder (“Abfalder”) injured his back while working for Cereal Food Processors (“Cereal Food”) in 1994 and was diagnosed with an occupational disease. Cereal Food’s insurer at that time, Nationwide Mutual Fire Insurance Company (“Nationwide”), found the occupational disease compensable. Abfalder suffered several flare-ups and other injuries, subsequent to his original 1994 injury. Travelers Indemnity Company of Illinois (“Travelers”) served as Cereal Food’s insurer at the time of Abfalder’s flare-ups and subsequent injuries. Travelers seeks indemnification from Nationwide for Abfalder’s post-1994 injuries.
¶2 The Workers’ Compensation Court held that Travelers is entitled to indemnification by Nationwide. Nationwide appeals. We affirm the judgment of the Workers’ Compensation Court.
¶3 We address the following issues on appeal:
¶4 1. Was the Workers’ Compensation Court’s decision supported by a correct application of the law?
¶5 2. Was there substantial credible evidence to support the factual determinations made by the Workers’ Compensation Court?
BACKGROUND
¶6 Abfalder worked as an employee of Cereal Food. In 1994, Abfalder’s job duties required him to lift 50-pound bags from a conveyer belt and carry them three feet to a pallet. He worked 10-hour days. Abfalder was first injured on the job in 1994. He was diagnosed as suffering an occupational back disease as a result of his continuous heavy lifting. Nationwide was the insurer for Cereal Food at the time of Abfalder’s initial injury in 1994, and Nationwide accepted Abfalder’s claim.
¶7 Abfalder continued working, with restrictions imposed by the doctor. Despite this, he suffered multiple flare-ups of his injury, which were found to be compensable by Cereal Food’s subsequent insurer, Travelers. After each flare-up, Abfalder was able to return to work, with restrictions. In December of 1999, Cereal Food imposed additional physical requirements on Abfalder. Since these additional requirements were outside of Abfalder’s restrictions, Cereal Food laid him off.
¶8 The parties to this case do not dispute that Abfalder’s claim is compensable. At issue is whether Nationwide or Travelers is liable for compensating Abfalder for his post-1994 injuries. The Workers’ Compensation Court held Nationwide was liable for Abfalder’s condition, and ordered Nationwide to indemnify Travelers. Nationwide appeals from that judgment.
STANDARD OF REVIEW
¶9 We review a decision of the Workers’ Compensation Court to determine whether that court correctly interpreted the law as it applies to the facts of the case at issue. Lockhart v. New Hampshire Ins. Co., 1999 MT 205, ¶ 13, 295 Mont. 467, ¶ 13, 984 P.2d 744, ¶ 13. When determining whether the Workers’ Compensation Court’s conclusions of law are correct, this Court’s review is plenary. Thompson v. CIGNA, 2000 MT 306, ¶ 17, 302 Mont. 399, ¶ 17, 14 P.3d 1222, ¶ 17.
¶10 We review the Workers’ Compensation Court’s findings of fact to determine if they Eire supported by substantial credible evidence, not whether there may be contrary findings. Caekaert v. State Comp. Mut. Ins. Fund (1994), 268 Mont. 105, 110, 885 P.2d 495, 498. We will not substitute our judgment for that of the Workers’ Compensation Court as to the weight of evidence on questions of fact. Mennis v. Anderson Steel Supply (1992), 255 Mont. 180, 184, 841 P.2d 528, 530. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this Court cannot overturn them. See Perry v. Tomahawk Transp. (1987), 226 Mont. 318, 320, 735 P.2d 308, 310.
DISCUSSION
ISSUE ONE
¶11 Was the Workers’ Compensation Court’s decision supported by a correct application of the law?
¶12 When an employee has been disabled due to an occupational disease, and suffers a second injury or disability, the first insurer is liable for the claim only if the disability or injury is a recurrence of the initial disability or injury. Caekaert, 268 Mont. at 111, 885 P.2d at 499. This rule is known as the “last injurious exposure doctrine.” Caekaert, 268 Mont. at 111, 885 P.2d at 499. In Montana, this doctrine is codified at § 39-72-303, MCA. Section 39-72-303, MCA, states, in relevant part:
Which employer liable. (1) Where compensation is payable for an occupational disease, the only employer liable is the employer in whose employment the employee was last injuriously exposed to the hazard of the disease.
(2) When there is more than one insurer and only one employer at the time the employee was injuriously exposed to the hazard of the disease, the liability rests with the insurer providing coverage at the earlier of:
(a) the time the occupational disease was first diagnosed by a treating physician or medical panel; or
(b) the time the employee knew or should have known that the condition was the result of an occupational disease.
¶13 Nationwide relies on Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405, and its progeny, Stangler v. Anderson Meyers Drilling Co. (1987), 229 Mont. 251, 746 P.2d 99, in support of its position. In both cases, claimants were injured on multiple occasions, while working for different employers. This Court was asked to determine whether the claimants had reached maximum healing, which was key to the determination of which employer’s insurer was liable. In both cases, we found that the claimants reached maximum healing after their first injuries and before their alleged second injuries, thus holding that the first insurers were not responsible for the second injuries.
¶14 Belton and Stangler, however, are distinguishable from the present case. First, we note that both Belton and Stangler involved two employers, whereas here, only one employer is involved. Second, Belton and Stangler have been superceded by subsection (2) of § 39-72-303, MCA, which the Legislature added to the statute in 1993. As we stated above, § 39-72-303, MCA, applies to situations in which there is more than one insurer but only one employer, as is the case here. Furthermore, pursuant to § 39-72-303(2), MCA, liability rests with the insurer providing coverage at the earlier of the time the occupational disease was first diagnosed or the time the employee knew or should have known that the condition was the result of an occupational disease.
¶15 Nationwide also contends that the Workers’ Compensation Court erred by improperly shifting the burden of proving the cause of Abfalder’s disability to Nationwide. Nationwide argues that under Belton, the burden of proof is placed on the insurance company which is at risk at the time of the accident in which a compensable injury is claimed. Belton, 202 Mont. at 392, 658 P.2d at 409-10. Nationwide argues further that, “When a subsequent injury has arguably aggravated a preexisting condition, the second insurer avoids liability for that condition only upon proving the claimant had not reached maximum medical healing with respect to his prior workers’ compensation injury or that the second injury did not in fact permanently aggravate the underlying condition for which the prior insurer was liable.” Stacks v. Travelers Property Casualty, 2001 MTWCC 9, ¶ 108.
¶16 Nationwide is correct regarding upon which party the burden of proof is placed. However, the record in this case does not demonstrate that the Workers’ Compensation Court improperly placed the burden on Nationwide. The Workers’ Compensation Court heard extensive evidence from both Nationwide and Travelers regarding Abfalder’s injuries. Nationwide has not shown that Travelers failed to meet its burden of proof. We find Nationwide’s contention on this issue to be without merit.
¶17 Nationwide also argues that the Workers’ Compensation Court erred by ruling that an occupational disease is continuing and that no new occupational disease can develop after maximum medical improvement is reached. Nationwide, however, mischaracterizes the Workers’ Compensation Court’s ruling. In its Order, the Workers’ Compensation Court wrote:
Nationwide’s argument that the original disease ended upon claimant reaching MMI in 1995 and that a new disease began thereafter makes little sense in the context of this case. Since the disease was a continuous process involving repetitive trauma, under that theory the claimant would reach MMI at the end of each day and a new occupational disease would commence the next morning.
¶18 The Workers’ Compensation Court did not hold that no new occupational disease can develop after maximum medical healing is reached. The Workers’ Compensation Court made a determination that in this case, Abfalder’s condition was caused by repetitive trauma, and that he did not suffer from a new disease subsequent to healing from his 1994 injury. As we discussed above, the facts of Abfalder’s case support this conclusion of the Workers’ Compensation Court.
ISSUE TWO
¶19 Was there substantial credible evidence to support the factual determinations made by the Workers’ Compensation Court?
¶20 In its brief, Nationwide contends that the Workers’ Compensation Court disregarded testimony of Abfalder, Abfalder’s wife, and Doctors Schumann and Rizzolo. We restate that we review the Workers’ Compensation Court’s findings of fact to determine if they are supported by substantial credible evidence, not whether there may be contrary findings. Caekaert, 268 Mont. at 110, 885 P.2d at 498. Furthermore, the Workers’ Compensation Court, as the finder of fact, is in the best position to assess witnesses’ credibility and testimony. Kloepfer v. Lumbermen’s Mut. Cas. Co. (1996), 276 Mont. 495, 498, 916 P.2d 1310, 1312.
¶21 Here, the Workers’ Compensation Court did address the testimony of the Abfalders and both doctors, albeit not to the extent Nationwide may have liked. Nationwide points out that the Workers’ Compensation Court did not discuss the Abfalders’ testimony or their credibility. However, as we have stated, it is not our job to assess whether there may be contrary findings.
¶22 The record is replete with facts supporting the Workers’ Compensation Court’s factual findings. For example, Dr. Schumann, Abfalder’s treating physician, testified that Abfalder’s post-1994 claims only had temporary effects on the pre-existing degenerative condition. Despite farther injuries and flare-ups, Abfalder’s impairment has not increased since 1995. The Workers’ Compensation Court also discussed the testimony of Dr. Rizzolo, an orthopedic surgeon who saw Abfalder at the request of Travelers, noting that Dr. Rizzolo stated that Abfalder’s subsequent injuries seem to materially, substantially, and permanently aggravate his condition. Furthermore, Abfalder was not laid off due to any increase in the restriction or impairment, or to deterioration of his condition; he was laid off because Cereal Food increased his work requirements.
¶23 We affirm.
CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER and RICE concur.
|
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] |
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