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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Raymond Herrman (Herrman) appeals from his conviction of driving under the influence of alcohol following a jury tried in the Montana Thirteenth Judicial District Court, Yellowstone County. We dismiss Herrman’s claim of ineffective assistance of counsel and overrule State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, to the extent that it is inconsistent with this opinion. We decline to address whether the District Court abused its discretion in denying Herrman’s motions for mistrial. ¶2 The following issues are presented on appeal: ¶3 1. Did Herrman receive constitutionally effective assistance of counsel dining voir dire? ¶4 2. Did the District Court abuse its discretion in denying Herrman’s motions for mistrial? Factual and Procedural Background ¶5 On August 18,2000, Herrman was arrested in Billings, Montana, by a city police officer. He was subsequently charged with the offense of Driving Under the Influence of Alcohol in violation of § 61-8-401, MCA. Herrman was represented at trial by a Deputy Yellowstone County Public Defender and by the Chief Deputy Yellowstone County Public Defender. The jury found Herrman guilty of DUI and the District Court sentenced Herrman to ten years in the Montana State Prison. As this was Herrman’s fourth felony conviction of driving under the influence of alcohol, the court designated Herrman as a persistent felony offender. Herrman appeals his conviction. ¶6 The circumstances giving rise to this appeal occurred at the beginning of Herrman’s trial, specifically, during his initial entrance into the courtroom and during jury voir dire. Prior to the commencement of voir dire, Herrman was brought into the courtroom, in front of prospective jury members, wearing belly chains and handcuffs, which he wore for approximately ten minutes. Immediately following his entrance into the courtroom, Herrman’s counsel moved for a mistrial, arguing that his appearance would affect the ability of the jurors to be impartial. The District Court denied the motion for mistrial and directed counsel to address the issue during voir dire. During voir dire, the State and defense counsel questioned the jury panelists about the incident. Each panelist responded that seeing Herrman in restraints would not affect his or her ability to be fair and impartial. At the close of trial, while the jury was in deliberations, defense counsel renewed the motion for a mistrial. The District Court reserved its ruling pending a poll of each jury member. After the jury had concluded deliberations, and prior to the reading of the verdict, the District Court asked each member of the jury whether seeing Herrman in chains had affected his or her deliberations “regarding his guilt or innocence.” Each juror answered in the negative. Consequently, the court denied the motion for a mistrial, finding that, given the jurors’ response, no indication of prejudice existed. ¶7 In all, twenty-four panelists were summoned in Herrman’s case. In addition to Keith Montgomery, Denise Brown, Jack Byrnes, and Mindy Crain, the four panelists specifically at issue here, the remaining twenty panelists included the following: Sidney Susler, a former driver’s education teacher whose son-in-law is a federal marshal; Cheryl Galt, whose son is in law enforcement; Kathryn Gunderson, whose husband is an agent in charge of the local Bureau of Alcohol, Tobacco and Firearms; Cari Baxter who lives next door to a police officer; Randall Fitch, whose good friend is an agent for the FBI; Patricia Kroger, who works for the federal fleet center and who is required sometimes to investigate fatal accidents involving alcohol; and Vivian Neumann, who once took her son’s driver’s license away and sold his car after he violated the terms of his minor in possession probation. ¶8 During voir dire, the prosecutor established that panelist Keith Montgomery was the Yellowstone County Coroner and knew the arresting officer. The prosecutor also elicited that Montgomery had strong feelings about DUIs; that he had dealt with the DUI Enforcement Division; that he belonged to two organizations that deal with DUIs and DUI prevention (Your Choice and MADD); that he teaches high school students about DUI prevention and about the accidents and injuries that result from DUIs; that he would try to set aside his strong feelings and be a fair and impartial juror; that he, nonetheless, “didn’t know” about being impartial and would have to see the facts; and that he had seen a lot of DUI fatalities over his twelve years experience as a coroner. ¶9 Montgomery indicated that he would try to leave behind his prior experiences and strong feelings. As defense counsel had done with each panelist, she inquired of Montgomery regarding the presumption of innocence and he agreed with the principle. Defense counsel did not challenge Montgomery for cause, although she later challenged him peremptorily. ¶10 The prosecutor also established that panelist Jack Byrnes was a former law enforcement officer in California; that he had been involved with “quite a few” DUI situations as a former member of law enforcement; that it was Byrnes’ opinion “that a policeman doesn’t stop someone for just no reason ... [tjhere had to be a reason for them to be stopped or an accident or something;” that the “person is not arrested for drunk driving or driving under the influence without reason;” thát Byrnes would not promise to acquit if the State did not prove defendant’s guilt beyond a reasonable doubt; and that Byrnes would try to be fair. ¶11 Defense counsel got Byrnes to again admit his inclination that Herrman would not be in court unless he had done something, but that he, Byrnes, would try to acquit if the State did not prove its case. Defense counsel did not challenge Byrnes for cause nor did she ask bim any more questions; however, she did use a peremptory challenge to exclude Byrnes from the panel. ¶12 With respect to panelist Denise Brown, the prosecutor elicited that Brown’s husband was a police officer; that the fact he was a police officer and that witnesses in the case were members of the police department was “probably” going to affect her ability to be fair and impartial, but that she would try and that she could follow the court’s instruction. Defense counsel asked a couple of questions about whether Brown realized that police officers are human beings and make mistakes, but did not otherwise challenge Brown peremptorily or for cause, and Brown sat as one of the jurors. ¶13 Panelist Mindy Crain responded to the prosecutor that she believed that she could follow the law, but that she did not feel she could be impartial because her father drove a wrecker. Crain stated that she had “personally seen too many accidents from drinking and driving and what happens to people.” She also noted that her father had come home and relayed stories to his family about how he had difficulties getting people out of cars from accidents in which they had been involved. Crain answered that she “could try” to be fair. ¶14 Defense counsel, again, elicited from Crain that she would have a hard time being impartial because of all the stories she had heard about car accidents from her father. Crain stated that she would try to make her decision based on the facts presented. Counsel did not challenge Crain for cause, instead using a peremptory challenge to strike her from the panel. ¶15 Summarizing the foregoing, although defense counsel did not challenge panel members Montgomery, Byrnes, Brown or Crain for cause, she did remove Montgomery, Byrnes, and Crain with peremptory strikes. Defense counsel then used her remaining three peremptory challenges to strike panel member Vivian Neumann, who stated that her son was caught driving drunk and that being strict was good for him; panel member Ronald Smith who knew the prosecutor and his family socially; and panel member Kathryn Gunderson, whose husband worked in federal law enforcement, unrelated to DUIs. ¶16 The jury that was finally impaneled included the following individuals discussed previously: Sidney Susler, Cheryl Galt; Cari Baxter; Randall Finch; Patricia Kroger; and Denise Brown. Standard of Review ¶17 In considering ineffective assistance of counsel claims on direct appeal, we apply 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 Dawson v. State, 2000 MT 219, ¶ 20, 301 Mont. 135, ¶ 20, 10 P.3d 49, ¶ 20. In order to establish an ineffective assistance of counsel claim, a defendant must prove that: (1) the performance of defendant’s counsel was deficient; and (2) counsel’s deficient performance was prejudicial. See State v. Whitlow, 2001 MT 208, ¶ 17, 306 Mont. 339, ¶ 17, 33 P.3d 877, ¶ 17. ¶18 Claims of ineffective assistance of counsel are mixed questions of law and fact. See State v. Turner, 2000 MT 270, ¶ 47, 302 Mont. 69, ¶ 47, 12 P.3d 934, ¶ 47 (citing Strickland, 466 U.S. at 698, 104 S.Ct. at 2052, 80 L.Ed.2d at 704), (stating “both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact”). Therefore, our review is de novo. See Turner, ¶ 47 (citing Iaea v. Sunn (9th Cir. 1996), 800 F.2d 861, 864); Langford v. Day (9th Cir. 1996), 110 F.3d 1380, 1386; Strickand, 466 U.S. at 698, 104 S.Ct. at 2070, 80 L.Ed.2d at 704). Discussion I ¶19 Did Herrman receive constitutionally effective assistance of counsel during voir dire? ¶20 Relying on State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, Herrman alleges that his defense counsel rendered ineffective assistance of counsel at trial during voir dire. Specifically, he claims that defense counsel had a clear duty to ensure that he received a fair trial by a panel of impartial jurors by developing information in the record demonstrating an individual juror’s bias, and by exercising challenges for cause against those jurors expressing bias, pursuant to our holding in Chastain, 285 Mont. at 65-66, 947 P.2d at 60. He contends that four panelists expressed reservations about their ability to be impartial and should have been challenged for cause. He asserts, however, that defense counsel failed to either ask the four panelists follow-up questions concerning their expressed reservations to be impartial, or to challenge them for cause. Herrman contends that by not doing so, defense counsel was forced to use peremptory challenges on three of the four panelists, thereby leaving some individuals as jurors who would have been proper subjects for the use of peremptory challenges. He thus requests this Court to follow Chastain and reverse his conviction because, due to counsel’s error, there was at least one juror on the jury who could not fairly assess his innocence or guilt. ¶21 In response, the State contends that the evidence against Herrman was overwhelming. Consequently, the State argues that the second prong of the Strickland test is not met because counsel’s performance was not prejudicial in light of the overwhelming evidence of guilt. Relying on Dawson and Strickland, the State maintains we should only address the second prong of the Strickland test, as this matter can be resolved on that basis alone. Therefore, the State claims that it is unnecessary for us to determine whether counsel’s performance was deficient during voir dire. Moreover, the State maintains that the facts presented in this case are distinguishable from those in Chastain. ¶22 It is incontrovertible that jury impartiality goes to the very integrity of our justice system, and that the right to an impartial jury is so essential to our conception of a fair trial that its violation cannot be considered harmless error. See State v. LaMere, 2000 MT 45, ¶ 50, 298 Mont. 358, ¶ 50, 2 P.3d 204, ¶ 50. The presence on the jury of even one juror who could not fairly assess the credibility of the witnesses must be presumed prejudicial and will result in the reversal of the conviction. Chastain, 285 Mont. at 65, 947 P.2d at 60. ¶23 The purpose of voir dire in a criminal proceeding is to determine the existence of a prospective juror’s partiality, that is, his or her bias and prejudice. This enables counsel to intelligently exercise their peremptory challenges. See State v. Kolherg (1990), 241 Mont. 105, 108, 785 P.2d 702, 704; State v. Brodniak (1986), 221 Mont. 212, 231, 718 P.2d 322, 334-35. In a non-capital case, a defendant is entitled to six peremptory challenges in addition to challenges for cause. See §§ 46-16-115 and -116, MCA. Section 46-16-115, MCA, sets forth the reasons a juror may be excused for cause. In pertinent part, it states that a district court should excuse a juror for cause when he or she has a “state of mind in reference to the case or to either of the parties that would prevent the juror from acting with entire impartiality and without prejudice to the substantial rights of either party.” Section 46-16-115(2)(j), MCA. When jurors who should have been removed for cause are not removed and must, therefore, be removed by peremptory challenge, the party wrongfully denied the challenge for cause effectively loses one of the peremptory challenges to which he is entitled by law. See State v. Good, 2002 MT 59, ¶ 42, 309 Mont. 113, ¶ 42, 43 P.3d 948, ¶ 42. ¶24 In the past, this Court has ruled that when defense counsel’s ineffective assistance of counsel is apparent from the record alone, reversal of the defendant’s conviction is appropriate. See Chastain, 285 Mont. at 64-66, 947 P.2d at 59-60. Conversely, if the Court cannot make that determination from the record before it, then it must decline to proceed further and allow the defendant to raise his ineffective assistance of counsel claim in a petition for postconviction relief filed under §§ 46-21-101 through -105, MCA. See State v. Whitlow, 2001 MT 208, ¶ 16, 306 Mont. 339, ¶ 16, 33 P.3d 877, ¶ 16; Hagen v. State, 1999 MT 8, ¶ 12, 293 Mont. 60, ¶ 12, 973 P.2d 233, ¶ 12. ¶25 Chastain involved charges of sexual assault and sexual intercourse without consent. During voir dire examination, a prospective juror indicated that he had strong feelings about the case that were not favorable to Chastain. Defense counsel did not challenge this prospective juror for cause nor did counsel exercise a peremptory challenge to the juror. A second prospective juror indicated that she had read about the case and that had “evoke[d] some strong feelings.” Counsel did not challenge this prospective juror, and she served on the jury. ¶26 Chastain appealed contending that his counsel was ineffective for not having challenged these two prospective jurors either for cause or peremptorily. The Court held that the statements of both prospective jurors demanded, at a minimum, additional inquiry. Further, the Court observed that there was nothing in the record reflecting a tactical reason for counsel not challenging either of the prospective jurors and concluded that, “[wjhere, 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. Based on the information contained in the record, we concluded that Chastain had received ineffective assistance of counsel and reversed his conviction. We máde this determination from the existing record on appeal and without the necessity of farther evidence by way of a postconviction proceeding. ¶27 In Whitlow, Defendant was convicted of aggravated kidnaping and sexual intercourse without consent. Defendant did not raise an ineffective assistance of counsel claim in his appeal; however, he subsequently filed a petition for postconviction relief claiming that he received ineffective assistance of counsel because his counsel had failed to ask follow-up questions during voir dire. The State responded that Defendant’s petition was barred because, as established in Chastain, Defendant should have raised his claim of ineffective assistance of counsel on direct appeal. Defendant countered that, unlike Chastain, his claims for ineffective assistance of counsel required the development of facts outside the trial record; therefore, he could not have brought his claim on direct appeal. Ultimately, we agreed with the Defendant and in so doing, distinguished Whitlow’s claim for ineffective assistance of counsel from the claim in Chastain. We noted that, unlike defense counsel’s failure to ask follow-up inquiries in Chastain, which could not be reasonably explained, Whitlow’s defense counsel’s decision not to further question prospective jurors may have been part of his trial strategy, and therefore, was capable of a satisfactory explanation. We concluded that Whitlow would have to go beyond the trial record in order to prove his ineffective assistance of counsel claim. See Whitlow, ¶ 21. ¶28 After reviewing our decisions in Chastain and Whitlow, we conclude 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. Although lawyers will, on the record, state their reasons for challenging a juror for cause, they do not state their reasons for not challenging a juror. A lawyer’s rationale for not challenging a juror for cause is strictly a matter of internal thought processes or, perhaps, the subject of an off-the-record discussion between the lawyer and his client. There can be any number of reasons, not apparent from the record, why a lawyer will choose to not challenge a juror. As we noted in Whitlow: “Trial counsel could have known other facts about these prospective jurors which led counsel to reasonably believe that, despite their possible prejudices, placing these jurors on the panel would be favorable to his client.” Whitlow, ¶ 21. ¶29 In preparing for a trial, lawyers often review the list of prospective jurors with other lawyers or residents of the forum city to get a feel for the named individuals in terms of their attitudes, predilections and beliefs. Some lawyers will have the juror questionnaires analyzed by a hand writing analyst to obtain a psychological profile. The results of such inquiries and analyses are all outside the record and yet they factor into the lawyer’s decision as to whether to challenge a juror. A prospective juror, responding to an inquiry during voir dire, may express a certain unfavorable bias or disclose a kinship to law enforcement, for example. The lawyer, nonetheless, in the exercise of his or her professional judgment, may determine that the ostensibly jaundiced response is outweighed by some more favorable off-the-record information that he or she has about that individual. Perhaps the lawyer conferred with his client and advised challenging the juror but the client said “no, I like the person’s body language, I want him on my jury.” ¶30 No doubt there are other examples of the behind the scenes machinations of counsel and client during the jury selection process. The point is that it 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. ¶31 The instant case presents another consideration not present in Chastain. That is, Herrman’s counsel, after declining to challenge the four jurors in question for cause, did use peremptory challenges against three of these prospective jurors. This of course gives rise to the argument that his counsel could have saved three peremptory challenges by astutely exercising challenges for cause. Herrman argues that there is no tactic that would justify defense counsel removing a potential juror peremptorily where that same person likely could have been successfully challenged “for cause.” This contention does not withstand scrutiny. It ignores the fact that peremptory challenges involve a very different dynamic than challenges for cause. Challenges for cause are exercised first, they are unlimited and there is no real advantage to the timing of the challenge. As we recognized in State v. Russell, 2001 MT 278, ¶ 19, 307 Mont. 322, ¶ 19, 37 P.3d 678, ¶ 19, peremptory challenges are essentially a matter of trial strategy. Peremptory challenges are exercised after the jury panel has been passed “for cause;” they are limited to six per side in a non-capital case, § 46-16-116, MCA, and they are exercised on a rotation basis: the State first, then the defendant, then the State, and so on. When counsel is exercising peremptory challenges, he or she is engaging in a chess game with opposing counsel. In exercising each challenge, he or she must keep an eye on the end result. That is, which twelve individuals are going to end up constituting the jury. This entails considerable prioritizing. Counsel must keep one eye on who is eliminated by virtue of his or her challenge and the other eye on the composition of the remaining twelve jurors. Counsel also has to second guess which juror will be challenged by the State in its next move. Thus, the reasons for exercising a peremptory challenge need not be the same reasons that would have prompted a challenge for cause. For example, counsel’s peremptory challenge to 65-year-old juror Andy may not be based on Andy’s answers to voir dire questions (which may have given rise to a challenge for cause), but rather on the fact that counsel would prefer to have a jury composed of young men rather than older men and, in eliminating Andy from the list, 28-year-old Bruce will be moved into the top twelve who will make up the final jury. ¶32 Again, without the benefit of a postconviction hearing, we cannot conclude that there is no strategic plan or tactic that would justify defense counsel removing a potential juror peremptorily where that same person likely could have been successfully challenged for cause. ¶33 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. In State v. St. John, 2001 MT 1, 304 Mont. 47, 15 P.3d 970 (overruled on other grounds by State v. Brister, 2002 MT 13, 308 Mont. 154, 41 P.3d 314), the record was silent as to why St. John’s counsel failed to act in the challenged manner. We held: ‘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; see also 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. As we did in St. John and Whitlow, we conclude that Herrman’s claims for ineffective assistance of counsel cannot be addressed without considering matters outside the record. That is, without considering why counsel did not challenge the jurors for cause. ¶34 We cannot address Herrman’s ineffective assistance of counsel claims without considering matters outside the record. His contentions regarding the ineffective assistance of counsel would be more appropriately raised in a petition for postconviction relief. Therefore, we dismiss Herrman’s claim of ineffective assistance of counsel. II ¶35 Did the District Court abuse its discretion in denying Herrman’s motions for mistrial? ¶36 A district court’s determination of whether to grant a motion for a mistrial must be based on whether the defendant has been denied a fair and impartial trial. State v. Soraich, 1999 MT 87, ¶ 17, 294 Mont. 175, ¶ 17, 979 P.2d 206, ¶ 17. This Court’s standard of review of a grant or denial of a motion for mistrial is whether the court abused its discretion. See Harding v. Deiss, 2000 MT 169, ¶ 19, 300 Mont. 312, ¶ 19, 3 P.3d 1286, ¶ 19; Soraich, ¶ 17. ¶37 Herrman argues that the District Court erred in denying his motion for mistrial because the jury’s ability to be impartial was affected when jurors observed him being escorted into the courtroom in belly chains and handcuffs. He contends that the jury panel included several people who expressed bias in favor of law enforcement. Herrman maintains that when the jurors observed him in shackles their ability to be impartial was significantly impaired and therefore, his constitutional right to an impartial jury was violated. Herrman, however, ties this second issue to the first and contends that, “even though this issue [shackling] might be regarded as insufficient in and of itself to require a reversal, it should be so regarded when combined with issue number I.” Since we have determined that issue number one (ineffective assistance of counsel during jury selection) cannot be addressed based upon the record before us, we decline to address issue number two as framed by Herrman. ¶38 Nevertheless, this Court would be remiss in not expressing alarm that a defendant, charged with a nonviolent offense, was brought into a courtroom in belly chains and handcuffs. The court record does not reveal why Herrman was restrained. However, we believe it is better for a trial court to establish an essential state interest for the shackling before the defendant is brought into the courtroom in shackles. See Rhoden v. Rowland (9th Cir. 1999), 172 F.3d 633. In some situations, “sufficient cause for this level of security [may] be found in the State’s need to maintain custody over defendants who had been denied bail after an individualized determination that their presence at trial could not otherwise be ensured.” Holbrook v. Flynn (1986), 475 U.S. 560, 571, 106 S.Ct.1340, 1347, 89 L.Ed.2d 525, 536. When a defendant or his or her crime is particularly violent, the court may require him or her to be restrained in some fashion; however, even then, the court should make every reasonable effort to assure that the restraints are not visible to the jury. ¶39 In conclusion, we dismiss Herrman’s claim of ineffective assistance of counsel and overrule State v. Chastain (1997), 285 Mont. 61, 947 P.2d 57, to the extent that it is inconsistent with this opinion. We decline to address whether the District Court abused its discretion in denying Herrman’s motion for a mistrial. JUSTICES COTTER, REGNIER, NELSON and RICE concur.
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CHIEF JUSTICE TURNAGE delivered the Opinion of the Court. ¶1 In proceedings before the Fourth Judicial District Court, Missoula County, Stephen Leroy Cooney (hereinafter Cooney) was committed to the custody of the Director of the Department of Public Health and Human Services (hereinafter DPHHS) pursuant to the provisions of the Mental Competency Chapter of the Montana Rules of Criminal Procedure. Cooney appeals. We affirm. ISSUE ¶2 The issue before the Court is whether the District Court erred in committing Cooney to the continuing custody of the Director of the DPHHS under the provisions of § 46-14-301(3) and (4), MCA. BACKGROUND ¶3 On May 29,1996, Cooney was charged before the Fourth Judicial District Court, Missoula County, with felony stalking, a violation of § 45-5-220, MCA. Cooney was also charged with violations of protective orders issued by the District Court in Powell County and the county court of Denver County, Colorado, which had resulted from a misdemeanor stalking conviction the year before. ¶4 Cooney’s history of stalking isa protracted one. His pursuit of the woman who was the subject of the 1996 felony charge began in 1989 and continued even after Cooney had served a one-year sentence in county jail on misdemeanor stalking charges. The record also reflects that he is known to have pursued at least three other women at other times. ¶5 Expert psychiatric testimony offered at the dispositional hearing indicated that Cooney’s pattern of behavior stems from an erotomanic type delusional disorder, a mental disease in which the afflicted person becomes obsessed with delusional beliefs that another person is in love with him. This disorder causes intermittent misperceptions of reality related to the delusional beliefs, which in Cooney’s case include a conviction that his victim is infatuated with him, that she has gone to extraordinary lengths to initiate and maintain contact with him, and that she wants to marry him. The prognosis for successfully treating this kind of delusional disorder is, unfortunately, very poor. It is especially difficult to eradicate the delusional beliefs of individuals who, like Cooney, have maintained them in a stable form over a long period of time. ¶6 At his arraignment for the felony stalking charge, Cooney requested a sixty-day psychiatric evaluation at the Montana State Hospital in Warm Springs, Montana, and this request was granted. Based on a report submitted by the state hospital, the District Court initially found that Cooney was not fit to stand trial and committed him to the custody of the DPHHS. Relying on a subsequent report submitted by the hospital, the District Court later found that Cooney had regained his competency and ordered the proceedings to go forward. Under the terms of a plea agreement, Cooney entered a plea of not guilty by reason of a mental disease or defect, and the District Court again restored him to the custody of the DPHHS pending a review hearing pursuant to § 46-14-301(3), MCA. The District Court held a dispositional hearing on November 3 and 17,1997, and entered an order on January 8,1998, continuing Cooney’s commitment to the Director of the DPHHS for custody, care and treatment. DISCUSSION ¶7 Did the District Court err in committing Cooney to the continuing custody of the Director of the DPHHS under the provisions of § 46-14-301(3) and (4), MCA? ¶8 Conclusions of law made by the District Court are reviewable de novo. Public Employees’ Ass’n v. Department of Transp., 1998 MT 17, ¶ 8, [287 Mont. 229], 954 P.2d 21, ¶ 8. Findings of fact made by the District Court sitting as the trier of fact are set aside only where they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. A court’s findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. State v. Woods (1997), 285 Mont. 46, 53, 945 P.2d 918, 922. ¶9 The District Court’s authority to order Cooney into the custody of the Director of the DPHHS is found in § 46-14-301, MCA, which reads in pertinent part: (3) A person committed to the custody of the director of the department of public health and human services must have a hearing within 180 days of confinement to determine the person’s present mental condition and whether the person must be discharged or released or whether the commitment may be extended because the person continues to suffer from a mental disease or defect that renders the person a danger to the person or others ... The hearing is a civil proceeding, and the burden is upon the state to prove by clear and convincing evidence that the person may not be safely released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of: (a) serious bodily injury or death to the person or others; (b) an immediate threat of physical injury to the person or others; or (c) substantial property damage. (4) According to the determination of the court upon the hearing, the person must be discharged or released on conditions the court determines to be necessary or must be committed to the custody of the director of the department of public health and human services to be placed in an appropriate mental health facility for custody, care, and treatment. “Serious bodily injury” as that term is used in § 46-14-301(3)(a), MCA, is defined in § 45-2-101(64)(b), MCA, as including “serious mental illness or impairment.” ¶10 In its January 8, 1998 Order, the District Court found that Cooney continued to suffer from a mental disease or defect. The court also found that, if released, Cooney was capable of acting upon his delusional beliefs, creating a substantial risk of serious bodily injury to his victim, including bodily injury in the form of serious mental illness or impairment as set forth in § 45-2-101(64)(b), MCA. Cooney does not contest the District Court’s findings that he continues to suffer from a mental disease or defect but does contest the District Court’s finding that his condition would present a substantial risk of bodily injury to his victim if he were discharged at this time. ¶11 It is Cooney’s contention that while the evidence in the record indicates Cooney’s past behavior may have caused his victim emotional anguish or emotional trauma, the State has not met its rather substantial burden of showing by clear and convincing evidence that Cooney’s actions resulted in a diagnosable “serious mental illness” in his victim. Additionally, Cooney argues, the fact that he is likely to continue to engage in his stalking activities upon release is not sufficient to show that his victim is at risk for developing a “serious mental illness” should Cooney resume stalking her. ¶12 Our own review of the record supports a finding that Cooney’s mental condition renders him dangerous and that his release from the state hospital poses a substantial threat of serious bodily injury to the victim he has been pursuing since 1989. The record contains the evaluations and opinions of two psychiatric experts, both of whom concluded that Cooney would almost certainly continue to stalk the object of his delusions if the state’s custody and supervision were terminated. Conditional release on an out-patient basis is not a viable solution because Cooney does not believe he is ill and would not likely continue his therapy and medication outside a structured hospital environment. Cooney’s prior violation of a judicial restraining order within only four months of his release from the county jail on misdemeanor charges evidences the likelihood of his continued pursuit of this woman. ¶13 The record also clearly reflects the effect that such a pursuit would have on Cooney’s intended victim. The testimony of the staff psychiatrist at the state hospital indicates that Cooney’s stalking activities towards this woman, which have lasted over a period of approximately eight years, have already caused her a great deal of emotional anguish related to fears of her own and her family’s safety and may have already resulted in a diagnosable psychiatric condition for her. In an effort to escape Cooney’s attentions, she has resorted to a kind of self-imposed exile and has described her prior encounters with Cooney as terribly frightening and upsetting experiences. ¶14 On these facts, we hold the State has met its burden of demonstrating by clear and convincing evidence that Cooney may not be safely released from the custody of the DPHHS at this time. We there fore conclude that the District Court did not err in committing Cooney to the continuing custody of the Director of the DPHHS under the provisions of § 46-14-301(3) and (4), MCA. ¶15 Affirmed. JUSTICES TRIEWEILER, HUNT, LEAPHART and REGNIER concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Jason Hardaway (Hardaway) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, denying his motion to dismiss for lack of speedy trial, denying his motion for mistrial as a result of prejudicial comments made during jury voir dire and, in a separate matter, denying his motion for defense costs. We reverse and remand this matter to the District Court. Factual and Procedural Background ¶2 Hardaway was arrested on February 22,1995 following a high speed car chase that led to a subsequent foot chase through a field. When the officer caught up with Hardaway he was wearing a ladies slip, a black shirt and some jewelry. He was carrying a pair of jeans. The officer arrested Hardaway and transported him to the Yellowstone County Detention Facility. During an inventory search of Hardaway and the items in his possession, the detention officer found two small bindles containing a white powdery substance in the right front pocket of the jeans that Hardaway was carrying. The officer also found a bindle and a plastic baggie containing a white powdery substance in the right watch pocket of the jeans. The white powdery substances tested positive for methamphetamine. Although Hardaway later denied ownership of the jeans, Hardaway had the jeans in his possession when he was arrested and claimed the jeans from inventory to wear home when he was released from custody. ¶3 On February 27, 1995, the State of Montana (State) charged Hardaway with criminal possession of dangerous drugs. Hardaway appeared at the arraignment with appointed counsel and pled not guilty to the charge. On March 23,1995, the District Court released Hardaway on his own recognizance. Trial on Hardaway’s drug charge was set to begin on June 27,1995. For reasons unknown, but believed to have been caused by the court’s backlog, the case did not proceed to trial in June, but was reset for November 6, 1995. ¶4 On November 6,1995, the court, the prosecutor, defense counsel and the jury assembled to proceed with the trial. Defense counsel, however, informed the court that he could not find Hardaway. The court issued a bench warrant. Hardaway was arrested on November 15,1995 in Lake County on charges of burglary and theft. He was incarcerated and served with the outstanding Yellowstone County bench warrant. Yellowstone County charged Hardaway with bail jumping as a result of his failure to appear for the November 6,1995 trial. ¶5 Hardaway retained new counsel on December 19,1995. On May 22, 1996, Hardaway entered an Alford plea and was sentenced on the Lake County charges of burglary and theft. Thereafter, he was transported back to Yellowstone County to face the bail jumping and drug possession charges. The District Court set the trial on Hardaway’s drug possession charge for November 26, 1996 (643 days after his arrest). ¶6 On October 9,1996, Hardaway filed a motion to dismiss the drug possession charge based on lack of speedy trial. The court held a hearing and denied Hardaway’s motion. ¶7 Hardaway’s trial for bail jumping began on October 21, 1996. Hardaway called two out-of-town witnesses, one appeared at trial, the other appeared via telephonic deposition. Following the presentation of the State’s case, the court granted Hardaway’s motion for directed verdict of acquittal. Defense counsel requested reimbursement for costs incurred in obtaining the out-of-town witnesses’ testimony pursuant to § 46-15-116, MCA. The District Court denied the request for costs finding that defense counsel was retained, not court appointed and thus not eligible to receive reimbursement for the costs. Hardaway appeals from the District Court’s decision denying his request for reimbursement (Cause Number 97-289). ¶8 On November 26, 1996, the jury was assembled for trial on Hardaway’s drug possession charge. When asked if any of the prospective jurors knew the defendant, three members of the prospective panel revealed that they had been in court “a month ago for the defendant earlier for something else.” One of those three prospective jurors commented that “[Hardaway] shouldn’t have been doing what he was doing to be here.” This prospective juror was removed for cause. The second prospective juror was peremptorily removed, and the third juror sat on the jury that decided Hardaway’s drug possession case. In addition, another prospective juror stated during voir dire that she had seen an account of Hardaway’s arrest on television, that she be lieved he was guilty, and that she would find him guilty regardless of the evidence presented at trial. This fourth juror was also removed for cause. As a result of these damaging comments made in the presence of the entire jury panel, defense counsel requested that the court inform the jury during voir dire that Hardaway had been acquitted of the bail jumping charge. The District Court denied Hardaway’s specific request, but agreed to instruct the jurors that they were not to consider the prior criminal charge in any way. Defense counsel moved for a mistrial and the court denied the motion. The trial proceeded and the jury found Hardaway guilty of the drug possession charge. Following the jury verdict, Hardaway moved for a new trial due to the comments made during voir dire, and the court denied the motion. Hardaway appeals from the District Court’s denial of his motion to dismiss for lack of speedy trial and denial of his motion for mistrial (Cause Number 97-163). This Court consolidated Hardaway’s two appeals. Hardaway presents three issues on appeal: ¶9 1) Did the District Court abuse its discretion in determining that Hardaway’s speedy trial rights were not violated? ¶10 2) Did the District Court abuse its discretion in denying Hardaway’s motion for a mistrial? ¶11 3) Did the District Court err in denying Hardaway’s request for reimbursement of costs incurred in his defense of the bail jumping charge? I ¶12 1) Did the District Court abuse its discretion in determining that Hardaway’s speedy trial rights were not violated? ¶13 [1] A criminal defendant is guaranteed a speedy trial by the Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution. In determining whether a defendant has been denied his right to a speedy trial, this Court recently established a four-part balancing test in City of Billings v. Bruce, 1998 MT 186, [290 Mont. 148], 965 P.2d 866, which loosely follows the United States Supreme Court test set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The District Court applied the four-part Barker test to the facts of this case and determined that Hardaway’s right to a speedy trial was not violated. We determine, however, that the District Court and the parties did not, at the time Hardaway moved for a dismissal based on lack of speedy trial, have the benefit of the Bruce decision. Therefore, we remand this issue to the District Court to hold a hearing regarding Hardaway’s motion to dismiss for lack of speedy trial applying the test set forth in Bruce. ¶ 14 Under this Court’s recently adopted speedy trial test, the District Court should analyze four factors: 1) length of delay, 2) reason for delay, 3) assertion of the right by defendant, and 4) prejudice to the defense. Bruce, ¶¶55-58. In remanding this issue to the District Court, we correct the court’s allocation of time under the second factor and elaborate on the manner in which the Bruce decision is to be applied. ¶ 15 The second factor articulated in Bruce requires the court to consider the reasons for the delay. In so considering, the court determines which party is responsible for specific periods of time, then respectively allocates the total time delay between the parties. ¶16 The District Court determined that the casé would have been tried on November 6, 1995, but for Hardaway’s failure to appear at trial and thus, attributed the time between February 22 (Hardaway’s arrest) and November 6 (the second trial date) to Hardaway. Hardaway contends that in attributing this time to him, the District Court has effectively concluded that Hardaway waived his right to a speedy trial by failing to appear on November 6th. Hardaway further argues that he did not appear for trial on November 6th because his attorney did not inform him of the trial date. Moreover, Hardaway argues that the fact that he was acquitted of the bail jumping charge is further evidence that he should not be held accountable for the missed trial date and subsequently held responsible for the delay between his arrest and the November 6th trial date. ¶17 We determine that the District Court erred in attributing the time between February 22 and November 6 (257 days) to Hardaway. Had the trial been held on June 27th, as originally scheduled, Hardaway’s right to speedy trial would have been satisfied. It is not apparent from the record why the June 27th trial date was vacated in favor of the November 6th setting. The District Court ventured that the resetting of trial from June 27th to November 6th was likely the result of backlog. Therefore, since the time delay between February 22nd to November 6th was not attributable to Hardaway, we allocate that time to the State as institutional delay. ¶18 The District Court allocated the 198 days between November 6, 1995 and May 22, 1996 (while Hardaway was held on Lake County charges) to Hardaway due to his failure to appear at the November 6th trial and due to the inability of Yellowstone County to obtain jurisdiction over him while he was held in Lake County. Hardaway argues that the State acted in bad faith during this period of time. He argues first, that as a result of the bail jumping charge in Yellowstone County, he could not post bond in Lake County to appear in Yellowstone County. Furthermore, when he did appear in Yellowstone County, he was tried on the bail jumping charge before the drug possession charge even though the drug possession charge was eighteen months older than the bail jumping charge. We agree with the District Court that this period of delay was the result of Hardaway’s failure to appear at trial (even if he was not informed of the date) and his subsequent arrest in Lake County. We reject Hardaway’s claim of bad faith and therefore allocate this period of delay to Hardaway. ¶19 Finally, the District Court allocated the remaining 188 days from May 22 through Hardaway’s trial on November 26 to the State. The District Court, allocating only this 188 days to the State, determined that since the 188-day delay was not itself violative of Hardaway’s speedy trial right and was not intentional or deliberate, the State satisfactorily explained the reasons for the delay. As set forth above, we disagree with the court’s allocation and, instead, allocate a total of 445 days to the State. ¶20 Pursuant to this Court’s recent amendments to its speedy trial analysis, as set forth in Bruce, ¶56, if the court determines that the State is responsible for 275 or more days of the total delay, the State has the initial burden of demonstrating that the defendant has not been prejudiced by the delay. The 445-day delay attributed to the State exceeds the 275-day threshold and raises a presumption that Hardaway was prejudiced by the delay. Thus, in accordance with Bruce, the State has the initial burden of demonstrating a lack of prejudice. ¶21 We explained in Bruce that “[t]he State’s proof should take into consideration, but need not include, all three traditional bases for prejudice: (a) pretrial incarceration, (b) anxiety and all of its attendant considerations, and (c) impairment of the defense. ... Once the State has demonstrated lack of prejudice based on one or more of these considerations, the burden will then shift to the defendant to demonstrate prejudice and the district court will have to weigh the evidence of each party.” Bruce, ¶56. ¶22 In stating that the State may demonstrate lack of prejudice on one or more of the traditional bases of prejudice, we intended that the State offer proof on as many bases as possible and that the District Court weigh that evidence to determine whether the burden should shift to the defendant to show prejudice. We clarify that if the State can only show lack of prejudice on one of the three traditional bases of prejudice, it must, at a minimum, address the question of whether there has been impairment of the defense. That is, the State must offer proof that the defense has not been impaired by the delay in bringing the defendant to trial. ¶23 Ifthe State satisfies its burden of demonstrating that the defendant has not been prejudiced by the delay, the burden will shift to the defendant to show he/she has been prejudiced. With the above correction and this clarification of the Bruce decision, we remand this issue to the District Court to hold a hearing on Hardaway’s motion to dismiss for lack of speedy trial applying the test set forth in Bruce. II ¶24 2) Did the District Court abuse its discretion in denying Hardaway’s motion for a mistrial? ¶25 Hardaway moved for a mistrial during jury voir dire, and moved for a new trial after the trial. The District Court denied both of Hardaway’s motions concluding that Hardaway received a fair and impartial trial. We recently clarified in State v. Partin (1997), [287 Mont. 12], 951 P.2d 1002, that the district court, when deciding whether to grant a mistrial, should determine whether the conduct in question denies the defendant a fair and impartial trial. We further clarified that this Court will review a district court’s ruling on a motion for a mistrial to determine whether the court abused its discretion. Partin, 951 P.2d at 1005. ¶26 In support of his motion for mistrial, Hardaway asserted that the jury panel was poisoned by comments made by four veniremen during voir dire. Three of the prospective jurors, S.E., D.V., and S.H., stated that they had been on Hardaway’s jury panel one month earlier for his trial on bail jumping charges and that they recognized Hardaway and his attorney from that experience. S.E. expressed that “[Hardaway] shouldn’t have been doing what he was doing to be here ...” and that she believed she would be a potentially unfair juror in the drug possession case. S.E. was removed for cause. D.V. was peremptorily challenged, and S.H. sat on the jury that decided Hardaway’s drug possession case. In addition, a fourth juror, J.D., stated that she had seen an account of Hardaway’s arrest on television, that she believed he was guilty and that she would find him guilty regardless of the evidence presented at trial. J.D. also expressed that “[she] believe[d] that we’ve got too many people being killed for drugs. If we put them away from drugs, we wouldn’t have to spend taxpayer’s money on this [trial],... [We] should just put them in jail.” Shortly before being removed for cause, J.D. further expressed her opinion that “[Hardaway’s] guilty or he wouldn’t be here.” ¶2 7 Asa result of these damaging statements made in open court in the presence of the jury panel, defense counsel requested that the District Court inform the potential jurors that Hardaway had been acquitted of the bail jumping charges. The court refused to so instruct the jury, but agreed to instruct the veniremen that they were not to consider other criminal charges in any way. The District Court informed defense counsel that it was “this instruction or nothing.” Defense counsel indicated that he preferred the instruction to nothing, but immediately moved for a mistrial. The District Court denied the motion. The case proceeded and the jury found Hardaway guilty of the charges. Hardaway moved for a new trial at the conclusion of the trial and the court denied the motion. ¶28 In State v. McMahon (1995), 271 Mont. 75, 894 P.2d 313, this Court analyzed several cases wherein district courts had denied motions for mistrial based on juror prejudice. We recognized “a trend that improper comments by prosecutors or prospective jurors about the defendant or about the evidence, are not grounds for mistrial if the judge instructs the jury to disregard the questionable comment and if the court is satisfied that the juror can lay aside a fixed opinion and render a verdict solely on the evidence presented.” McMahon, 271 Mont. at 79, 894 P.2d at 316. In McMahon, we held that when comments of members of the prospective jury are so prejudicial that they have a “natural tendency” to infect the entire proceedings with an unfairness, such prejudice can only be corrected by declaring a mistrial and “starting anew the legal contest.”McMahon, 271 Mont. at 81, 894 P.2d at 317. However, we cautioned that our holding in McMahon should be interpreted narrowly and reserved only for the most egregious and prejudicial prospective juror comments. McMahon, 271 Mont. at 81, 894 P.2d at 317. We determine that this is such a case. ¶29 Hardaway argues that, “the jury was left with the firm impression that their Thanksgiving plans had to be interrupted because they had to hear the case of a defendant who had just been convicted a month previously and who was identified as obviously guilty by one prospective juror.” In addition, Hardaway argues that the cautionary instruction given by the District Court, that the jurors should not consider other criminal charges in any way, did not defuse the incriminatory statements made by the prospective jurors. The State asserts that Hardaway has not shown that the jury was prejudiced by the remarks, nor has he established that the District Court’s cautionary instruction did not cure any supposed harm. ¶30 We apply the general principle, as we did in McMahon, that “’any improper influence which has the natural tendency to prejudice the verdict is grounds for a mistrial.’” McMahon, 271 Mont. at 80, 894 P.2d at 317 (quoting Putro v. Baker (1966), 147 Mont. 139, 148, 410 P.2d 717, 722). We conclude that the comments made by the prospective jurors in the presence of the entire panel were so prejudicial that they had a “natural tendency” to infect the proceedings with an unfairness that could only have been corrected by an instruction from the District Court that Hardaway had been acquitted of the bail jumping charge, thus preserving Hardaway’s presumption of innocence, or by declaring a mistrial and starting anew the legal contest. In the absence of such corrective action by the District Court, Hardaway was denied a fair and impartial trial. We hold that the District Court abused its discretion in denying Hardaway’s motion for a mistrial or, in the alternative, by failing to instruct the jury that Hardaway had been acquitted on the bail jumping charge. Accordingly, in the event the District Court determines that Hardaway was not denied a speedy trial, we reverse and remand this matter to the District Court for a new trial. Ill ¶31 3) Did the District Court err in denying Hardaway’s request for reimbursement of costs incurred in his defense of the bail jumping charge? ¶32 Following Hardaway’s acquittal of the bail jumping charge, defense counsel moved for reimbursement of costs incurred in procuring testimony of two out-of-town witnesses. The first witness, Roberta Tamcke, flew from Oregon to Montana the day before trial and appeared as a witness at the trial. The second witness, Christopher J. Riccardi, was unavailable for trial and appeared via telephonic deposition. Defense counsel asserted that, pursuant to § 46-15-116, MCA, he was entitled to reimbursement of costs incurred in procuring this testimony. In support of his claim on appeal, defense counsel represents that he was acting pro bono on behalf of Hardaway. ¶33 The District Court determined that since defense counsel was retained, not court appointed, he was not entitled to reimbursement. Hardaway appeals from the District Court’s denial of costs. The State moved this Court to dismiss Hardaway’s claim for costs asserting that this issue does not effect substantial rights of the defendant and thus is not proper on appeal. Hardaway counters this argument by asserting that this issue is linked to his constitutional right to counsel. In support, Hardaway asserts that his court appointed counsel was providing ineffective assistance. Hardaway contends that, although his current counsel was willing to serve pro bono, his counsel should not be burdened with the witness costs incurred in his defense. We deny the State’s motion to dismiss and consider Hardaway’s appeal on the issue of reimbursement of costs. ¶34 The District Court, in denying reimbursement of witness costs, reasoned that § 46-15-116, MCA, “must necessarily be read in conjunction with § 3-5-901, M.C.A.” and that, the “statute anticipates that the witness fees and expenses will be paid for witnesses called on behalf of the prosecution but not on the behalf of privately funded retained counsel where a defendant has not as an indigent requested court-appointed counsel.” The District Court also noted that there was no request for attendance or subpoena of Ms. Tamcke pursuant to § 46-15-113, MCA (compelling attendance of out-of-state witness), and that the request for reimbursement should be denied for that reason. ¶35 The clear language of § 46-15-116, MCA, states that “[w]hen a person attends before a judge, grand jury, or court as a witness in a criminal case upon a subpoena, the witness shall receive the witness fee prescribed in Title 26, chapter 2, part 5.... The court may determine the reasonable and necessary expenses of subpoenaed witnesses and order the clerk of the court to pay the expenses from the appropriate city or county treasury.” Section 3-5-901, MCA, states that “[t]o the extent the revenue is available ... the state shall fund... the following district court expenses in criminal cases only... witness fees and necessary expenses....” We disagree with the District Court’s interpretation that the statutes apply only to court appointed counsel or indigent defendants since the statutes impose no such requirement. The only prerequisites that appear in the statutes are that the court has the revenue available and that the witness be subpoenaed. ¶36 The record indicates that Ms. Tamcke voluntarily appeared for trial on October 22,1996 and acknowledged service of the subpoena shortly before testifying on the same day. Having been served with a subpoena prior to testifying, Ms. Tamcke qualifies for fees and costs under § 46-15-116, MCA. Moreover, we determine that the procedural requirements of § 46-15-113, MCA, for compelling the attendance of an out-of-state witness do not apply to an out-of-state witness who voluntarily appears and acknowledges service of a subpoena. ¶37 As to deposition costs, Hardaway argues that the statutes allowing costs do not distinguish between court appointed and retained attorneys, but rather rely on the indigency status of the defendant. Section 46-15-202(7), MCA, provides that “whenever a deposition is taken at the instance of a defendant who is unable to bear the expense of taking a deposition, the court shall direct that the expense ... be paid by the city for a municipal court proceeding or by the state for a district court proceeding.” Christopher Riccardi, also an out-of-town witness, was not available to appear at Hardaway’s trial. As a result, defense counsel conducted a telephonic deposition the night before trial and moved the court the next day for its admission into evidence. The court granted the motion allowing the testimony, but subsequently denied counsel’s request for reimbursement of costs associated with procuring the testimony. While § 46-15-202(7), MCA, does not specifically address the cost of a telephonic deposition, we note that, in most instances, a telephonic deposition is more cost effective than incurring travel expenses associated with conducting a deposition in person. We hold that the costs of a telephonic deposition are within the scope of “a deposition” under § 46-15-202(7), MCA. ¶38 The record reveals that in Cause Number 97-163, Hardaway was declared indigent and an attorney was appointed on his behalf when he was arrested in 1995. However, Hardaway obtained new counsel in December 1995, claiming his court appointed attorney was rendering ineffective assistance. In addition, the District Court, based on Hardaway’s showing of indigency, allowed the preparation of transcripts for purposes of appeal without cost to Hardaway, thereby supporting Hardaway’s claim that his indigency status had continued throughout the time that counsel requested reimbursement. We agree with Hardaway that a defendant’s entitlement to reimbursement for deposition costs under § 46-15-202(7), MCA, does not hinge on whether the defendant’s counsel is court appointed or retained; rather, the determining factor is whether the defendant is indigent, and thus unable to bear the expense. We remand this issue to the District Court for an award of costs consistent with this opinion. ¶39 In conclusion, we remand this matter to the District Court for the following purposes: First, the District Court shall conduct a hearing on Hardaway’s motion to dismiss for lack of speedy trial. In conducting such hearing, the District Court shall adhere to the corree tions and clarifications set forth in this opinion. In addition, the District Court shall apply the speedy trial test as recently set forth by this Court in City of Billings v. Bruce, 1998 MT 186, [290 Mont. 148], 965 P.2d 866. Second, if the court determines Hardaway was denied a speedy trial, the court shall dismiss the drug possession charge against Hardaway. In the alternative, if the court determines that Hardaway’s constitutional right to a speedy trial was not denied, the court shall promptly set this matter for a retrial based on this Court’s holding on Issue II. Finally, the District Court shall hold a hearing to determine the amount of Hardaway’s costs in accordance with this Court’s resolution of Issue III. Reversed and remanded. CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and REGNIER concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Appellant Paul Wright (Wright) appeals the District Court’s order denying his motion for a writ of prohibition. We affirm. ¶2 The sole issue on appeal is: Did the District Court err in refusing to issue a writ to prohibit the Department of Corrections from transferring Wright from the Montana State Prison in Deer Lodge, Montana, to another correctional facility? Factual and Procedural Background ¶3 On June 11,1996, the Thirteenth Judicial District Court convicted Wright of deliberate homicide and use of a firearm. The sentencing court ordered that Wright “be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of seventy five (75) years.” The court sentenced Wright to an additional five years for using a firearm during the crime and declared that he be ineligible for parole, placement in any supervised release program, or for placement in any program or facility besides the Montana State Prison (MSP) for the first twenty years of the sentence. After the conviction, Wright was transferred to MSP in Deer Lodge, Montana. Since then, the Department of Corrections (DOC) has placed Wright at various institutions, including out-of-state correctional facilities and in-state regional detention and private correctional centers. ¶4 Wright filed a writ for prohibition with the Thirteenth Judicial District Court in order to prevent the DOC from housing him in any correctional facility other than MSP. The District Court declined to issue a writ of prohibition. Wright appeals the District Court’s decision. Standard of Review ¶5 When this Court reviews a district court’s conclusions of law regarding the application of a statute, our standard of review is “whether the tribunal’s interpretation of the law is correct.” State v. McNally, 2002 MT 160, ¶ 5, 310 Mont. 396, ¶ 5, 50 P.3d 1080, ¶ 5; State v. Peplow, 2001 MT 253, ¶ 17, 307 Mont. 172, ¶ 17, 36 P.3d 922, ¶ 17 (citations omitted). See also, State v. Anderson, 2001 MT 188, ¶ 19, 306 Mont. 243, ¶ 19, 32 P.3d 750, ¶ 19 (stating that our standard of review is plenary when reviewing a district court’s conclusions of law, and that we must determine whether the conclusions are correct as a matter of law). • Discussion ¶6 Wright argues that, by the terms of his written judgment, the statutory definition of “state prison” and by virtue of his liberty interest in not being transferred, the DOC does not have the authority to transfer him from the Montana State Prison at Deer Lodge, Montana. First, Wright contends that the plain language of the District Court’s “Judgment and Commitment” mandates his placement in MSP for the first twenty years of his sentence. In support of this proposition, Wright directs us to the language of the judgment where the District Court ordered that Wright be “punished by imprisonment in the Montana State Prison at Deer Lodge, Montana,” and “[in]eligible for parole, placement in any ‘ supervised release program or for placement in any program or facility besides Montana State Prison for the first twenty (20) years ....” Furthermore, Wright submits that he may not be imprisoned anywhere other than at the prison located in Deer Lodge for at least the first twenty years of his sentence because § 53-30-101, MCA (1995), in effect at the time of his sentencing, designated “[t]he institution at Deer Lodge [a]s the state prison ....” It is important to note that, at the time of Wright’s sentencing in 1996, the facility in Deer Lodge was the only adult male correctional facility in Montana. Although Wright recognizes that the statutory denomination of “state prison” has since been expanded to now include the Montana state prison, the Montana women’s prison, a detention center in another jurisdiction detaining inmates from Montana pursuant to § 50-30-106, MCA, and a private correctional facility (see § 53-30-101, MCA (2001)), he insists that any application of the amended statute to his sentence is unconstitutionally ex post facto. ¶7 Article I, Section 10 of the United States Constitution prevents state legislatures from enacting ex post facto legislation. Article II, Section 31 of the Montana Constitution prohibits the same. See State v. Leistiko (1992), 256 Mont. 32, 36, 844 P.2d 97, 99. The constitutional prohibition against ex post facto laws is concerned with laws that retroactively make innocent action criminal, enlarge the definition of crimes or increase the punishment for criminal acts. See California Dept. of Corrections v. Morales (1995), 514 U.S. 499, 504, 115 S.Ct. 1597, 1601, 131 L.Ed.2d 588, 594. The Montana Code states: “No law contained in any of the statutes of Montana is retroactive unless expressly so declared.” Section 1-2-109, MCA. This Court uses the two-part Leistiko test to determine whether a statute violates the ban on ex post facto laws: (1) the law must be retrospective, and (2) it must disadvantage the offender affected by it. State v. Duffy, 2000 MT 186, ¶ 29, 300 Mont. 381, ¶ 29, 6 P.3d 453, ¶ 29 (citing Leistiko, 256 Mont. at 36-37, 844 P.2d at 100). However, changes in procedure which do not affect substantial rights do not implicate the prohibition against ex post facto laws. State v. Goebel, 2001 MT 155, ¶ 28, 306 Mont. 83, ¶ 28, 31 P.3d 340, ¶ 28. Therefore, this Court will apply the above-mentioned test only if Wright’s substantial rights are implicated by the application of the amended statute. ¶8 Wright asserts that the application of the amended definition violates both his. constitutional due process right to liberty and his state-created liberty interest. We first turn to Wright’s argument regarding his constitutional liberty interest. While the Fourteenth Amendment of the United States Constitution prohibits a state from depriving a person of life, liberty, or property without due process of law, it is nevertheless well-settled that: [G]iven a valid conviction, the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may confine him and subject him to the rules of its prison system so long as the conditions of confinement do not otherwise violate the Constitution. The Constitution does not require that the State have more than one prison for convicted felons; nor does it guarantee that the convicted prisoner will be placed in any particular prison if, as is likely, the State has more than one correctional institution .... The conviction has sufficiently extinguished the defendant’s liberty interest to empower the State to confine him in any of its prisons. Meachum v. Fano (1975), 427 U.S. 215, 224-25, 96 S. Ct. 2532, 2538 , 49 L.Ed.2d 451, 458-59. Additionally, “[j]ust as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State.” Olim v. Wakinekona (1983), 461 U.S. 238, 245, 103 S.Ct. 1741, 1745, 75 L.Ed.2d 813, 820. Clearly, Wright does not have a constitutional right to be imprisoned in any particular facility. ¶9 Nevertheless, Wright maintains that even if he does not have a federal constitutional due process right to be imprisoned in a particular correctional facility, he does have a state-created liberty interest in not being transferred from MSP. Wright submits that Montana laws in effect at the time of his sentencing created this liberty interest. In order for a state to create a liberty interest, it must first enact a law that establishes a “right of real substance;” however, even then statutorily-defined liberty interests are restricted to freedom from “atypical and significant hardships in relation to the ordinary incidents of prison life” or restraints which “inevitably affectD the duration of the prisoner’s confinement.” McDermott v. Montana Dept. of Corrections, 2001 MT 134, ¶ 11, 305 Mont. 462, ¶ 11, 29 P.3d 992, ¶ 11. ¶10 Other than § 53-30-101, MCA (1995), Wright does not list which Montana laws in effect at the time of his sentencing established a “right of real substance.” However, even if this Court determined that the 1995 definition of “state prison” did confer a right of real substance, this right is restricted to freedom from “atypical and significant hardships in relation to the ordinary incidents of prison life” or restraints which “inevitably affect[] the duration of the prisoner’s confinement.” McDermott, ¶ 11. Being transferred from one prison to another, even out of state, is neither an “atypical and significant” hardship in relation to the ordinary incidents of prison life, nor does it “inevitably affect the duration” of Wright’s confinement. ¶11 For example, in Olim v. Wakinekona (1983), 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813, a Hawaii prisoner, who had been transferred to a prison in California, claimed that the transfer violated his state-created right to be imprisoned in Hawaii. The prisoner argued that Hawaii’s prison regulations had created a liberty interest and a corresponding due process right. In concluding that Hawaii had not created such a liberty interest, the United States Supreme Court asserted that a State does not create a constitutionally protected liberty interest unless it has “conferred [a] right on the prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct.” Wakinekona, 461 U.S. at 248-49, 103 S.Ct. at 1747, 75 L. Ed. 2d at 822 (quoting Meachum, 427 U.S. at 226, 96 S.Ct. at 2539, 49 L.Ed.2d at 460). We conclude that Wright has not persuasively shown that Montana laws in effect at the time of his sentencing “conferred [a] right on the prisoner to remain in the prison in which he was initially assigned, defeasible only upon proof of specific acts of misconduct.” Like Hawaii in Wakinekona, Montana retains the discretion to transfer a prisoner for whatever reason or no reason at all; the laws in effect at the time of Wright’s sentencing did not impose conditions on its discretionary power to transfer prisoners. Like the prisoner in Wakinekona, Wright does not have a state-created liberty interest in not being transferred to or from any correctional facility. ¶12 Therefore, because none of Wright’s substantial rights are implicated by his being housed at a correctional facility other than the prison in Deer Lodge, we need not apply the two-pronged Leistiko test. However, even if this Court did apply this test, Wright would fail its second prong because the amended statute neither alters the definition of a crime nor increases the punishment. State v. Duffy, 2000 MT 186, ¶ 31, 300 Mont. 381, ¶ 31, 6 P.3d 453, ¶ 31. Here, as in Duffy, “[t]he conduct of which [the defendant] was accused was illegal and punishable both before and after” the amendment. Moreover, the District Court’s design in declaring that Wright be “[inteligible for parole, placement in any supervised release program or for placement in any program or facility besides Montana State Prison for the first twenty years,” was to ensure that Wright would serve at least twenty years in prison, not to confer to Wright a special privilege to serve in any particular prison. ¶13 The facts presented in this case are similar to those in California Dept. of Corrections v. Morales (1995), 514 U.S. 499, 115 S.Ct. 1597, 131 L.Ed.2d 588. At issue in Morales was a statute that had amended parole procedures to allow the Board of Prison Terms to decrease frequency of parole suitability hearings under certain circumstances. Like Wright, the defendant in Morales contended that the application of the amended parole procedures to his prison sentence violated the ex post facto clause because he had been convicted prior to the amendment. The Ninth Circuit Court of Appeals agreed with the defendant. The United States Supreme Court, however, granted certiorari and reversed the Circuit Court’s decision. The Court based the reversal on its application of a version of the Leistiko test and its determination that the amended parole procedures did not “retroactively alter the definition of crimes or increase the punishment for criminal acts.” Morales, 514 U.S. at 504, 115 S.Ct. at 1601, 131 L.Ed.2d at 594 (citations omitted). The Supreme Court also noted that under Morales’ expansive view, the Clause would forbid any legislative change that has any conceivable risk of affecting a prisoner’s punishment. Morales, 514 U.S. at 508, 115 S.Ct. at 1602-03, 131 L.Ed.2d at 596. Here, Wright’s expansive view would similarly preclude any legislative change that would have any possible chance of affecting a prisoner’s punishment, as well as frustrate the DOC’s efforts to prevent overcrowding at its facilities. ¶14 Lastly, in his opening brief, Wright asserts that the application of the amended definition of “state prison” violates his Equal Protection rights; however, Wright failed to make an equal protection argument to the District Court in his petition for a writ of prohibition. Given that “it is fundamentally unfair to fault the ... court for failing to rule correctly on an issue it was never given the opportunity to consider,” and that “[t]he general rule is that this Court will not address an issue raised for the first time on appeal,” we decline to address this argument. Montana Fair Housing, Inc. v. Barnes, 2002 MT 353, ¶ 24, 313 Mont. 409, ¶ 24, 61 P.3d 170, ¶ 24 (quoting Day v. Payne (1996), 280 Mont. 273, 276-77, 929 P.2d 864, 866). ¶15 Therefore, in consideration of the foregoing, chiefly that Wright has neither a federal nor a state constitutional liberty interest in being housed exclusively in the state prison located in Deer Lodge, Montana, we conclude that the DOC has the authority to transfer Wright from that facility. Accordingly, we affirm the District Court’s ruling. JUSTICES REGNIER and RICE and DISTRICT JUDGE NEILL, sitting for former JUSTICE TRIEWEILER.
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MR. JUSTICE WEBER delivered the Opinion of the Court. This appeal arises from an order by the Workers’ Compensation Court, concluding that the claimant did not incur a new industrial injury in 1981 and that claimant is properly receiving permanent partial benefits according to rates applicable to a 1978 injury. From this order, the claimant appeals. We affirm. The issues are: 1. Did the Workers’ Compensation Court err in concluding that the claimant did not sustain an industrial injury in 1981? 2. Did the Workers’ Compensation Court err in concluding that the statute of limitations was not tolled on the basis of equitable estoppel? 3. Did the Workers’ Compensation Court err in concluding that the statute of limitations was not tolled because the employer made payments in lieu of compensation? 4. Did the Workers’ Compensation Court err in concluding that the reduction in benefits was not unreasonable? 5. Did the Workers’ Compensation Court err in awarding attorney fees and costs pursuant to § 39-71-612, MCA (1978)? Mr. William Sharkey suffered an industrial accident on September 10, 1978, while employed by the Atlantic Richfield Company (ARCO), when he fell from a ladder approximately twelve feet to the ground. His left arm hooked into the ladder as he fell, and he sustained injuries to his left shoulder. Mr. Sharkey was treated by Dr. Losee for this injury. This treatment included surgery on the shoulder in December of 1978. Mr. Sharkey returned to work for ARCO in May of 1979 with no physical restrictions. ARCO accepted liability for this injury and paid temporary total disability benefits while Mr. Sharkey was unable to work. ARCO also paid medical expenses. In December of 1979 the parties negotiated a final settlement for this injury for the sum of $3,948.00, which represented 42 weeks of permanent partial disability benefits at the rate of $94.00 per week. In late 1981, Mr. Sharkey began experiencing problems with his left shoulder again. He contends that these problems stemmed from a new work-related injury which occurred on December 16, 1981. Mr. Sharkey claims that on that date he was lifting the hood on a fuel truck when his left shoulder “gave out,” causing the hood to fall on him. He claims that his left shoulder was re-injured in this accident. Mr. Sharkey testified that he reported the accident to his supervisor, Mr. Johnson, who made out a written report in Mr. Sharkey’s presence. Mr. Sharkey also testified that he told Mr. Bugni, ARCO’s Workers’ Compensation Coordinator, that he hurt his shoulder. Also, in December of 1981, Mr. Sharkey obtained authorization to see Dr. Losee for his shoulder problem. This authorization was obtained from Ms. Nelson, a claims adjuster for the insurer, E.S.I.S., Inc. Dr. Losee referred Mr. Sharkey to Dr. Matsen at the University Hospital in Seattle, Washington, who performed surgery on Mr. Sharkey’s shoulder in March of 1982. Ms. Nelson reopened Mr. Sharkey’s 1978 injury claim following the January 1982 examination by Dr. Losee. Beginning in February 1982 Mr. Sharkey began receiving Workers’ Compensation temporary total benefits at the same rate he had received for his 1978 injury. These benefits amounted to $188 per week and continued until they were reduced to permanent partial benefits of $94 per week, in February 1983. . I Did the Workers’ Compensation Court err in concluding that claimant did not sustain an industrial injury in December of 1981? [1] In reviewing a decision of the Workers’ Compensation Court, the standard of review is whether substantial credible evidence exists to support the findings and conclusions of the Workers’ Compensation Court. Stangler v. Anderson Meyers Drilling Co. (Mont. 1987), [229 Mont. 251,] 746 P.2d 99, 101, 44 St.Rep. 1944, 1947. Findings of fact are not clearly erroneous if they are supported by substantial credible evidence. Tenderholt v. Travel Lodge Intern. (1985), 218 Mont. 523, 709 P.2d 1011, 1013, 42 St.Rep. 1792, 1794. Additionally, in Wight v. Hughes Livestock Co., Inc. (1981), [_ Mont._,] 634 P.2d 1189, 1191, 38 St.Rep. 1632, 1635, rev’d on other grounds, 204 Mont. 98, 664 P.2d 303 (1983), this Court stated: “ ‘If the Workers’ Compensation Court’s findings are based on conflicting evidence . . . this Court’s function on review is confined to determining whether there is substantial evidence on the whole record supporting such findings.’ Harmon v. Deaconess Hospital (1981), Mont., [191 Mont. 285,] 623 P.2d 1372, 1374, 38 St.Rep. 65, 67-68, and cases cited therein.” The Workers’ Compensation Court found that Mr. Sharkey did not sustain a new industrial injury on December 16, 1981. Although Mr. Sharkey claims that he injured his left shoulder when the hood fell on him in December of 1981, there is no evidence in the record from either written documents or oral testimony, to corroborate Mr. Sharkey’s assertion. At trial, aside from Mr. Sharkey’s assertion, the evidence indicated that the 1981 shoulder problem stemmed from the 1978 injury. While Mr. Sharkey testified that he reported this injury to his supervisor, Mr. Johnson, who filled out a written report, Mr. Johnson did not testify at trial and no accident report was ever filed. Mr. Sharkey claims that he reported his shoulder injury to Mr. Bugni in person on the day of the accident. However, Mr. Sharkey could not remember if he told Mr. Bugni how he hurt his shoulder. In testifying at trial, Mr. Bugni referred to notes he had taken during his conversation with Mr. Sharkey. According to those notes, the conversation occurred the day after the accident, and was over the telephone. Mr. Bugni testified that Mr. Sharkey did not mention a new accident or injury; rather, Mr. Sharkey told him he was having more problems with his shoulder from his previous 1978 injury. There is no evidence indicating that Mr. Sharkey informed either Dr. Losee or Ms. Nelson of a new accident; instead, the evidence indicated that both Dr. Losee and Ms. Nelson understood that his 1981 shoulder problems had developed over a period of months. Dr. Losee, in his letter to Dr. Matsen, indicated that the shoulder problems had developed over a period of several months. He testified that he had no record or recollection that Mr. Sharkey informed him of a new injury to his shoulder. Ms. Nelson stated that she had no knowledge that Mr. Sharkey was claiming a new injury until 1985. Both Mr. Bugni and Ms. Nelson testified regarding the records which would have been made, had Mr. Sharkey reported a new and separate injury in 1981. Their files, however, contained no records to corroborate Mr. Sharkey’s claim. Mr. Sharkey contends that ARCO has made a judicial admission in this case, admitting that Mr. Sharkey indeed sustained a new injury in 1981. It is true that at trial, ARCO also argued for a determination that Mr. Sharkey had sustained a work-related injury in 1981. Such a finding, combined with a determination that no notice was given of the injury, would have meant the statute of limitations had run for this claim, thereby preventing a recovery. In fact, the Workers’ Compensation Division might have been entitled to a reimbursement from Mr. Sharkey for benefits already paid. The Workers’ Compensation Court properly considered the actual facts which were presented at trial through witnesses and exhibits. What ARCO may have contended is irrelevant to the factual determination made by the court. When the testimony is conflicting, it is the trial court which judges the credibility of the witnesses and this Court defers to that assessment. “Ordinarily, this Court will not substitute its judgment for that of the Workers’ Compensation Court in determining the weight and credibility to be given testimony.” Rule 52(a), M.R.Civ.P.; Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 146, 639 P.2d 1140, 1144. The court found the facts to compel a conclusion that Mr. Sharkey did not sustain a new injury in 1981. Our review of the record demonstrates that there is substantial credible evidence to support the findings of the Workers’ Compensation Court. We conclude that the court was correct in determining that no new injury occurred in 1981. We affirm the holding of the Workers’ Compensation Court. II Did the Workers’ Compensation Court err in concluding that the statute of limitations was not tolled on the basis of equitable estoppel? The elements of equitable estoppel were enunciated in Lindblom v. Employers’ Liability Assur. Corp. (1930), 88 Mont. 488, 494, 295 P. 1007, 1009 as follows: “Generally speaking, the following are the essential elements which must enter into and form a part of an equitable estoppel in all of its applications: T. There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts. 2. These facts must be known to the party estopped at the time of his said conduct, or at least the circumstances must be such that knowledge of them is necessarily imputed to him. 3. The truth concerning these facts must be unknown to the other party claiming the benefit of the estoppel, at the time when it was acted upon by him. 4. The conduct must be done with the intention, or a least with the expectation, that it will be acted upon by the other party, or under such circumstances that it is both natural and probable that it will be so acted upon. * * * 5. The conduct must be relied upon by the other party, and, thus relying, he must be led to act upon it. 6. He must in fact act upon it in such a manner as to change his position for the worse; in other words, he must so act that he would suffer a loss if he were compelled to surrender or forego or alter what he has done by reason of the first party being permitted to repudiate his conduct and to assert rights inconsistent with it.” Mr. Sharkey contends that ARCO is equitably estopped from asserting the statute of limitations defense. He contends that the employer’s silence in not notifying Mr. Sharkey that he was being paid according to 1978 rates meets the first element of equitable estoppel. Our holding in the first issue, however, resolves this dispute. To constitute an estoppel, it would be necessary for ARCO to have knowledge or imputed knowledge of material facts entitling Mr. Sharkey to 1981 benefits. ARCO would then have to conceal these facts. As in Devlin v. Galusha, Higgins and Galusha (1982), 202 Mont. 134, 138-39, 655 P.2d 979, 981, neither the employer in the present case nor the insurer engaged in any conduct which would amount to a representation or concealment of a material fact. It was the claimant’s omission which brought about a failure to file a claim. This court has previously held that estoppel does not apply where the omissions of the party claiming estoppel caused the problem. Additionally, the third element of estoppel, that the claimant was unaware of the truth, is questionable. Mr. Sharkey had previously been paid benefits based on his 1978 wages. These benefits were reinstated and were still based on the 1978 rates. Mr. Sharkey must be imputed with knowledge that his benefits should reflect the alleged 1981 date of injury. However, he accepted benefits based on the 1978 rates. Thus equitable estoppel is inapplicable because the first three elements are not met. We affirm the holding of the Workers’ Compensation Court in concluding that equitable estoppel does not apply. Mr. Sharkey also contends that ARCO violated § 39-71-204, MCA (1978), by reinstating Mr. Sharkey’s 1978 benefits after a final settlement without obtaining a written order from the Workers’ Compensation Division, and without notifying the claimant in writing. This contention fails because § 39-71-204, MCA (1978), does not require that the Division approve in writing of the reopening of a claim, or that it notify the claimant in writing. Ill Did the Workers’ Compensation Court err in concluding that the statute of limitations should not be tolled because the employer made payments in lieu of compensation? Mr. Sharkey contends that the payments he received through the reinstatement of 1978 benefits tolled the statute of limitations on filing a workers’ compensation claim. According to this theory, the statute may be tolled where an employer makes voluntary payments which are substantially comparable to or greater than benefits available through workers’ compensation. See generally 3 A. Larson, The Law of Workers’ Compensation § 78.43 (1987). The concern is that an employer may lull the claimant into a “false sense of security by apparently acknowledging the validity of his claim, paying remuneration in lieu of compensation, and then invoking the statute after the lapse of one year.” Frost v. Anaconda Co. (1982), 198 Mont. 216, 221, 645 P.2d 419, 422, citing Cupit v. Dancu Chemical Co. (Okla. 1957), 316 P.2d 593 at 595. In Frost we also stated that to toll the statute under this theory, the employer should have some knowledge of the effect of what he is doing. Frost, 645 P.2d at 423, quoting Buxbaum v. Cumberland Provision Co. (1961), 14 A.D.2d 425, 221 N.Y.S.2d 339, at page 342. Claimant relies on Frost to support his contention but the cases are not comparable. In Frost, the employer paid compensation from an employee benefit plan, which was totally separate from workers’ compensation benefits. The payments were comparable to or greater than workers’ compensation benefits. This created a false sense of security in the employee, leading him to believe it was unnecessary to file a workers’ compensation claim. In the present case the payments were clearly workers’ compensation disability benefits, and the amounts were based on 1978 rates. Neither the payments nor the conduct of the employer would mislead Mr. Sharkey into believing he did not need to file a claim for the alleged new injury. We conclude that the payments made to Mr. Sharkey did not toll the statute of limitations. We affirm the ruling of the Workers’ Compensation Court on this issue. IV Did the Workers’ Compensation Court err in concluding that a reduction in benefits to the claimant was not unreasonable? In 1983, Ms. Nelson reduced Mr. Sharkey’s benefits from temporary total benefits of $188 per week to permanent partial benefits of $94 per week. Mr. Sharkey contends that this reduction was “unreasonable.” He further contends that if the reduction was unreasonable, he is entitled to an increased award pursuant to § 39-71-2907, MCA (1978), which provides for a 10% penalty when benefits are unreasonably refused or delayed. Mr. Sharkey contends that the reduction was unreasonable, apparently because he was enrolled in a rehabilitation program through Social Rehabilitation Services with a goal of obtaining certification as a vo-tech teacher. Mr. Sharkey’s contention may be attributable to the fact that § 39-71-116(19), MCA, the statute defining temporary total benefits, was amended in 1985 to state that temporary total benefits were appropriate during a period of retraining. However, this amendment was not in effect when Mr. Sharkey was injured, and we have previously stated that the statute in effect on the date of injury controls. Homme v. Rauenhorst (Mont. 1987), [227 Mont. 495,] 740 P.2d 1110, 1113, 44 St.Rep. 1261, 1265. We also point out that this amendment has subsequently been deleted. Thus, the Workers’ Compensation Court is not obligated to reach a finding of total disability simply because the claimant is in a retraining program. Homme, 740 P. 2d at 1113; Phillips v. Spectrum Enterprises (Mont. 1986), [224 Mont. 407,] 730 P.2d 1131, 1135, 43 St.Rep. 2288, 2292. Temporary total disability is defined in § 39-71-116(19), MCA (1978), as follows: “ ‘Temporary total disability’ means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit.” Permanent partial disability is defined in § 39-71-116(12), MCA (1978), as follows: “ ‘permanent partial disability’ means a condition resulting from injury as defined in this chapter that results in the actual loss of earnings or earning capability less than total that exists after the injured workman is as far restored as the permanent character of the injuries will permit.” Additionally, in Anderson v. Carlsons Transport (1978), 178 Mont. 290, 294, 583 P.2d 440, 442, we stated: “ ‘[Temporary total disability ceases when the workman’s physical condition is as far restored as the permanent character of the injuries will permit. When the claimant has reached this stage in his healing process temporary total disability ceases, and partial disability begins if there is permanent partial impairment.’ (Quoting McAlear v. McKee (1976), 171 Mont. 462, 558 P.2d 1134, 1137, 33 St.Rep. 1337, 1340.)” At trial, Ms. Nelson testified that she made the decision to reduce Mr. Sharkey’s benefits to permanent partial based on a medical report and a Work Capacity form from Dr. Losee, a medical report from Dr. Baggenstos, and rehabilitation reports. These reports indicated that Mr. Sharkey was medically stable and that there was work available for him. A review of the record demonstrates that claimant was as far restored as the permanent character of his injuries would permit. The record also demonstrates that work was available which Mr. Sharkey could perform. This evidence fulfills the definitional requirements of permanent partial disability and indicates that the change was properly made. See, McDanold v. B.N. Transport, Inc. (1984), 208 Mont. 470, 475, 679 P.2d 1188, 1191. Mr. Sharkey cannot properly contend that permanent partial benefits are not appropriate merely because he was involved in a rehabilitation program. To prevail under § 39-71-2907, MCA (1981), the claimant must show unreasonableness. Paulson v. Bozeman Deaconess Foundation Hosp. (1984), 207 Mont. 440, 444, 673 P.2d 1281, 1283. Additionally, whether the insurer’s conduct was unreasonable is a factual question and this ruling by the Workers’ Compensation Court will not be overturned if supported by substantial credible evidence. Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048, 1052, 42 St.Rep. 1238, 1242. The Workers’ Compensation Court determined that the reduction was not unreasonable and we conclude that there is substantial credible evidence to support that determination. We therefore affirm this ruling. V Did the District Court err in awarding attorney fees and costs pursuant to § 39-71-612, MCA (1978)? The Workers’ Compensation Court allowed attorney fees and costs pursuant to § 39-71-612, MCA (1978), which allows fees when the amount of benefits is in controversy. Mr. Sharkey contends that attorney fees and costs should have been allowed pursuant to § 39-71-611, MCA (1978), which allows fees when benefits are denied or terminated. The record demonstrates that the Workers’ Compensation Fund paid temporary total benefits of $188 per week until February of 1983, at which time the award was reduced to permanent partial benefits of $94 per week. As a result, it is clear that attorney fees cannot be awarded under § 39-71-611, MCA (1978), which applies only where benefits are denied or terminated. Mr. Sharkey was awarded 500 weeks of permanent partial benefits by the Workers’ Compensation Court. The Division had argued for an award of only 280 weeks of permanent partial, or in the alternative, for no benefits based on a statute of limitations defense. Clearly the amount of benefits was in controversy, and Mr. Sharkey received an award in excess of what the Division offered. We therefore conclude that attorney fees and costs were properly awarded pursuant to § 39-71-612, MCA (1978). Affirmed. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, HUNT, GULBRANDSON and McDONOUGH concur.
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MR. JUSTICE McDONOUGH delivered the Opinion of the Court. This is an appeal from an action begun to foreclose a mortgage on agricultural real property. Defendant John D. Romain (Romain) appeals from the judgment of the District Court of the Twelfth Judicial District, Hill County, finding adverse to his cross-claim asserted against Earl Schwartz Company, a partnership (partnership). We affirm in part and reverse in part. Although Romain presents several issues for review, we find that consideration of only two are necessary to decide this case. These issues are: 1) Did the trial court err in determining that Romain as vendor and grantor divested himself of all alleged rights to repossession under a contract for deed covering the property upon delivery of a warranty deed to the partnership, vendee and grantee? 2) Did the trial court err in holding that Romain failed to mitigate his damages and therefore should not be allowed to assert a right of indemnity against the partnership for damages caused by the partnership’s default on the mortgage? The facts in this case are somewhat complicated. On July 26, 1979, John Romain agreed to sell his farm by contract for deed to the partnership for $4,635,000. When this contract was entered into, the farm was subject to a mortgage held by John Hancock Mutual Life Insurance Company (John Hancock). As part of the purchase price, the partnership agreed to pay the remaining balance owed John Hancock by Romain. On July 31, 1979, Earl Schwartz as an individual delivered his personal guaranty of Romain’s note, to the extent of $1,000,000, to John Hancock. In January 1980, the partnership paid off the balance owed Romain on the contract for deed. Romain then conveyed the legal title by warranty deed to the partnership, “subject to,” the John Hancock mortgage. In 1986 and 1987, payments on the mortgage were not made, putting the note and mortgage in default. As a result, John Hancock sued to foreclose on the property. Named as defendants were the partnership and the individual partners, Earl Schwartz in his individual capacity as guarantor, John and Maradel Romain and other lienholders. Upon learning of the default, Romain cross-claimed against the partnership and sought cancellation of the contract for deed, possession of the property and growing crops, and all monies from any federal farm programs on the farm. On August 29, 1988, the trial judge granted John Hancock a decree of foreclosure with a judgment against John and Maradel Romain for $3,966,973.46, and a judgment against Earl Schwartz based on his guaranty in the amount of $1,269,310.87. The trial judge made separate Findings of Fact, Conclusions of Law and Judgment on Romain’s cross-claim. On this issue, the trial court denied Romain relief and redemption rights and let the partnership in possession of the farm property and crops, and all monies from the 1987 and 1988 farm programs. In reaching this conclusion, the court found that Romain lost all rights to repossession of the property upon delivery of the warranty deed by him to the partnership. Because he had no right to possession of the property, the trial court also found that Romain had no claim to any growing crops or farm program money. Rather, his only existing remedy under the contract for deed was indemnification by the partnership for damages sustained as a consequence of the default. Any right to indemnification, however, was contingent upon Romain’s mitigation of damages. In August of 1988, John Hancock wrote Romain and informed him that if he executed a deed transferring all of his rights and interest in the property to John Hancock, he would be absolved of all claims against him resulting from the foreclosure and any deficiency which may arise. Romain refused to execute such a deed. The trial court found this refusal to be a failure on his part to mitigate damages. Consequently, Romain was denied indemnification for any deficiency judgment which may arise from the foreclosure sale. This appeal followed. I Romain argues that his delivery of the warranty deed to the partnership did not operate to divest him of his right to repossession of the farm under the contract for deed. We disagree. In support of our conclusion, we begin by examining two statutes. Section 70-1-508, MCA, provides that a grant of property takes effect only upon delivery by the grantor. Moreover, § 70-1-510, MCA, provides that a grant cannot be delivered conditionally. Rather, delivery to a grantee is deemed to be absolute and the instrument takes eifect upon its delivery. Any prior conditions are discharged at time of delivery. Examination of these two statutes leads to the conclusion that Romain divested himself of all interest in the property upon delivery of the deed to the partnership. The language of the warranty deed is clear. Romain gave up the legal title and any other interest in the property. Romain argues, however, that it was not his intent, upon delivery of the deed, to give up his right to repossession upon foreclosing or canceling the contract for deed. He maintains that it was always his intention, to allow the forfeiture clause of the contract for deed to remain in eifect until the John Hancock loan was fully repaid. Because he remained liable for any deficiency underlying the multimillion dollar mortgage, Romain argues that his intention to retain his right to repossession should be obvious. We recognize that a valid delivery of title requires not only actual manual transfer, but also an intent on the part of the grantor to pass title to the property. Hartley v. Stibor (Idaho 1974), 525 P.2d 352, 355. Therefore, it is possible that there is no legal delivery although the instrument has been delivered to the grantee. Hayes v. Moffatt (1928), 83 Mont. 214, 226, 271 P. 433, 437. Romain argues that this lack of intent is evidenced by the default provision within the contract for deed and the language within the warranty deed which states that the conveyance is “subject to” the John Hancock mortgage. This logic fails in light of Montana statutory law, the language of the warranty deed, and established case law. Section 70-1-519, MCA, in accordance with established case law, provides that upon transfer of property, the transferee obtains all title held by the transferor unless a different intention is expressed or is necessarily implied. As stated earlier, Romain maintains that this intent should be implied from the language within the contract ad the warranty deed, and the circumstances surrounding the conveyance. The language of the deed giving up all right, title and interest in the property clearly indicates Romain’s intent to transfer full title to the partnership, including all his security interest. The fact that the warranty deed contained language stating that it was “subject to” the John Hancock mortgage does not render inoperative the presumption that Romain intended to convey his entire interest. It is presumed that one who conveys property by deed intends to convey his entire interest unless a portion of the interest is expressly excepted. The words “subject to” are a limitation upon the warranty of title and not such an exception. First National Bank of Denver v. Allard (1972), 31 Colo.App. 391, 506 P.2d 405, 406. Moreover this intention, manifested by the deed, prevails over any contrary intent which may be gleamed from the contract for deed. It has long been recognized that an unambiguous provision in a deed prevails over an inconsistent provision in a sales contract pursuant to which the deed was given. Johnson v. Ware (1943), 58 Cal.App.2d 204, 136 P.2d 101, 102; McCafferty v. Young, (1964), 144 Mont. 385, 397 P.2d 96. II Romain next contests the trial court’s decision to deny him any right to indemnity for damages sustained as a result of the respondent’s default. The trial court ruled that Romain failed to mitigate his damages by refusing to execute a deed transferring all of his rights in the property to John Hancock. In exchange for this performance, John Hancock promised to absolve Romain of any possible deficiency judgment. Because of this failure to mitigate, the court held that Romain could not avail himself of any indemnification by the partnership for damages sustained as a consequence of their default. In this regard, we disagree with the trial judge. A damaged party is only expected to do what is reasonable under the circumstances and need not embark upon a course of action which may cause further detriment to him. Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 414 P.2d 918. Romain may have reasonably determined that a release of his interest in the property to John Hancock would jeopardize his ownership of the claim here. Therefore, we decide that under these facts, Romain was under no duty to sign over the deed to John Hancock until he exhausted his remedies. However, as a result of the holding in this case, Romain could now be required to transfer all of his rights in the property pursuant to John Hancock’s offer. Accordingly, on this issue the trial court is reversed and the case is remanded for proceedings consistent with this opinion. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, WEBER and GULBRANDSON concur.
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00-276 02/15/01 Affirmed Workers’ Compensation Court
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00-868 01/04/01 Denied Original Proceeding Mandamus
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On April 17, 2000, the defendant was sentenced to a five (5) year commitment to the Department of Corrections. 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 Kathleen Jenks. 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. However, the Board orders that the Department of Corrections immediately screen this defendant for all available community placement programs, including but not limited to: pre-release placement, the Connections Corrections Program in Butte, Montana, and ISP. The defendant does not require the security as provided by the Montana State Prison. DATED this 27th day of November, 2000. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 The Appellant, Michael Carl Haser (Haser), appeals from an order and a judgment entered by the Fourth Judicial District Court, Missoula County. The order denied Haser’s motion to dismiss due to the alleged violation of his constitutional right to a speedy trial. The judgment sentenced him to 40 years for one count of sexual intercourse without consent, and a concurrent sentence of six months for one count of sexual assault. Haser was found guilty of both counts following a jury trial. Haser argues that the District Court erred by denying his motion to dismiss for lack of a speedy trial, and that the evidence before the jury was insufficient to sustain'a conviction for sexual intercourse without consent. ¶2 We affirm in part and reverse in part. ¶3 Haser raises the following two issues: 1. Did the District Court err in denying Haser’s motion to dismiss for lack of speedy trial? 2. Was the evidence before the jury sufficient to sustain the conviction of sexual intercourse without consent? FACTUAL AND PROCEDURAL BACKGROUND ¶4 At issue on appeal is whether Haser was afforded a speedy trial, and whether the evidence was sufficient to sustain his conviction for sexual intercourse without consent involving two victims. Thus, the underlying factual and procedural background detailing the sexual assault conviction is not pertinent to our discussion and will be addressed accordingly. ¶5 Haser operated a photography studio, Picture Perfect Studios, in Missoula, Montana, at the time the alleged crimes of sexual intercourse without consent took place. Haser also published a free monthly magazine, Missoula Magazine. The two victims, both females, sought Haser’s services as a professional photographer, specifically one who would take professional-modeling photos. Both victims were interested in pursuing modeling careers, and one testified that she hoped that her photo would appear in Haser’s magazine. One victim paid for her photo session, and the other had the option to buy photos at a later date, although Haser did not charge her for the session itself. ¶6 Each victim’s account of Haser’s conduct during the photo sessions is similar. Each woman testified that she was alone in the studio with Haser during the scheduled appointment. One victim testified that the session lasted six hours, and the other testified that her session lasted two hours. It is undisputed that the victims understood that they would pose before Haser wearing a variety of attire belonging to them or Haser, including swimsuits, ánd that the “modeling” involved striking poses similar to those found in fashion magazines. ¶7 What was not understood or disclosed prior to the photo sessions was Haser’s insistence that he be allowed to rub lotion or apply makeup to their bodies, including their bare breasts. Haser similarly surprised the victims when he informed them that in order to avoid "panty lines" they would not be permitted to wear underwear. Haser apparently persuaded the victims that such conditions were necessary to improve the quality of the photos. Both women removed their underwear upon Haser’s request, and allowed him to personally apply either lotion or makeup to their bare breasts. ¶8 Haser also repeatedly insisted that he had to adjust or re-position them in a particular pose, which also involved his touching them. It was during these sudden and frequent “adjustments” that one of his hands would slip under the women’s clothing, rub between their legs, and up against their pubic region. The testimony reveals that his explanation at the time was that such interplay between his hand and the women’s vaginal areas was strictly for the sake of attaining.the optimal pose which would produce high quality photos. Haser does not deny now, on appeal, that his touching the two victims as described at trial constituted “penetration” pursuant to Montana law governing the offense of sexual intercourse without consent. ¶9 Neither victim abruptly ended the photo sessions due to Haser’s conduct, however. Apparently, the victims voiced little or no objection to Haser’s conduct during their respective sessions-due, apparently, to the suddenness of his actions and the resulting surprise or shock. Rather, at the time of the incidents, the victims believed or were led to believe that such treatment was incidental in the context of a professional model’s photo session, although both testified that they thought at the time, as well as afterward, that Haser’s touchings were odd, disgusting, and made them uncomfortable. The two victims testified that Haser’s conduct elicited embarrassment, surprise, shock, anger, and fear. ¶10 Haser’s conduct with the two foregoing victims was not limited to them alone. Rather, the evidence indicates he routinely took similar liberties with other clientele. As a result of one victim coming forward, which led to an extensive police investigation, Haser was charged on November 12,1997, with eleven counts of misdemeanor sexual assault in violation of § 45-5-502, MCA, or, in the alternative, eleven counts of misdemeanor assault in violation of § 45-5-201, MCA, and six counts of sexual intercourse without consent, in violation of § 45-5-503, MCA. On December 3, 1997, Haser entered not guilty pleas to all counts. ¶11 The State amended its information on December 22, 1997, increasing the number of counts of sexual intercourse without consent to eight. Haser entered a not guilty plea to the amended information on January 7, 1998. ¶12 On March 23,1999, the State filed a second amended information, which consolidated the prior multiple counts into two. Under Count I, the State charged Haser with sexual intercourse without consent as a continuing course of conduct involving four victims, and under Count II, the State charged him with misdemeanor sexual assault as a continuing course of conduct involving 14 victims. Haser entered not guilty pleas to both counts. ¶13 Prior to trial, Haser filed a motion to dismiss for lack of a speedy trial. The District Court denied his motion at the conclusion of a March 25, 1999 hearing, and issued an opinion and order on April 1, 1999. Haser contended that the length of delay-502 days-from the time the original charges were filed on November 12, 1997, until the scheduled trial date of March 29,1999, denied his constitutional right to a speedy trial. The court concluded that the State was responsible for 276 days of the delay, and Haser was responsible for the remaining 226 days. The court concluded that the defendant had failed to demonstrate he had been prejudiced by the State’s delay. ¶14 A jury trial commenced March 29,1999. At the close of the State’s case in chief, which included testimony from the victims, the daughter of one victim, police investigators, and an expert witness, Haser moved for a directed verdict on the ground that the evidence presented was insufficient to take the matter to the jury. The court denied the motion. Haser then called six witnesses, all women, to testify on his behalf. The witnesses testified that they knew Haser and in the past had either worked for or modeled for him-or both. Their testimony was consistent in denying that Haser had ever engaged in inappropriate conduct with them during modeling sessions. None of the witnesses testified that they were present during the victims’ photo sessions. None of the witnesses testified that they knew any of the victims. ¶15 On April 5, 1999, the jury returned a guilty verdict on the first count, sexual intercourse without consent, as applied to two of the four victims — meaning the jury found Haser not guilty of committing the offense with two of the four victims. The jury also returned a guilty verdict on the second count, sexual assault, "committed on 11 different victims. Two of these 11 victims were the alleged victims of the sexual intercourse without consent charge that the jury found Haser not guilty of committing. ¶16 On June 2, 1999, the District Court sentenced Haser to 40 years with 20 suspended on the first count, and to six months on the second count. The judgment was entered on August 30,1999. Haser appeals the denial of his motion to dismiss due to the violation of his constitutional right to a speedy trial, and the judgment that sentenced him to 40 years for the offense of sexual intercourse without consent. STANDARD OF REVIEW ¶17 We recognize that the violation of a defendant’s right to a speedy trial is a question of constitutional law which requires that we review a district court’s decision to determine if it is correct. See State v. Taylor, 1998 MT 121, ¶ 18, 289 Mont. 63, ¶ 18, 960 P.2d 773, ¶ 18 (citation omitted). ¶18 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. See State v. Berger, 1998 MT 170, ¶ 25, 290 Mont. 78, ¶ 25, 964 P.2d 725, ¶ 25 (citations and quotations omitted). DISCUSSION Issue 1. Did the District Court err in denying Haser’s motion to dismiss for lack of speedy trial ? ¶19 Haser argues that the 276 day-delay attributable to the State pursuant to the District Court’s order was incorrectly calculated, and that the State’s evidence failed to disprove the presumption that he was prejudiced by the 502-day delay in this matter going to trial. Therefore, he contends that the District Court erred when it denied his motion to dismiss. We disagree. ¶20 Since 1972, we have reviewed claims that a speedy trial was denied in violation of the Sixth Amendment to the U.S. Constitution, and Article II, Section 24, of the Montana Constitution, based on the general guidelines established by the U.S. Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. See, e.g., City of Billings v. Bruce, 1998 MT 186, ¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19 (citations omitted). ¶21 The Barker test offers four criteria for a court’s consideration: (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. See Bruce, ¶ 19 (citing Barker, 407 U.S. at 530, 92 S.Ct. at 2192). As this Court emphasized in Bruce, however, the four factors established by Barker “are necessarily general guidelines to be applied on a case-by-case basis to the unique circumstances of each case.” Bruce, ¶ 20 (quoting from Barker, 407 U.S. at 533, 92 S.Ct. at 2193, that “these factors have no talismanic qualities; court’s must still engage in a difficult and sensitive balancing process”). ¶22 Primarily at issue here is the fourth element, that Haser suffered prejudice due to the delay. We stated in Bruce that prejudice sufficient for a dismissal can be established based on any one or more of the following factors: (1) pretrial incarceration, (2) anxiety and concern to the defendant, and (3) impairment of the defense. Bruce, ¶ 19 (citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193). Of these concerns, the U.S. Supreme Court has stated the following about their order of importance: 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. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. ¶23 The District Court followed the three-part test in Bruce for determining prejudice, and concluded that (1) Haser had been released on his own recognizance prior to trial; (2) Haser had not suffered any more “inordinate pretrial anxiety” than “any other defendant charged with a felony” and as time passed and the publicity died down the “tension and stress on the Defendant lessened;” and (3) Haser’s defense was not "impaired or prejudiced" by the delay, rather, the “State’s witnesses have suffered on parts of their recollection to the benefit of the Defendant.” ¶24 Haser’s first contention is that the court miscalculated the number of days of delay attributable to the State, and therefore incorrectly analyzed the “reason for the delay” prong of the four-part Barker test. We conclude that this argument is without merit. ¶25 As this Court has stated, once the delay attributable to the State exceeds 275 days, speedy trial analysis is triggered and prejudice is presumed. See Bruce, ¶ 56. Thus, because 276 days of the 502-day delay were allocated to the State, the burden shifted to the State to demonstrate that Haser had not been prejudiced by the delay. See Bruce, ¶ 56. If the State satisfied its burden of demonstrating that Haser had not been prejudiced by the delay, the burden would have shifted to him to show that he had been prejudiced. See State v. Hardaway, 1998 MT 224, ¶ 23, 290 Mont. 516, ¶ 23, 966 P.2d 125, ¶ 23. This is one of the primary functions of the “reason for delay” prong: to conclusively establish a burden shift for the determination of prejudice. Here, whether the delay attributable to the state was 276 days or 418 days (as Haser argues), the State nevertheless bore the initial burden of showing that the delay did not cause Haser prejudice. Neither party contests this burden shift, and we conclude that the District Court did not error in assigning the burden to the State. ¶26 Further, Haser suggests the alleged 418 days of delay attributable to the State “may have been intentional rather than mere institutional delay.” We agree that the constitutional question of a speedy trial is primarily designed to protect the accused from oppressive tactics of the prosecution, and that a showing that the delay was an intentional device to harass or gain tactical advantage over the accused rather than ordinary “institutional delay” is another primary function of the “reason for delay” prong of the Barker test. See State v. Heffernan (1991), 248 Mont. 67, 73, 809 P.2d 566, 569 (citing Barker, 407 U.S. at 529, 92 S.Ct. at 2191). Institutional delays, on the other hand, weigh less heavily against the State in the Barker balancing process than intentional delays resulting from oppressive tactics. See Heffernan, 248 Mont. at 73, 809 P.2d at 570 (citation omitted). ¶27 On appeal, Haser does not support his shadow of an innuendo with reference to any evidence or authority. We conclude that there was no showing by Haser, or any other evidence, that the State intentionally delayed his trial to harass him or to gain some tactical advantage over him. We agree with the State that the reason for its delay here was purely institutional in nature. See Heffernan, 248 Mont. at 73, 809 P.2d at 570. ¶28 Finally, this Court has never established a threshold number of days that conclusively establishes the denial of the right to speedy trial without the necessary finding of prejudice to the defendant. See Bruce, ¶ 56 (citing Doggett v. United States (1992), 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520). Although encouraging the District Court to entertain such a threshold, Haser does not suggest that this Court should do so now here on appeal, in light of his claim of error. ¶29 We conclude, therefore, that the District Court did not err in determining that, due to the length of the institutional delay attributable to the State, the State carried the initial burden of rebutting the presumption that Haser had been prejudiced by the delay. Therefore, we turn our attention to the issue of prejudice. ¶30 Of the three factors that a court considers under the “prejudice to the defense” prong of the Barker test, Haser and the State agree that the first, “pretrial incarceration,” is not at issue. ¶31 As for the next factor, “anxiety and concern to the defendant,” Haser contends that the State essentially offered no evidence to rebut the presumption of prejudice-other than what amounted to the State calling upon its own investigators to opine that they were not aware of any anxiety or concern by Haser. Haser argues that “the detectives had neither the opportunity, the qualifications, nor the inclination to determine whether the defendant endured anxiety and concern during the 500 days he awaited tri,al.” ¶32 This Court has previously stated, however, that since it is nearly impossible for the State to prove that anxiety and concern do not exist, the State’s burden to show a lack of anxiety becomes “considerably lighter in the absence of more than marginal evidence of anxiety.” State v. Williams-Rusch (1996), 279 Mont. 437, 452, 928 P.2d 169, 178 (citations omitted). ¶33 Here, the State asserted through testimony and exhibits that to the best of its knowledge Haser had not undergone any treatment or otherwise suffered any extreme distress due to pretrial anxiety or concern, and that he appeared to be maintaining employment and could continue to pursue business ventures related to the field of photography. We conclude that the District Court did not err in determining that, based on this evidence, the State met its burden in rebutting the presumption that Haser experienced prejudicial “anxiety and concern,” during the 500-day delay before trial sufficient to warrant a dismissal. ¶34 In turn, we agree with the State that the anxieties expressed by Haser in rebuttal at his motion to dismiss hearing were clearly attributable to the fact that as a proprietor of a business that held its doors open to the general public, he stood charged of sexual crimes involving a substantial number of customers who sought his professional services. That these charges would directly and adversely impact his business as well as his reputation in the community speak far more to the nature of the crimes themselves than the delay in commencing the trial — whether that delay was 276, 391, or 418 days. We conclude that, at best, Haser presented marginal evidence of prejudicial anxiety and concern that can be attributed to the institutional delay in going to trial. ¶35 The third and final consideration under the element of prejudice, “impairment of the defense,” which is the most important; focusses primarily on a defendant’s ability to adequately prepare his case. Specifically, we look at whether the delay directly affected the defendant’s ability to call witnesses on his own behalf — those who can be located and accurately recall events — and whether the delay directly diminished and impeded the defendant’s own ability to present any other evidence, or develop a particular theory or line of defense. See Bruce, ¶ 71-73; State v. Keating (1977), 285 Mont. 463, 475-76, 949 P.2d 251, 259. ¶36 The State, in this instance, argues it sufficiently rebutted the presumption that the institutional delay in this matter impaired Haser’s ability to prepare his defense. In sum, the State argued to the District Court that it had provided Haser all discoverable materials that could assist his defense and that none of his witnesses would provide exculpatory evidence. The State also argued that it had not impaired Haser’s ability to assert an affirmative defense on account of any delay in this matter. On appeal, the State correctly states that Haser offered no evidence at the speedy trial hearing to restore the presumption of prejudice on this basis, and asserts that no such argument has been made here. ¶37 Haser does not argue that any of his witnesses were unavailable due to the delay. He does not dispute that all of his witnesses supplied character testimony only, or that not one of his witnesses were present during any of the victims’ photo sessions, or that not one of his witnesses knew or had had any contact with any of the victims. Thus, their memory of witnessed events would be marginal at best. As the District Court stated, witnesses for the State — i.e., the victims of the alleged offenses-were far more susceptible to memory loss. ¶38 Further, Haser has not contested here on appeal the State’s assertion that it timely provided him with discoverable information concerning its witnesses and their statements, materials seized during the search of his business, and any statements he may have made. Likewise, Haser has not suggested that any such delay in this matter affected his ability to establish a defense, such as the affirmative defense of “alibi,” which he alluded to in the omnibus hearing in early 1998, and in his February 27,1998 motion to dismiss. In sum, Haser has not presented any argument, let alone evidence, that due to the State’s delay in this matter he was not afforded an ample opportunity to review the State’s case against him, refresh his own recollection of events, develop his theory of the case, or establish a credible affirmative defense. ¶39 Finally, we observe that the focus of Haser’s prejudice argument centers on the “anxiety and concern” factor. Restated, Haser’s argument on appeal regarding the factor of “impairment of defense” is that the State failed to meet its burden and, therefore, he is relieved of his burden to present evidence of prejudice in rebuttal. We disagree, and conclude that Haser’s ability to prepare his defense was not prejudiced by the delay in this matter going to trial. ¶40 Accordingly, we affirm the order of the District Court denying Haser’s motion to dismiss for lack of a speedy trial. Issue 2. Was the evidence before the jury sufficient to sustain the conviction of sexual intercourse without consent ? ¶41 Haser does not deny that any of the alleged conduct occurred, which includes various accounts of his hand, thumb, or fingers penetrating each victim’s vaginal region. He does not deny that he deceived the women into submitting to conduct that obviously exceeded the reasonable boundaries of what constitutes a model’s photo session with a professional photographer. In Haser’s brief to this Court he blatantly admits that he used the same "it’s all for the pictures" and "panty line" ploys on both victims to get them to remove their underwear, that it was “certainly misleading” for him to put his hand between one of the victim’s legs “up to her vaginal area under the guise of showing her how to pose,” and that both victims fell for his deceptions “hook, line and sinker.” ¶42 Instead, Haser focusses this Court’s scrutiny of his conviction on the statutory element “without consent,” contending that neither victim was “compelled to submit by force” or was “incapable of consent” as required under the governing statutes. ¶43 The State counters by arguing that the victims in this instance were subject to what it contends was “constructive force,” or that force may be implied due to the sudden and surprise nature of the “sexual attack,” and, alternatively, both victims were physically incapable of consenting because Haser abused his position of power and trust over the young women, and lulled them into a state of vulnerability not unlike sleep or intoxication. ¶44 Under § 45-5-503, MCA, a person commits the offense of sexual intercourse without consent if he or she “knowingly has sexual intercourse without consent with another person.” Under the general definitions provided under § 45-2-101, MCA, “sexual intercourse” includes “penetration of the vulva ... of one person by a body member of another person . . .” and “any penetration, however slight, is sufficient.” Accordingly, we conclude that there was sufficient evidence presented at trial for a rational trier of fact to find that Haser committed the essential element of “sexual intercourse” with the victims beyond a reasonable doubt. ¶45 Under the definitions provided by § 45-5-501(1), MCA, which are expressly applicable to the offense of sexual intercourse without consent under § 45-5-503, MCA, the term “without consent” means: (a) the victim is compelled to submit by force against the victim or another; or (b) the victim is incapable of consent because the victim is: (i) mentally defective or incapacitated; [or] (ii) physically helpless . . , Under § 45-5-501(2), MCA, the term “force” as used in subsection (1), sub-part (a), means: (a) the infliction, attempted infliction,, or threatened infliction of bodily injury or the commission of a forcible felony by the offender; or (b) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat. ¶46 The instructions presented to the jury by the District Court followed the foregoing statutory definitions. The jury was also instructed that “Resistance by the victim is not required to show lack of consent” and that “Force, fear, or threat is sufficient alone to show lack of consent.” This set of instructions is a verbatim recital of § 45-5-511(5), MCA, which provides provisions generally applicable to sexual crimes. ¶47 Under the general definitions of § 45-2-101, MCA, a person is “mentally incapacitated” if he or she is “rendered temporarily incapable of appreciating or controlling the person’s own conduct as a result of the influence of an intoxicating substance.” Obviously, this definition has no application to the factual circumstances sub judice. Under this same statute, a person is “physically helpless” when he or she is “unconscious or is otherwise physically unable to communicate unwillingness to act.” This statutory definition was not presented to the jury in the court’s instructions. A. The use of “force” under § 45-5-501(l)(a), MCA. ¶48 The State concedes that Haser did not threaten either victim. Thus, in order to satisfy the “compelled to submit by force” element of “without consent,” under §§ 45-5-501 and 503, MCA, there must be evidence that Haser inflicted or attempted to inflict bodily injury, or committed a forcible felony. Under the general definitions of § 45-2-101, MCA, “bodily injury” is defined as “physical pain, illness, or an impairment of physical condition and includes mental illness or impairment.” Under the same statute, a “forcible felony” means “a felony that involves the use or threat of physical force or violence against any individual.” The instructions presented to the jury did not include these statutory definitions. ¶49 The testimony of the two victims, viewed in a light most favorable to the. State, indicates that they experienced shock, embarrassment, surprise, anger, and perhaps even a trace of fear during the course of their respective photo sessions with Haser. The State has not argued, pursuant to state law, that any of these responses are a species of pain, illness, or impairment inflicted by Haser in order to compel them to submit to his repeated acts of digital penetration. ¶50 Instead, the State argues that this Court should follow other jurisdictions that have construed the essential element of “force” to include “constructive force.” See State v. Brown (N.C. 1992), 420 S.E.2d 147, 150 (stating that the “requisite force may be established either by actual, physical force or by constructive force in the form of fear, fright, or coercion”) (citation omitted). ¶51 Contrary to the State’s argument, however, Montana’s statutory scheme accounts for “constructive force” pursuant to the amended version of § 45-5-501(2), MCA (amended in 1991), which provides that “force” includes threats of bodily injury or “substantial retaliatory action.” Thus, under the current law in Montana, actual physical force is no longer necessary to satisfy the essential “submit by force” element of the offense of sexual intercourse without consent. Again, as conceded by the State, there was no evidence presented at trial that Haser, via his physical or verbal conduct, threatened either victim in any manner. Mere chicanery simply cannot be construed as a form of force under our governing statutes. Likewise, evidence that a victim is frozen in a state of shock or in a state of fear — but not as a result of a threat or as a result of an attempted or actual infliction of bodily injury or the commission of a forcible felony-is insufficient to establish that a defendant did in fact use "force" to compel a victim’s submission to sexual intercourse. Thus, we conclude that Haser did not use “force” in compelling the victims to submit to sexual intercourse. ¶52 The State also argues that this Court should equate “surprise” with “force,” and again turns our attention to case law from other jurisdictions. The State reasons that, due to Haser’s surprise “attacks,” the victims were not afforded the opportunity to consent, and therefore the use of force may be implied by the act of penetration itself. This argument formed the basis of the State’s closing argument to the jury that Haser used force: “If you’re surprised, then the force required to penetrate or the force required to touch is súfficient to satisfy the force requirement.” See State v. Atkins (Mo. 1926), 292 S.W. 422, 426 (stating that "illicit sexual connection" with a woman may be accomplished “through surprise, when she is awake, but utterly unaware of his intention in that regard” and therefore “force merely incident to penetration should be deemed sufficient force within the meaning of the rape statute”). See accord People v. Borak (Ill.App.Ct. 1973), 301 N.E.2d 1, 5 (citing Atkins and concluding that “force” in the statutory sense is present when the victim is incapable of consenting to the sexual act involved because she has been given no opportunity to consent and that force is “implied when the rape or deviate sexual acts proscribed by statute are accomplished under the pretext of medical treatment when the victim is surprised, and unaware of the intention involved”). The prosecution’s comments to the jury, however, were not a correct statement of the law regarding the use of “force” under our sexual intercourse without consent statutes. ¶53 In contrast to Montana’s clear statutory definition of “force,” the Illinois court decision cited by the State recognized that its statutory requirement — that the proscribed sexual intercourse must be committed “by force and against the will of the other person”-could be present in certain circumstances “where no actual force is used,” and where “no actual violence is either committed or threatened.” See Borak, 301 N.E.2d at 4-5. See also Brown, 420 S.E.2d at 150 (stating that “ Toy force and against the will of the other person’ as used in N.C.G.S. § 14-27.5(a)(1) has the same meaning as it did at common law when it was used to describe an element of rape” and that the element is present if the defendant “uses force sufficient to overcome any resistance the victim might make”). ¶54 In sum, the case law cited by the State, however compelling, simply does not comport with Montana’s clear legislative mandate that “force” must be related somehow to bodily injury, the attempted infliction of bodily injury, or an actual threat of some kind. We conclude that “surprise” penetration, alone, is insufficient to establish the essential element of “without consent” under § 45-5-501(l)(a), MCA, which requires that the victim was “compelled to submit by force.” ¶55 Accordingly, we hold that there was insufficient evidence to support a conviction for sexual intercourse without consent in that a rational trier of fact could not have properly found that the essential element of “without consent,” based on either victim being “compelled to submit by force” pursuant to § 45-5-501(l)(a), MCA, had been proven beyond a reasonable doubt. B. “Incapable of consent” under § 45-5-501(l)(b), MCA. ¶56 The State next contends that implicit in the definition of “incapable of consent,” under § 45-5-501(l)(b), MCA, is the notion that the victim must have an opportunity to consent or to communicate a lack of consent, and suggests that Haser, as a professional photographer, managed to exploit his position of trust with the young hopeful models and thereby “lull” his victims into a state of mind analogous to intoxication or sleep, which satisfy, respectively, the statutory requirements of being mentally incapacitated or physically helpless. See State v. Graves (1995), 272 Mont. 451, 457, 901 P.2d 549, 553 (victim "passed out" due to use of alcohol); State v. Lundblade (1986), 221 Mont. 185, 187, 717 P.2d 575, 577 (victim sound asleep and did not consent to sexual acts with defendant); State v. Gould (1995), 273 Mont. 207, 221, 902 P.2d 532, 541 (sufficient evidence for the jury to find beyond a reasonable doubt that victim was mentally incapacitated due to intoxication). ¶57 The “incapable of consent” alternative under the “without consent” definition of § 45-5-501, MCA, was not argued by the State in closing argument to the jury, but was included in the jury instructions and recited to the jury by the District Court. As noted, the statutory definition of “physically helpless,” which is the only viable argument that the victims here were “incapable of consent” under § 45-5-501, MCA, was not presented to the jury. ¶58 Contrary to the State’s argument, we conclude there is indeed a “logical difference” between Haser’s sexual intercourse with the two victims and sexual intercourse with a sleeping or intoxicated victim. Namely, the victims here were awake and sober. Both were therefore conscious and physically capable of communicating an unwillingness to act, pursuant to §§ 45-5-501(l)(b)(ii) and 45-2-101, MCA, which defines “physically helpless.” ¶59 Further, contrary to the State’s encouragement, we are not at liberty to read into the already thoroughly defined statutory term “incapable of consent” such implicit notions as “opportunity to consent” or “awake and sober but unaware” to fit those circumstances where the victim has been “lulled” by another person. See State v. Goodwin (1991), 249 Mont. 1, 22-23, 813 P.2d 953, 966 (quoting 73 Am. Jur.2d Statutes § 295). Although we must construe the provisions of a penal statute “according to the import of their terms with a view to effect its object and to promote justice” (see § 45-1-102(2), MCA), the Legislature has provided specific definitions of the specific conditions that render a person “incapable of consent” under § 45-5-50 l(l)(b), MCA — statutory definitions which are noticeably absent from the State’s argument here, and were not addressed by the State at trial in its development of its theory of the case or incorporated in its instructions to the jury. ¶60 We therefore conclude that there was insufficient evidence to support a conviction for sexual intercourse without consent. We hold that a rational trier of fact could not have properly found that the essential element “without consent” due to the victims being “incapable of consent” pursuant to § 45-5-501(l)(b), MCA, had been proven beyond a reasonable doubt. ¶61 In sum, there was simply no evidence offered at Haser’s trial that either victim was compelled to submit to his digital penetration by “force” or that either victim was “incapable of consent” because she was mentally incapacitated or physically helpless. Accordingly, without such evidence, a rational trier of fact could not have found that the essential element “without consent” had been proven by the State beyond a reasonable doubt. We therefore reverse that portion of the District Court’s judgment that determined that Haser was guilty of the offense of sexual intercourse without consent. ¶62 Accordingly, the judgment of the District Court is affirmed in part, reversed in part, and remand for further proceedings consistent with this opinion. CHIEF JUSTICE GRAY, JUSTICES REGNIER and LEAPHART concur. In its response brief to Haser’s motion to dismiss, the State conceded that it was responsible for 391 days of delay. Haser does not challenge his conviction for sexual assault involving a total of 11 women, all of whom he similarly deceived with his self-described “it’s all for the camera” scheme. Like the crime of “sexual intercourse without consent” an element of sexual assault is “without consent.” See § 45-5-502, MCA. The definition of “without consent,” provided under § 45-5-501, MCA, however, is expressly applicable only to the offense of sexual intercourse without consent, § 45-5-503, MCA. The Legislature has not similarly defined the term as used in the sexual assault statute. Regardless, Haser has not argued that his sexual assault conviction should be reversed on the grounds argued under issue two. The jury at Haser’s trial was instructed on both subsection (a) and (b)(i)-(ii) of the “without consent” definition, with the exception of the “mentally defective” requirement.
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On August 13, 1999, the defendant was sentenced to twenty (20) years in the Montana State Prison, to run concurrently to the sentences imposed in Cause Numbers DC-93-555 and DC-98-870. 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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00-827 01/17/01 Granted Original Proceeding Mandamus
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 David R. Aliff (Aliff) was convicted in Montana’s First Judicial District Court, Lewis and Clark County, of attempted deliberate homicide and sexual intercourse without consent and now appeals. We affirm. ¶2 The issue on appeal is whether or not Aliff s trial counsel was ineffective for not offering an alternative jury instruction regarding the offense of aggravated assault, resulting in unfair prejudice. BACKGROUND ¶3 In March 1998, Michelle Hansen (Michelle) met friends for an evening of socializing in Helena, Montana. She consumed numerous alcoholic beverages in the course of the evening, became intoxicated, and proceeded home about 2 a.m. in her car. A co-worker followed her for a ways to make sure she was all right, but did not drive with her all the way to her home. At some point she passed Aliff on the streets, and they waved to each other as they had known each other for a number of years. Upon arrival at her home, she apparently lost consciousness in her car for a short period of time. Her next conscious memory was as a passenger in the car of David Aliff. ¶4 David Aliff had been fishing that evening with his brother-in-law. He went to the home of his brother-in-law after fishing and then departed early in the morning and noticed Michelle driving home. He followed her to her home and Michelle inexplicably ended up in his car. ¶5 Aliff drove Michelle to a fishing access site on Lake Helena and proceeded to rape her both vaginally and anally. When she struggled he struck her in the head several times. After being raped Michelle pulled her slacks on and told Aliff she needed to go to the bathroom. When she left the car he tackled her from behind, pinning her to the ground with her arms behind her. Aliff retrieved a knife from his pocket. Upon hearing a clicking sound, Michelle knew that he had a knife. She screamed. Aliff stabbed her and began cutting her neck, resulting in puncture wounds and deep lacerations, somehow narrowly missing the carotid and superior thyroid arteries and internal jugular vein. Michelle worked one hand free and attempted to stop Aliff from cutting her throat, but to no avail. ¶6 Michelle held her breath to feign death, and Aliff stopped cutting her throat. He dragged her to his car, and placed her head beneath a passenger-side tire and she surmised that he intended to run over her head with the vehicle. Not wanting Aliff to know that she was still alive and then return to kill her with the knife, Michelle squirmed forward so that he might run over some part of her body, but not her head. Aliff proceeded to run over her with his car an unknown number of times, missing her head, but causing fractures to the rib cage and compression of internal organs. He also ran over her legs as evidenced by tire tracks on her body. He then left. When she could no longer see his tail lights, Michelle rose to her feet. The temperature that night was approximately 26 degrees Fahrenheit. She walked some distance to the north over the next several hours, and at approximately 7 a.m. noticed someone outside a home and began yelling to the best of her ability. A Helena firefighter and trained EMT was departing for work, heard her cries and ran toward her. He found her clinging to a barbed-wire fence. Her neck area was caked with dirt, vegetation, hair and blood from the ear-to-ear laceration and puncture wounds. The firefighter summoned an ambulance and Michelle was taken to St. Peter’s hospital in Helena. Her core temperature had fallen to as low as 86 degrees, but within a short time her condition stabilized and she identified her attacker as David Aliff. ¶7 A rape examination was performed at the hospital, at which time semen was found. Upon the issuance of a search warrant Aliffs car was seized. Also pursuant to a search warrant, Aliffs bodily fluids were obtained and sent to the Montana State Crime Laboratory in Missoula. Aliffs wife discovered blood on Aliffs pants worn that night, and later found Aliffs blood-covered knife in his robe. These items of evidence were analyzed at the Crime Lab in Missoula. A forensic scientist from the Crime Lab with approximately 25 years of lab and teaching experience testified that Michelle could not be eliminated as the donor of the blood on the knife, while Aliff was eliminated as a possible donor of the blood. Moreover, only one person in 612,000,000 would have the same DNA profile as that found in the blood on the knife. The forensic scientist further testified that only one Caucasian male in 1,193,000,000 would have the same DNA profile as found in the semen extracted from the rape examination. The semen sample was consistent with Aliff s DNA profile. Blood found on the underside of his car also matched Michelle’s. ¶8 Aliff was charged by information with attempted deliberate homicide, a felony in violation of §§ 45-5-102 and 45-4-103, MCA, and sexual intercourse without consent, a felony in violation of § 45-5-503, MCA. He initially pled not guilty to both counts, but several months later changed his plea to guilty of the charge of attempted deliberate homicide. The court dismissed the rape charge. Several months later Aliff again changed his plea to not guilty on both counts, arid the court granted the State’s motion to reinstate the original charges. ¶9 . Aliff testified in his own defense at jury trial and insisted that he did not perpetrate the crimes for which he was charged. When asked to explain how Michelle’s blood could be found on his car and his knife, and how his semen could have been found in her body in the course of the rape examination, Aliff stated that he had no explanation, and insisted that he had gone straight home from his brother-in-law’s residence after cleaning the fish they caught. In her closing statement to the jury, Aliff s counsel reminded the jury that “Mr. Aliff told you he is not guilty, that he did not do these crimes with which he is charged.... And at this moment he sits over there an innocent man.” ¶10 Despite his protestations of innocence, Aliff was found guilty of attempted deliberate homicide and sexual intercourse without consent. He now appeals, requesting remand for a new trial. DISCUSSION ¶11 The issue on appeal is whether or not Aliffs trial counsel was ineffective for not offering an alternative jury instruction regarding the offense of aggravated assault, resulting in unfair prejudice. ¶12 This Court reviews claims of ineffective assistance of counsel based on the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. State v. Gonzales (1996), 278 Mont. 525, 532, 926 P.2d 705, 710. A defendant must prove both prongs of this test, and bears a heavy burden when he desires that his conviction be reversed on the grounds of ineffective assistance of counsel. Gonzales, 278 Mont. at 532, 926 P.2d at 710. Under the first prong, the defendant must establish that counsel did not act within the range of competence demanded of attorneys in criminal cases. Under the second prong, the defendant must show that the deficient performance was so prejudicial that he did not receive a fair trial. ¶13 Acts of counsel must stem from neglect or ignorance rather than from informed, professional deliberation in order to constitute ineffective assistance to the defendant. Gonzales, 278 Mont. at 532, 926 P.2d at 710. In Gonzalez, the defendant decided as a matter of trial strategy to not offer a jury instruction regarding a defense that he could have, but chose not to raise at trial. ¶14 That is precisely the circumstance we face here. Aliff contended to the end that he did not perpetrate these crimes, that he was home resting peacefully in his bed with his wife at the time Michelle Hansen was fighting for her life in sub-freezing temperatures, her throat cut from ear to ear with his knife, tire tracks marking her body from his car. Even in the face of a daunting evidentiary record, with Michelle’s blood found on his pants, his knife and his car, and his semen found in her body, Aliff did not claim that he only intended to assault Michelle. Rather, he claimed he was innocent because he-did not commit the crimes with which he was charged or any other offense in connection with this incident. It is not ineffective assistance of counsel to not offer a jury instruction that is inconsistent with the defense. Gonzales, 278 Mont. at 532, 926 P.2d at 710. We conclude the same here. ¶15 Even when given the opportunity in front of the jury, Aliff could not and would not offer an explanation as to how this confluence of events could occur without his participation, or that he did not intend to actually kill his victim. His counsel effectively did everything within her power to suggest to the jury that there might be mitigating circumstances here, even in the face of Aliff s intransigence. A jury instruction on aggravated assault was no more warranted, given Aliff s defense, than was an instruction on a stop sign violation- neither are at issue here. We will not fault defense counsel when Aliff alone controlled his fate and chose a course of action inconsistent with the giving of any lesser included offense instruction. Because the jury instructions actually offered were consistent with Aliff s defense and therefore based on trial strategy, and did not stem from neglect or ignorance, we conclude that Aliff received effective assistance of counsel. Defense counsel’s performance was not deficient in any way.' ¶16 Because Aliff has failed to meet the first prong of the Strickland test, it is not necessary to address the second. ¶17 Affirmed. CHIEF JUSTICE GRAY, JUSTICES REGNIER and TRIEWEILER concur.
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00-418 03/13/01 Affirmed Dist. 8 (Missoula)
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On November 3,1999, the defendant was sentenced to ten (10) years in the Montana State Prison, to run concurrently with the sentences imposed in Cause No. DC-99-13726 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 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 July 28, 2000, the defendant was sentenced to two consecutive ten (10) year sentences in the Montana State Prison, with ten (10) 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 counsel 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. Done in open Court this 3rd day of November, 2000. DATED this 27th day of November, 2000. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
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01-095 03/06/01 Denied Original Proceeding Mandamus
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01-082 03/20/01 Granted Original Proceeding Habeas Corpus
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On June 22, 2000, the defendant was sentenced to the following: Count I: Five (5) years in the Montana State Prison; Count II: Five (5) years in the Montana State Prison, to run consecutively to the sentence imposed in Count I. On November 3,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Michael Klihkhammer. The State was represented by Daniel Schwarz. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the unanimous decision of the Sentence Review Division that the sentence sháll be modified as follows: Count I: Five (5) years in the Montana State Prison, with no possibility of parole for those five (5) years; and Count II: Five (5) year commitment to the Department of Corrections, to run consecutively to the sentence imposed in Count I. The defendant shall enroll in and successfully complete the Connections Corrections Program in Butte, Montana. The defendant is denied any and all driving privileges for the next ten (10) years. The Board further recommends that after the defendant completes the Connections Corrections Program that he be placed in either the intensive supervision program or a pre-release center. The reason for the modification is that the sentence as imposed was clearly inadequate for any prospects of rehabilitation for the defendant and also for public safety. Done in open Court this 3rd day of November, 2000. DATED this 27th day of November, 2000. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
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On December 8,1999, the defendant was sentenced to the following: Count I: ten (10) years in the Montana State Prison, with five (5) years suspended; Count II: ten (10) years in the Montana State Prison, all suspended; Count III: ten (10) years in the Montana State Prison, all suspended; and Count IV: ten (10) years in the Montana State Prison, all suspended. The sentences in Counts II, III, and IV shall run concurrently with each other, but consecutively to the sentence imposed in Count I. On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Bruce Gobeo. The state was not represented. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed, with the modification to the judgment that the eighteen (18) month restriction prior to.becoming eligible for placement in the Treasure State Correctional Training Program or any other community program be lifted, and effectively render that option available to the defendant. The reason for the modification is that the current restriction effectively renders the Defendant ineligible for the program which the sentencing court felt would be beneficial to the Defendant’s rehabilitation. DATED this 11th day of September, 2000. Chairman, Hon. Jeffrey H. Langton, Membér, Hon. Marge Johnson, Member, Hon. David Cybulski.
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00-825 01/17/01 Denied Original Proceeding Habeas Corpus
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On July 18, 2000, the Defendant was sentenced to a one (1) year commitment to the Department of Corrections, followed by three (3) years of probation. On November 3,2000, the Defendant's application for review of that* sentence was heard by the Sentence Review Division of the Montana Supreme Court. The Defendant was present and was represented by Michael Klinkhammer. The state was represented by Daniel Schwarz. The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon, IT IS ORDERED, ADJUDGED AND DECREED.that the sentence is amended to a thirteen (13) month commitment to the Department of Corrections, followed by four (4) years of probation. All of the existing conditions shall remain in effect, with two additional conditions imposed by the Board: 1) prior to discharge of the Department of Corrections sentence, the defendant shall enroll in and successfully complete the Connections Corrections Program in Butte, Montana; and 2) during the probationary phase of the sentence, the defendant may not own, physically possess, physically control, or operate a motor vehicle for any purpose. DATED this 8th day of December, 2000. Hon. Ted L. Mizner, District Court Judge
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On June 8, 2000, the defendant was sentenced to twenty (20) years in the Montana State Prison, with ten (10) 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 represented by Kevin Brown. 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 wás 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, with- the Board's recommendation to the Department of Corrections that the defendant be considered for the Treasure State Correctional Training Center and/or for the Connections Corrections Program in Butte, Montana. The reason for the recommendation is that the Board feels that one or both of those programs will give the defendant a realistic chance at rehabilitation; otherwise, prospects are dim. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
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JUSTICE REGNIER delivered the Opinion of the Court. ¶1 Samuel J. Grenz appeals pro se from the order granting summary judgment in favor of Fire & Casualty of Connecticut (“F&C”) issued by the Workers' Compensation Court. We affirm. BACKGROUND ¶2 The following facts are taken from our previous decisions in the “seemingly endless stream of litigation that has resulted in multiple appeals to this Court and innumerable proceedings in the Workers' Compensation Court.” Grenz v. Fire and Casualty of Connecticut (1993), 260 Mont. 60, 61, 857 P.2d 730, 731 (“Grenz III”). We need not address each of Grenz's prior claims for the purposes of this opinion. ¶3 On August 22, 1984, Grenz injured his right elbow while working on a steel railing for his employer, American Stud Company. Within a week of his injury Grenz filed a claim for workers' compensation benefits and sought treatment from Dr. Ken McFadden. American Stud's insurer, F&C, accepted liability for the right elbow injury and paid compensation and medical benefits. On December 31, 1984, and again on January 29,1985, Grenz consulted his treating physician, Dr. Ronald A. Miller, concerning his discomfort in both elbows, wrists, hands, and his cervical, thoracic, and lumbar spine. Dr. Miller diagnosed Grenz with degenerative arthritis of his fingers, wrists, and shoulders, and recurrent bursitis and epicondylitis of his elbows. On November 18, 1985, Dr. Miller provided Grenz with a note for his employer which recommended that Grenz refrain from lifting or other physical activity. Grenz did not work after November 18, 1985. ¶4 In 1991 we determined that Grenz's psychological problems and his degenerative condition were not causally related to his 1984 elbow injury. Grenz v. Fire and Cas. of Connecticut (1991), 250 Mont. 373, 380, 820 P.2d 742, 746 (“Grenz I"). Grenz also argued that his degenerative arthritis was caused by a series of “microtraumas” associated with the heavy lifting, jarring, and vibrations of the' machinery at his employment; these microtraumas, he asserted, were suffered subsequent to and separately from his 1984 elbow injury. We refused to consider this argument as Grenz had not raised in it the Workers' Compensation Court. ¶5 Following Grenz I, Grenz filed a new claim for workers' compensation benefits, asserting that his arthritis was caused by microtraumas separate and apart from, and subsequent to, the 1984 elbow injury. F&C moved to dismiss the petition, arguing that Grenz's claim was barred by res judicata or, alternatively, by the one-year statute of limitations of the Workers' Compensation Act. The Workers' Compensation Court granted F&C's motion on the basis of res judicata. Grenz appealed. ¶6 In Grenz v. Fire and Casualty of Connecticut (1992), 255 Mont. 121, 124, 841 P.2d 494, 496 (“Grenz II’), we reversed the Workers' Compensation Court's determination that his microtrauma claim was barred by res judicata and remanded. On remand,, the hearing examiner determined that Grenz had not filed his new claim within one year after he had stopped working for American Stud in 1985 and, therefore, he had not complied with § 39-71-601, MCA (1983). The Workers' Compensation Court adopted the hearing examiner's order on April 21, 1993. Grenz appealed. ¶7 In Grenz III, we affirmed the dismissal of Grenz's claim, holding •that Grenz did not inform American Stud that he was suffering from arthritis caused by microtrauma injuries separate and distinct from his elbow injury within the statutory 12 month period. Grenz, III, 260 Mont. at 63, 857 P.2d at 732. We concluded that F&C should not be equitably estopped from relying on the statute of limitations because Grenz did nothing that would have alerted his employer to this new cause of his degenerative arthritis. We also concluded that by paying benefits for treatment of Grenz's arthritis, F&C did not waive its right to deny this claim for benefits. Lastly, we held that F&C had no duty to inform Grenz of the need to file or modify his claim, stating that the duty is upon the claimant to file his or her claim. ¶8 The instant dispute began on February 1, 2000, when Grenz filed a petition with the Workers' Compensation Court. Grenz essentially alleged that pursuant to his claim for benefits from his elbow injury, F&C paid for expenses arising from his degenerative arthritis and psychological problems even though F&C knew or should have known that his degenerative arthritis and psychological problems were not related to his elbow injury. Grenz claimed that by doing so, F&C breached its duty of trust and concealed the fact that it was not accepting liability for these disabilities. Grenz asserted that he detrimentally relied on F&C's conduct, presumably by neglecting to bring a separate timely, claim for benefits due to his degenerative arthritis and psychological problems. Grenz requested the court award him compensation benefits for his degenerative arthritis and psychological problems. ¶9 F&C filed a motion for summary judgment on February 22, 2000, alleging that Grenz's claims had previously been decided in its favor and, therefore, Grenz should be barred by the doctrine of res judicata from litigating his claims. On June 19, 2000, the Workers' Compensation Court agreed and granted summary judgment in favor of F&C. Grenz appeals. STANDARD OF REVIEW ¶10 Our review of a grant or denial of summary judgment by the Workers' Compensation Court is the same as the standard used by the trial court in ruling upon a motion for summary judgment. We determine whether there is an absence of genuine issues of material fact and whether the moving party is entitled to judgment as a matter of law. Our review of the Workers' Compensation Court's conclusions of law is plenary; we simply determine whether its legal conclusions are correct. Heath v. Montana Mun. Ins. Authority, 1998 MT 111, ¶ 9, 288 Mont. 463, ¶ 9, 959 P.2d 480, ¶ 9. DISCUSSION ¶11 Did the Workers' Compensation Court err when it granted summary judgment in favor of F&C? ¶12 Although Grenz's briefing is not entirely clear, we summarize Grenz's current contentions as follows: F&C paid for expenses arising from his degenerative arthritis and psychological problems pursuant to Grenz's elbow injury claim even though F&C knew or should have known that his degenerative arthritis and psychological problems were not related to his elbow injury. By doing so, F&C concealed the fact that it was not accepting liability for these disabilities and breached a duty of trust. Grenz detrimentally relied on F&C's conduct-neglecting to timely file a separate claim for benefits due to his degenerative •arthritis and psychological problems. Thus, F&C should be required to pay workers' compensation benefits and medical expenses for Grenz's degenerative arthritis and psychological problems. ¶13 F&C argues that the Workers' Compensation Court correctly determined that the issues raised by Grenz in his current claim were previously raised and decided in its favor pursuant to our decisions in Grenz I and Grenz III. Thus, F&C maintains that the court correctly held that Grenz was barred by the doctrine of res judicata from further litigating this claim. ¶14 The doctrine of res judicata bars a party from relitigating a matter he or she has already had an opportunity to litigate. See, e.g., Slater v. Central Plumbing & Heating Co., 1999 MT 257, ¶ 25, 297 Mont. 7, ¶ 25, 993 P.2d 654, ¶ 25. Once there has been a full opportunity to present an issue for judicial decision in a given proceeding, the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could'have been raised, else judgments might be attacked piecemeal and without end. Slater, ¶ 25. Res judicata has four elements: (1) the parties or their privies are the same; (2) the subject matter of the claim is the same; (3) the issues are the same and relate to the same subject matter; and (4) the capacities of the persons are the same in reference to the subject matter and the issues. Slater, ¶ 27. ¶15 In concluding that Grenz's claims were barred, the Workers' Compensation Court relied upon two of our previous decisions with regard to claims brought by Grenz against F&C relating to workers' compensation benefits. Accordingly, in order to determine whether the court's grant of summary judgment was correct, we need only address the third element of res judicata: whether we have already decided the issues raised by Grenz's current claim in F&C's favor. ¶16 We conclude that the Workers' Compensation Court correctly barred Grenz from relitigating issues already decided in our previous decisions. We have previously held that Grenz cannot seek compensation benefits for his degenerative arthritis and psychological problems pursuant to his elbow injury claim because those problems were not causally related to his elbow injury. Grenz I, 250 Mont. at 380-81, 820 P.2d at 746-47. We have also held that Grenz cannot seek compensa tion benefits for his degenerative arthritis or psychological problems based on a separate injury claim because the 12 month statute of limitations for notifying his employer of such a claim has elapsed. Grenz III, 260 Mont. at 63, 857 P.2d at 732. We have twice held that by paying benefits for Grenz's degenerative arthritis and psychological problems pursuant to his elbow injury claim, F&C did not waive its right to deny liability for these claims. Grenz I, 250 Mont at 381, 820 P.2d at 747; Grenz III, 260 Mont. at 65, 857 P.2d at 733. Lastly, we have held that F&C did not have a duty to inform Grenz of the need to file a separate claim or to modify his existing claim. Grenz III, 260 Mont. at 65, 857 P.2d at 733. Therefore, whether Grenz is entitled to compensation benefits for his degenerative arthritis or his psychological problems has already been determined in F&C's favor. ¶17 F&C requests that we sanction Grenz pursuant to our authority under Rule 32, M.R.App.P. F&C observes that Grenz has filed his multiple claims pro se and in forma pauperis, and thus F&C claims that monetary sanctions would not prevent Grenz from bringing unmeritorous claims. Therefore, F&C entreats us to bar Grenz from filing any further claims against it in district court or the Workers' Compensation Court unless Grenz is represented by a duly licensed attorney. F&C believes that requiring Grenz to be represented by an attorney would prevent him from litigating meritless claims because a licensed attorney's decision to file a claim on Grenz's behalf would be circumscribed by ethical constraints and the possibility of monetary sanctions. Alternatively, F&C requests that we require Grenz to acquire our approval before filing another claim. ¶18 We may assess such damages as we deem proper when we are satisfied that an appeal “was taken without substantial or reasonable grounds.” Rule 32, M.R.App.P. See also Krause v. Neuman (1997), 284 Mont. 399, 408, 943 P.2d 1328, 1334. We are satisfied that Grenz's current appeal was taken without substantial or reasonable grounds. Regardless of whether F&C knew that Grenz's degenerative arthritis and psychological problems were not caused by his elbow injury, we have already held that F&C did not have a duty to pursue Grenz's claim for him. Grenz III, 260 Mont. at 65, 857 P.2d at 733. Grenz has simply continued to litigate this same issue. We have previously warned Grenz that further frivolous appeals would merit sanctions. Grenz v. Medical Mgm't Northwest, Inc., (1991), 250 Mont. 58, 64, 817 P.2d 1151, 1155. Accordingly, we award the amount of $1000 to F&C as sanctions for Grenz's frivolous appeal. We agree, however, that merely imposing monetary sanctions on Grenz for his frivolous appeal will not serve to deter him from future frivolous litigation nor will it compensate F&C for having to defend such frivolous actions. Therefore, we also enjoin Grenz from filing any further civil appeals in this court until this sanction is paid. Further frivolous appeals will be met with increased sanctions. ¶19 Affirmed. CHIEF JUSTICE GRAY, JUSTICES NELSON and LEAPHART concur.
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On August 19,1993, the defendant was sentenced to forty (40) years in the Montana State Prison. The defendant is ineligible for parole for the first twenty (20) years of this sentence. On August 25, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Brad Belke and Patrick Quinn. 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. Done in open Court this 25th day of August, 2000. DATED this 11th day of September, 2000. It is the unanimous decision of the Sentence Review Division that this case be remanded to district court to conduct appropriate proceedings to grant the defendant the mandatory credit for time served awaiting sentencing in this matter. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
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00-575 01/04/01 Remanded Original Proceeding PostConviction Relief
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On January 23,1998, the defendant was sentenced to ten (10) years in the Montana Women's Prison. 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 Roberta Drew. The state was not represented. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed. Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive. Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. Chairman, Hon. Marge Johnson, Member, Hon. David CybulsM, Alt. Member, Hon. Robert Boyd.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 The Thirteenth Judicial District Court, Yellowstone County, assessed $1,500.00 in attorney fees as a sanction against Philip P. McGimpsey (McGimpsey) for unreasonably and vexatiously multiplying legal proceedings, pursuant to § 37-61-421, MCA. McGimpsey appeals this sanction. We affirm and remand with instructions. FACTUAL BACKGROUND ¶2 First Interstate Bank (Conservator) is the court-appointed Conservator of the Estate of Shirley L. Bayers (Bayers), who is incapacitated due to Alzheimer’s disease. McGimpsey purports to be Ms. Bayers’ private attorney, claiming Bayers hired him after conservatorship proceedings were underway. When McGimpsey began expressing an interest in participating in matters involving Bayers’ estate, Conservator became concerned about the extent of McGimpsey’s involvement in Bayers’ affairs. Conservator’s attorney therefore wrote to him requesting a copy of any legal documents he had that may have been executed by Bayers. McGimpsey responded, saying he could provide only “an abstract” of his attorney-client agreement with Bayers, and declining to make any further disclosures, citing the attorney-client relationship. ¶3 On February 16, 2000, following a hearing on Conservator’s annual accounting at which McGimpsey was present, the District Court informed McGimpsey that Conservator was statutorily entitled to the documents it had requested from him. The District Court then instructed Conservator to put its request in writing. The next day, counsel for Conservator sent McGimpsey a letter, once again, requesting documents he possessed having to do with Bayers’ affairs. This letter asked McGimpsey to provide: [C]opies of any estate plans you have for Shirley L. Bayers, including, but not limited to: any wills; powers of attorney; trusts of which she is a settler; and any contract, transfer, or joint ownership arrangement with provisions for payment or transfer of benefits or interest at her death of another. In the event that you have knowledge of any estate plans that are not in your possession, please provide the name and address of the person in possession of those documents. The letter went on as follows: Furthermore, any person taking actions based upon a Durable Power of Attorney is accountable to the conservator. See Mont. Code Ann. §72-5-501(2). Thus, in the event that you are taking direction from or have an attorney client relationship with any person claiming to be Ms. Bayers’ agent or attorney-in-fact under a Durable Power of Attorney for Shirley L. Bayers, please provide a copy of any engagement or retention letters as well as copies of all bills or account statements for services provided under the Durable Power of Attorney. If you choose not to provide the requested information within ten days, the conservator will be forced to seek the Court’s intervention. In the event the conservator is required to file a motion with the Court, the conservator will seek sanctions in the form of attorneys’ fees and costs. (Emphasis in original.) ¶4 McGimpsey ignored Conservator’s request. Accordingly, on April 24, 2000, Conservator filed a motion to compel McGimpsey to provide the requested information, together with a request for attorney fees necessitated by the motion. On April 27,2000, McGimpsey responded with a letter threatening Conservator’s counsel with Rule 11 sanctions if she did not withdraw the motion to compel. Among other things, McGimpsey stated: [T]o put this in language that I’m hoping you’ll understand, it is my profound and unwavering belief that your Motion and Brief were not written and filed after reasonable inquiry; are not well grounded in fact; and are not warranted by existing law or a good faith argument for the extension, modification or reversal of existing law.... (emphasis in original) Before you fall too deeply in love with your current Motion, I would suggest that you secure a copy of (and very, very carefully read) the transcript from the Hearing of February 16, 2000. To analogize: Do you remember the scene from one of the Star Wars’s movies where young Luke was being told to ‘feel the force; listen to his feelings?’ Well ..., ‘read the transcript.’ What you will magically find is that my well-prepared and surgically scripted remarks will put an end to you and Damon’s [Guardian ad litem] continuous and unnecessary billing for ‘housekeeping matters.’ ... [I]f you’re anxious to run with the tall dog litigators in your firm, or for that matter, you need productive billable hours, may I suggest that the following subject areas directed to the financial management of Shirley’s account are ripe for the application of your considerable talent.... There followed a laundry list of complaints and criticisms of Conservator’s handling of Bayers’ estate. ¶5 On May 8, 2000, McGimpsey filed a motion to strike scandalous, immaterial and irrelevant content in Conservator’s motion and brief. His motion was denied. On June 1, 2000, after the motion to compel was fully briefed, the District Court granted Conservator’s motion to compel and for attorney fees. The District Court indicated in its order that if the amount of attorney fees was contested, a hearing would be held to determine the amount of fees to be awarded. ¶6 On June 7,2000, McGimpsey filed a motion to alter or amend the District Court’s order granting attorney fees. Conservator opposed the motion. The District. Court denied McGimpsey’s motion, and ordered a hearing on the amount of the. sanction to be awarded, “unless the parties can agree to $1,000 in attorney fees being assessed.” Conservator agreed to accept the District Court’s suggestion. McGimpsey did not. A hearing on the amount of fees was therefore scheduled for July 27, 2000. ¶7 On July 18,2000, McGimpsey filed a motion to vacate the hearing and moved to establish a discovery schedule regarding attorney fees. The District Court denied the motion at the beginning of the July 27, 2000 hearing. Conservator’s counsel then testified as to her reasonable attorney fees incurred due to McGimpsey’s conduct. On July 31,2000, the District Court issued its order requiring McGimpsey to pay Bayers’ estate $1,500.00 in attorney fees. McGimpsey filed another motion to alter or amend the order determining attorney fees. The District Court denied the motion on August 30,2000. McGimpsey now appeals to this Court. DISCUSSION ¶8 Did the District Court abuse its discretion by sanctioning McGimpsey $1,500.00 under § 37-61-421, MCA, for unreasonably and vexatiously multiplying the proceedings in District Court? ¶9 The District Court awarded fees to Conservator under § 37-61-421, MCA, which provides: An attorney or party to any court proceeding who, in the determination of the court, multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney fees reasonably incurred because of such conduct. It is within a district court’s discretion to award attorney fees under § 37-61-421, MCA. Rocky Mountain Ent. v. Pierce Flooring (1997), 286 Mont. 282, 301, 951 P.2d 1326, 1338. We review a district court’s determination to grant attorney fees pursuant to § 37-61-421, MCA, for an abuse of discretion. Tigart v. Thompson (1990), 244 Mont. 156, 159-60, 796 P.2d 582, 584. This Court generally defers to the discretion of the district court regarding sanctions because it is in the best position to know whether parties are disregarding the rights of others and which sanction is most appropriate. McKenzie v. Scheeler (1997), 285 Mont. 500, 506, 949 P.2d 1168, 1172. ¶10 McGimpsey argues that the District Court erred in ordering him to pay fees under § 37-61-421, MCA, because in a civil action such as •this one, all discovery and discovery disputes, including sanctions, must be governed by the Montana Rules of Civil Procedure, and not by § 37-61-421, MCA. He also argues that it was error for the District Court to sanction him because it made no findings of fact as to his unreasonable and vexatious conduct. Lastly, he asserts that Conservator totally failed to carry its burden of proof as to the amount of time its attorney spent due to his conduct. ¶11 Conservator counters that the issue before the District Court was not a discovery dispute because there was no litigation and no adversity of parties as envisioned by the rules governing discovery. The only party involved was Ms. Bayers. Conservator also notes that the District Court examined Conservator’s request for fees, heard testimony, and applied the seven factors set forth in Audit Services, Inc. v. Haugen (1979), 181 Mont. 9, 591 P.2d 1105. Finally, Conservator points out that the District Court specifically found McGimpsey’s conduct to be unreasonable and vexatious, as contemplated by § 37-61-421, MCA. We agree. ¶12 Section 37-61-421, MCA, was modeled after 28 USCS § 1927, with only minor changes made to clarify its applicability to pro se litigants as well as attorneys, and to establish that attorney fees may be awarded as damages. Hearing on HB 541 Before the House Judiciary Committee, 49th Legis. (1985) (statement of Judge Robert M. Hotter, 19th Judicial District). It was adopted in 1985 to provide redress against persons who abuse the judicial process for their convenience, tactical reasons, personal gain, or the satisfaction of vengeful motives. Hearing on HB 541 Before the House Judiciary Committee, 49th Legis. (1985) (statement of Judge Michael Keedy, 11th Judicial District). ¶13 Contrary to McGimpsey’s assertions, we have upheld the award of attorney fees for discovery violations under § 37-61-421, MCA. See, e.g., In re Marriage of Rager (1994), 263 Mont. 361, 366, 868 P.2d 625, 628 (failure to appear at hearing and refusal to provide discovery responses warranted sanction under § 37-61-421, MCA); also see, Tigart, 244 Mont. at 159-60, 796 P.2d at 584-85 (withholding of requested discovery information requiring a second trial warranted sanction under § 37-61-421, MCA). The point in court proceedings at which the vexatious conduct occurs is not the issue. Rather, it is the unreasonable multiplication of court proceedings that is germane. ¶14 Rules 34 and 37, M.R.Civ.P., anticipate the existence of a dispute between opposing parties. The underlying matter here is not an adversarial proceeding. See, In re Estate of Bayers, 1999 MT 154, ¶ 14, 295 Mont. 89, ¶ 14, 983 P.2d 339, ¶ 14 (a petition to appoint a guardian is not an adversarial proceeding). Conservatorship proceedings are established to promote the best interests of the protected person. See, § 72-5-401 et seq., MCA. Conservator was authorized to request the documentation from McGimpsey with or without court authorization or confirmation. Section 72-5-427, MCA. Formal discovery proceedings were not required for Conservator to obtain documents deemed relevant to the protected person’s estate. ¶15 McGimpsey intentionally led Conservator to believe he possessed documents relevant to Bayers’ estate. When Conservator first requested a copy of any engagement letter, McGimpsey stated he could provide only an “abstract” of the attorney-client agreement because of the other non-conservatorship personal legal matters which he was currently working on for Ms. Bayers. This led to Conservator’s justifiable request to examine representation agreements between McGimpsey and Bayers, which McGimpsey simply refused to answer. On appeal, McGimpsey contends that his “no response” to Conservator’s request was a response, and should have been construed by Conservator as an indication he did not have any of the documents she requested. We find this argument specious. McGimpsey could have given a straightforward answer. Instead, he chose to force a needless multiplication of proceedings and the pointless involvement of the District Court in this dispute. ¶16 The District Court found that McGimpsey prolonged this matter unreasonably and vexatiously, thus meeting the requirements set forth in § 37-61-421, MCA. The District Court noted it would have been very simple for McGimpsey to 'write a one-sentence response that he did not have the information requested. This would have ended the inquiry, and would have obviated the necessity for the numerous briefs, hearings and legal proceedings which ensued due to McGimpsey’s recalcitrance. The District Court justifiably found that McGimpsey was “playing games” and “pushing Ms. Bennett’s [Conservator’s counsel] buttons” by forcing this matter forward. We conclude that the District Court did not abuse its discretion by assessing attorney fees against McGimpsey pursuant to § 37-61-421, MCA. The District Court is affirmed on this issue. ¶17 Unfortunately, McGimpsey’s inclination to prolong this matter unreasonably and vexatiously did not end in the District Court. McGimpsey forced this matter forward on appeal, unnecessarily requiring the respondents to expend additional attorney fees defending the order of the District Court. As already noted, § 37-61-421, MCA, permits the Court to require an attorney who unreasonably multiplies the proceedings to satisfy personally the expenses and attorney fees reasonably incurred because of such conduct. We conclude that McGimpsey should be responsible under this statute for respondent’s expenses and attorney fees incurred on appeal as well as below. Accordingly, we remand to the District Court for the assessment against McGimpsey of the respondent’s costs and attorney fees incurred herein. CHIEF JUSTICE GRAY, JUSTICES NELSON and LEAPHART concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶ 1 Appellant (Bill) brought an action to quiet title to ranch property in Ravalli County claiming that he had acquired title from his cotenants by adverse possession. After a trial to the bench, the District Court ordered judgment in favor of respondents. Bill appeals, alleging errors in the District Court’s Findings of Fact and Conclusions of Law. We affirm. ¶2 John M. Foley purchased the Foley Ranch, the subject of this quiet title action, in 1909 and 1928. He and his wife, raised nine children on the ranch; two boys, John and Bill, and seven girls, Nellie, Caroline, Elizabeth, Ella, Harriet, Mildred and Marion. Bill asserts that he has acquired title to the whole of the Foley Ranch through adverse possession of fractional interests acquired by two of his siblings in the distribution of his father’s estate. ¶3 Bill’s father died intestate in 1962. His estate was not settled until 1971 but in 1968, Bill’s sisters Harriet, Elizabeth and Ella conveyed any interest they had in the Foley Ranch to their mother. She, in turn, conveyed her interest to Bill, subject to a life estate. When the estate was finally settled, title to the ranch was distributed to Bill and his siblings as follows: Bill, 13/21st, subject to the life estate of his mother; John, 2/21st; Mildred, 2/21st; and Marion, 2/21st. Mildred quitclaimed her interest to Bill in 1993. Marion and John’s 2/21st interests have been devised to their surviving spouses; the defendants in this action. ¶4 Bill has continuously worked the Foley Ranch since 1947, raising hay and cattle. He paid all taxes on the property and built two homes, a garage, hay sheds, barns and irrigation works, as well as fences that surround the property. None of the surviving siblings has ever claimed any interest in the profits of the ranch and Bill has never offered to share those profits with them. At no time has Bill ever sought Marion, John or Mildred’s permission to build any structure on the ranch or use the ranch property other than as he wished. Rather, he has always acted as if the Foley Ranch were his alone to operate as he pleased. This has been in accord with the professed interest of the surviving siblings who have always wanted Bill to operate the ranch as he saw fit, provided that the property not be mortgaged or sold. ¶5 In 1996, Bill and his wife divorced. Pursuant to the decree of dissolution, the court ordered the sale of the Foley Ranch to satisfy the settlement agreement. Title problems frustrated the sale and prompted the quiet title action which is the subject of this appeal. Following a bench trial the District Court concluded as a matter of law that Bill was a tenant in common with Delores Foley, and John Arvidson and that one cotenant could not gain title to another’s interest by adverse possession. The District Court also found as a matter of fact that Bill’s use of his cotenants’ interests had been permissive. Bill now contends that these and related findings of fact and conclusions of law were in error. ¶6 Issue 1: Did the District Court err in its findings of fact? ¶7 Although Bill takes exception to a number of the District Court’s factual findings, his specification of error relates primarily to the District Court’s finding that Bill was a permissive user of his cotenants’ fractional interests. ¶8 This Court reviews the findings of a trial court to determine whether they are clearly erroneous. Rule 52(a), M.R.Civ.R 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 (citing Whalen v. Taylor (1996), 278 Mont. 293, 299, 925 P.2d 462, 465). 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. ¶9 The District Court heard conflicting testimony on the question of whether Bill’s use was permissive. Bill testified that he had always asserted his complete ownership of the ranch and that longstanding arguments with his siblings established his claim as hostile. Delores Foley, wife of Bill’s deceased brother John, testified that Bill’s use was permissive and that John had always wanted Bill to have full use of the property as long as it was not sold or mortgaged. She testified that, until these proceedings, Bill had never asserted that she or her late husband had no interest in the ranch and, furthermore, that Bill had on several occasions asked her to sign over her interest to him. ¶10 Delores’ testimony provides substantial credible evidence that, at least until he attempted to sell the property, Bill’s use of his siblings’ fractional interests was in conformity with their wishes and was permissive. The fact that Bill testified to the contrary does not detract from the sufficiency of Delores’ testimony. The District Court was in the best position to evaluate the credibility of the witnesses and to give each its proper weight. We conclude that the District Court’s finding that Bill was a permissive user of his cotenants’ fractional interest was not clearly erroneous and is affirmed. ¶11 Issue 2: Did the District Court err when it concluded that one cotenant could not gain title to another’s interest through adverse possession? ¶12 Bill claims that the District Court incorrectly concluded that one cotenant could not deprive another of his interest through adverse possession. He cites a number of our cases holding that such adverse possession is possible following ouster of a cotenant. However, we need not address this issue. Even under the standard suggested by Bill, the claim of title by adverse possession is defeated by a finding that use was permissive. Having concluded above that the District Court’s finding in this regard was not erroneous, we decline to review the issue of whether one cotenant can gain title to another’s interest through adverse possession. The judgment of the District Court is affirmed. JUSTICES TRIEWEILER, REGNIER, GRAY and NELSON concur.
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On December 19, 1996, the defendant was sentenced to the following: Count I: Forty (40) years in the Montana State Prison, plus an additional ten (10) years for the use of a weapon in the commission of the crime, to run consecutively to the underlying offense; Count III: Seventeen (17) years in the Montana State Prison, plus an additional eight (8) years for the use of a weapon, to run consecutively with the underlying offense. The sentence in Count III is to run concurrently with the sentence imposed in Count I. 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 Allen Beck. The state was represented by Daniel Schwarz. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the majority decision of the Sentence Review Board that the sentence shall be amended as follows: Count I: Sixty (60) years in the Montana State Prison, with forty (40) years suspended, plus an additional ten (10) years for the use of a weapon during the commission of the crime, to be served consecutively to Count I; the sentence imposed in Count III shall remain the same. The reason for the amendment is that the offense is very serious and does warrant a lengthy period of incarceration, but that a lengthy period of supervision is also required. The sentence was inadequate in not providing for that period of probation. While the defendant's juvenile record is also serious, it includes no violent offenses; it also ' shows that he only received one disposition for all of those offenses, and that was received shortly before this event occurred. The defendant was placed on probation and was not given any rehabilitative programs, according to the Pre-Sentence Investigation Report. This is not a situation where rehabilitation was tried successively and failed, it is one where nothing was tried. Additionally, the defendant's mental health diagnosis was not even discovered until after this event occurred. Judge Baugh's obvious intent at sentencing was to provide for mental health counseling for this defendant. Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
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On August 13, 1999, the defendant was sentenced to five (5) years in the Montana State Prison. On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. Done in open Court this 24th day of August, 2000. DATED this 11th day of September, 2000. 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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JUSTICE REGNIER delivered the Opinion of the Court. ¶1 The City of Great Falls appeals from an order entered by the Eighth Judicial District, Cascade County, denying its motion to alter or amend a judgment granting the petition of Gayle A. Morris for a revocation of the suspension of Morris' driver's license. One issue is dispositive of this appeal: Did the District Court err in denying the State's motion to alter or amend the judgment reinstating Morris' driver's license? We affirm. BACKGROUND ¶2 On April 22, 1999, at approximately 1:50 a.m., Officer Scott Van Every of the Great Falls Police Department observed a vehicle ahead of him proceeding eastbound on Tenth Avenue South. In the course of eight blocks, Officer Van Every observed the vehicle “drift” across the painted line separating the eastbound lanes of traffic, and then “drift” and touch the fog line on the other side of the lane one or two times. Officer Van Every initiated a traffic stop. Upon making contact with the driver of the automobile, Officer Van Every formed the opinion that Morris might be driving under the influence of alcohol and requested that Morris undertake standardized field sobriety tests. At the conclusion of these tests, Van Every read the preliminary alcohol screening test advisory and requested that Morris provide a sample of his breath to. determine his blood alcohol concentration level. Morris refused, was arrested, and again refused to take a breath test. Morris's driving privileges were suspended due to his failure to take the breath tests requested by Van Every. ¶3 Morris filed a petition in District Court to restore his driving privileges pursuant to § 61-8-403, MCA. A hearing was held on September 17, 1999, and the District Court found that there was no particularized suspicion for the traffic stop and restored Morris's driver's license. The State then filed a motion to alter or amend the judgment which the District Court denied on November 16,1999. The State appeals. STANDARD OF REVIEW ¶4 The decision to grant or deny a motion to alter or amend a judgment is within the sound discretion of a district court. Thus, we review whether the District Court abused its discretion when it denied the motion to alter or amend its judgment. Bragg v. McLaughlin, 1999 MT 320, ¶ 11, 297 Mont. 282, ¶ 11, 933 P.2d 662, ¶ 11. DISCUSSION ¶5 Did the District Court err in denying the State's motion to alter or amend the judgment reinstating Morris' driver's license? ¶6 The State contends that the District Court erred when it denied a motion to amend or alter its previous holding that there was insufficient “particularized suspicion” for Officer Van Every to commence a traffic stop of Morris. Morris contends that the District Court did not err in appropriately applying a requirement of particularized suspicion before Van Every could perform a legal traffic stop. We agree. ¶7 The District Court did not abuse its discretion in denying the State's motion to alter or amend judgment pursuant to Rule 59(g), M.R.Civ.P. The State did not allege newly discovered evidence, but merely alleged that the District Court misunderstood or misapprehended the evidence presented in the hearing to reinstate Morris' driver's license. ¶8 In a hearing to reinstate a driver's license, a court must first look to whether a peace officer had a “particularized suspicion” for making an initial traffic stop. See, e.g., State v. Gilder, 1999 MT 207, ¶ 8, 295 Mont. 483, ¶ 8, 985 P.2d 148, ¶ 8. If the requirements of “particularized suspicion” do not exist from the evidence presented to the District Court, then no valid stop occurred. See § 46-5-401, MCA. ¶9 A particularized suspicion to justify an investigative stop must be proven with objective data from which an experienced officer can make certain inferences, and a resulting suspicion that a person is or has been engaged in wrongdoing. Gilder, ¶8. In State v. Lafferty, 1998 MT 247, ¶ 10, 291 Mont. 157, ¶ 10, 967 P.2d 363, ¶ 10, we concluded that whether a particularized suspicion exists to justify an investigative stop is a question of fact which depends on the totality of the circumstances. We further held that merely touching or crossing the fog line while driving is not a traffic infraction and was insufficient in itself, and without other relevant circumstances, to create a particularized suspicion of wrongdoing that would justify a traffic stop. Lafferty, ¶¶ 16-18. ¶10 Such is the case at hand. The record shows that there was no report that Morris was speeding, driving erratically, nor caused an accident or a near accident. Morris was not cited for any driving offenses, other than DUI, at the time of the traffic stop. Officer Van Every testified that Morris merely “drifted” a foot or so across the line of the other eastbound lane and “drifted” to touch the fog line on the other side of the lane. Morris testified that the road was rutted, and that his usual practice was to attempt to avoid potholes on the road. To summarize the evidence, the State failed to show that Morris was driving in a manner that justified a traffic stop. ¶11 We do note that the District Court mischaracterized our holding in Lafferty to require that a traffic violation is necessary to create “particularized suspicion” prior to a traffic stop. Such error, however, did not materially affect the outcome of the case since the District Court correctly determined that there were insufficient grounds for Officer Van Every to form a particularized suspicion of wrongdoing to justify this traffic stop. ¶12 Affirmed. CHIEF JUSTICE GRAY, JUSTICES LE APHART, NELSON and TRIEWEILER concur.
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On May 30, 2000, the defendant was sentenced to the following: Count II: Fifty (50) years in the Montana State Prison; Count IV: Fifty (50) years in the Montana State Prison; CountV: Fifty (50) years in the Montana State Prison; and Count VI: Fifty (50) years in the Montana State Prison, all to run concurrent to each other. On November 3,2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Matthew Wald. The state was not represented. Done in open Court this 3rd day of November, 2000. DATED this 27th day of November, 2000. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the unanimous decision of the Sentence Review Division that the sentence shall be modified to impose a restriction on parole, or any other form of supervised release, for a period of twenty (20) years from the date of the original sentencing. This modification is necessary for the adequate protection of the class of the public that includes the sexual preference of this defendant, who are unable to adequately protect themselves otherwise. The modification is also in accordance with the recommendation of the author of the Pre-Sentence Investigation Report. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson and Member, Hon. David Cybulski.
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On April 4, 2000, the defendant was sentenced to a ten (10) year commitment to the Department of Corrections, with five (5) years suspended. 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 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 did not wish to proceed at this time. It is the unanimous decision of the Sentence Review Division that the application for review of sentence shall be continued to the November meeting of the Board, thus allowing the defendant time to obtain new counsel for this proceeding. Acting Chairwoman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. John Whelan.
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On April 21, 2000, the defendant was sentenced to a five (5) year commitment to the Department of Corrections. 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 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 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. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the unanimous decision of the Sentence Review Division that the sentence shall be amended to sixty (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. The reason for the amendment is that the sentence is clearly inadequate in that it does not provide for any period of community supervision once Mr. Godfrey is released. While the Board feels that the length of sentence as a period of incarceration is appropriate, and making it consecutive to the other sentences is appropriate, the Board believes that there needs to be an additional period of thirty (30) years during which time the defendant will be supervised. Acting Chairwoman, Hon. Marge Johnson, Member, Hon. David Cybulski and Alt. Member, Hon. John Whelan.
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On February 14,2000, the defendant was sentenced to five (5) years in the Montana State Prison. On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Nik Geranios. The state was not represented. The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon, IT IS ORDERED, ADJUDGED AND DECREED that the sentence shall be affirmed, with the amendment that the defendant receive credit for successful probation time from August 9, 1998, through February 22, 1999, after which he was found to be in violation of his probation. Hon. Ted L. Mizner, District Court Judge.
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00-616 02/22/01 Affirmed Dist. 11 (Flathead)
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 Merlin LaDue (LaDue) appeals from an order entered by Montana’s Second Judicial District Court, Silver Bow County, denying his request to call additional witnesses at trial for impeachment purposes. LaDue, charged with attempted deliberate homicide, was found guilty of aggravated assault and now appeals. We affirm the District Court’s ruling. ¶2 The issues on appeal are: ¶3 1. Whether the District Court abused its discretion when it denied LaDue’s motion to call additional witnesses after trial had begun. ¶4 2. Whether LaDue’s constitutional right to present a defense was violated when the District Court denied his motion to call additional witnesses. BACKGROUND ¶5 LaDue, Owen Ah-Mu and Dale Abad had been drinking beer for a number of hours at LaDue’s home in Butte, Montana. They had purchased seven cases of beer for consumption that day, sharing some of it with acquaintances. After Ah-Mu agreed to pay LaDue’s girlfriend, Carolyn Jacquez, $2 for gas, she drove them to the apartment of Alipati Taufagu and Rose Lakel. Taufagu and Ah-Mu had been raised together, and considered themselves brothers. Ah-Mu immediately proceeded to enter the apartment building without tendering the agreed-upon $2. Alipati observed that LaDue and Abad were engaged in an altercation, and called it to Ah-Mu’s attention. LaDue was attempting to collect the $2. Ah-Mu returned to the scene and intervened in defense of Abad, who he claimed was his “best friend.” ¶6 The specific details contained in the testimony of the witnesses differ slightly at this point. No witness claims that Ah-Mu either possessed or brandished a weapon of any kind. LaDue was observed by several witnesses to have brandished his knife early in the confrontation, but put it back in his pocket, only to retrieve it a short time later and strike Ah-Mu in the chest and shoulder area, resulting in life-threatening puncture wounds to Ah-Mu. LaDue did not dispute these facts, but claimed he did so in self-defense. Ah-Mu is approximately 6 feet 2 inches tall and weighed around 250 pounds, while LaDue is approximately 5 feet 10 inches and weighed around 160 pounds. ¶7 LaDue hurried from the scene with J acquez in her car, throwing the knife out the window, and told Jacquez that he thought he had killed Ah-Mu. They traveled to LaDue’s residence, where LaDue proceeded to wash his clothing and shower. When police arrived, Jacquez told them LaDue had already left, but he was apprehended trying to escape through a basement window. ¶8 LaDue was charged by information with the offense of attempted deliberate homicide, a felony in violation of §§ 45-5-102 (l)(a) and 45-4-103 (1), MCA, and pled not guilty. Pursuant to a plea agreement, the charges were reduced by an amended information to aggravated assault, to which LaDue pled guilty contingent upon his acceptance to boot camp at the Montana State Prison (MSP). MSP officials denied his application to boot camp, and LaDue withdrew his guilty plea to the lesser charge, and was recharged by amended information with attempted deliberate homicide, and again pled not guilty. ¶9 There was unquestionably some measure of physical contact between the two men. Different persons testified that Ah-Mu made a statement to the effect, “what about your knife, bitch?” to LaDue. Debbie Dobb, a nurse and assistant manager of the apartment complex, who observed much of the sequence of events from her apartment before and after calling the police, could not hear the verbal confrontation between LaDue and Ah-Mu. She testified at trial that at one point one man had the other against a fence, and when she returned from calling police their respective positions had switched. She also testified that while LaDue was hitting or swinging at Ah-Mu, she did not see Ah-Mu hit or swing at LaDue. LaDue attempted to elicit contradictions in Dobb’s oral testimony versus her statement to police shortly after the incident. At trial, Dobb stated that Ah-Mu had his hands “around LaDue’s shoulders,” while in her statement to police two days following the stabbing she stated that Ah-Mu was talking to LaDue with a finger in his face. ¶10 Regina Tracy testified following Dobb’s testimony. Tracy stated she did not see Ah-Mu raise his hands or strike at LaDue. On cross-examination, LaDue attempted to point out an inconsistency in Tracy’s statement at trial versus her statement to police immediately following the altercation, where she had stated that Ah-Mu was pointing in LaDue’s face. She deferred to her earlier statement to police, saying at trial that she simply Gouldn’t remember that particular fact. ¶11 Witness Michael Moore, a resident of the complex, observed that Ah-Mu was backing LaDue down the sidewalk. He did not see Ah-Mu strike or push LaDue, though one hand was in front of him, but that in his opinion Ah-Mu’s actions were aggressive. He then saw LaDue “hitting like a girl,” striking Ah-Mu twice, but he didn’t see anything in LaDue’s hand. ¶12 Following Dobb’s testimony, but prior to Tracy’s testimony, a paralegal for LaDue’s defense counsel overheard Dobb and Tracy discussing the case in the women’s restroom during a break in the trial. Immediately after the break LaDue moved to add his paralegal to the witness list, along with Carolyn Skinner, the mother of Carolyn Jacquez, who was the girlfriend of LaDue and the mother of his child. LaDue asserted that Dobb and Tracy were essentially coordinating their testimony to his disadvantage, and that their testimony at trial differed substantially from their earlier statements to police. While LaDue made no attempt to recall Dobb as a witness to inquire about the alleged verbal exchange with Tracy, LaDue did pose questions regarding the restroom conversation to Tracy in front of the jury. The court addressed LaDue’s request outside the presence of the jury. The State objected to the testimony of the paralegal, arguing that as an agent of LaDue’s counsel, neither his counsel nor his counsel’s agent could testify as a fact witness. The State further objected to Skinner testifying, as she had been present in the courtroom during the entire trial, in contrast to all other witnesses, who had been excluded from the courtroom at LaDue’s request. Finally, the State argued that any error that may have resulted from the exclusion of the two proposed witnesses was harmless. The court denied LaDue’s request to add the additional witnesses, stating that Tracy’s and Dobb’s testimony was not substantially different from the statements given police investigators shortly following the stabbing. ¶13 LaDue was found not guilty of attempted deliberate homicide, but guilty of the lesser included offense of aggravated assault. He was sentenced to 20 years at MSP, with an additional 5 years for use of a dangerous weapon. LaDue appeals. ISSUE 1 ¶14 Whether the District Court abused its discretion when it denied LaDue’s motion to call additional witnesses after trial had begun. ¶15 In State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263, we stated: The standard of review for evidentiary rulings is whether the district court abused its discretion. The court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned. In Gollehon we concluded that the probative value of 20 graphic photos of five murder victims outweighed the danger of unfair prejudice, and did not arouse jurors’ passions any more than other evidence of Gollehon’s conduct, and that the decision of the trial court to allow the photos into evidence, was not an abuse of the court’s discretion. ¶16 In the case sub judice, we are in essence asked by LaDue to find that the evidence he wished to offer through the two additional witnesses was probative in some way. The record supports the District Court’s finding that the testimony of the two additional witnesses proposed by him was not probative. The differences in their statements to police and the testimony offered by both witnesses at trial did not result in two substantially different versions of events, one that implicated LaDue, and one that exonerated him. As a result, LaDue’s contention that Dobb’s trial testimony was more prejudicial to him than was her written statement to police is not meritorious. ¶17 Because their independent statements to police shortly after the stabbing are not notably inconsistent with their oral testimony at trial, LaDue necessarily infers that they must have therefore “fixed” their testimony immediately after the incident. ¶18 Nothing in the record supports such an inference; no witness states that they saw Tracy and Dobb engaged in private or public discussion about fixing their testimony to LaDue’s disadvantage, and the investigating officers make no such reference, nor does LaDue offer any information to support such a conclusion. In fact, the record shows the investigating officer testified that he interviewed Dobb and Tracy separately at their respective places of employment, with no other persons in attendance, and that these conversations were recorded. With regard to both Tracy and Dobb, their statements to police shortly after the stabbing, compared to the testimony offered at trial, are quite similar. Not only was their testimony internally consistent, their testimony was consistent with the testimony of other witnesses who are not the subject of controversy here. ¶19 Furthermore, LaDue offers not even the most rudimentary discussion regarding a motive for Dobb and Tracy to “fix” their testimony to his disadvantage. Nor can this Court discern any nefarious intent from the record. LaDue’s statement that “impeachment evidence which shows the state’s (sic) witness has a motive is compelling” is hardly compelling given his failure to suggest such a motive let alone support one. ¶20 LaDue concludes his discussion of this issue with a fatally flawed assumption, and equally flawed conclusion. He asserts that the testimony of witnesses who “stick to their story” is by definition always false. This is no more accurate than saying that the testimony of witnesses who stick to their story is by definition always true. While LaDue failed to recall Dobb to the stand to inquire about such a motive or otherwise cross examine Dobb about this and other relevant matters, LaDue did question Tracy in front of the judge and jury after the conversation in the restroom. Neither the judge nor the jury were persuaded by LaDue’s efforts to impeach Tracy, despite the opportunity to view firsthand the witness and her credibility. The testimony offered by Dobb and Tracy was not inconsistent with the statements given by them shortly after the stabbing to police, and was not inconsistent with the testimony of other eyewitnesses. LaDue has not shown good cause to add the two witnesses after commencement of the trial. The District Court did not abuse its discretion when it refused to allow the two additional witnesses to testify. ¶21 The court in its ruling stated: [T]he information was furnished to Counsel prior to these witnesses testifying and he interrogated the witnesses concerning whether or not they discussed their testimony with another witness out in the hall, which they admitted they had, and that their testimony hadn’t varied from the written statements that they had given earlier.... (Emphasis added). ¶22 While the record shows it is factually incorrect that LaDue knew of the restroom incident prior to Dobb’s testimony, again he made no effort to recall Dobb to the stand to try to impeach her, and he made no effort to correct the court. It is correct, however, that one witness’ testimony, Tracy’s, occurred immediately after the restroom conversation and that LaDue was able to question Tracy about the incident in front of the jury. She willingly admitted the conversation took place, but adamantly denied that she and Dobb had conspired regarding their testimony. ¶23 We will not put a district court in error for an action to which the appealing party acquiesced or actively participated. State v. Harris, 1999 MT 115, ¶ 32, 294 Mont. 397, ¶ 32, 983 P.2d 881, ¶ 32. Acquiescence in error takes away the right of objecting to it. Section 1-3-207, MCA. Here, given the court’s exclusion of the two additional witnesses sought by LaDue, he could have sought to recall Dobb in an attempt to impeach her, but made no effort to do so. Moreover, he failed to correct the statement of the court wherein the court appeared to assert that both Tracy and Dobb had been subject to impeachment regarding the restroom conversation, when only Tracy had been subject to questioning about the matter. Here, too, we will not place the District Court in error for LaDue’s failure to recall a witness and subsequent acquiescence to the court’s ruling. ¶24 In conclusion, the court properly inquired of the nature of the testimony to be offered by the two proposed witnesses and the circumstances surrounding the matter in controversy. The court therefore had sufficient information to make its ruling denying LaDue’s request for them to appear before the court. The District Court’s ruling was not erroneous, and the court did not abuse its discretion when it denied LaDue’s request to call two additional witnesses at trial. Issue 2 ¶25 Whether LaDue’s constitutional right to present a defense was violated when the District Court denied his motion to call additional witnesses. ¶26 Section 46-20-104, MCA, states 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). (Emphasis added.) ¶27 Section 46-20-701, MCA, states in pertinent part: (1) Whenever the record on appeal contains any order, ruling or proceeding of the trial corut against the convicted person affecting the convicted person’s substantial rights on the appeal of the cause, together with any required objection of the convicted person, the supreme court on that appeal shall consider the orders, rulings, or proceedings and the objections thereto and shall reverse or affirm the cause on the appeal according to the substantial rights of the respective parties, as shown upon the record. 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. (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. (Emphasis added.) ¶28 These statutes make clear that an objection concerning jurisdictional or constitutional matters must be raised before the trial court, unless specific exceptions apply under § 46-20-701(2), MCA, and if the objection is not made it will not be heard on appeal. The exceptions are not applicable in the instant case. The record unequivocally shows that LaDue did not properly object to the court’s ruling excluding the two proposed witnesses. LaDue’s response to the court’s ruling through counsel was simply, “Thank you, Your Honor,” and counsel proceeded to immediately call LaDue to the stand. The court had adjourned for the lunch hour to consider LaDue’s request to add the two witnesses. Not only did the court have this period of time to consider LaDue’s request, LaDue had this same period of time to frame his arguments and concerns and anticipate the implications of the court’s ruling either way, and to formulate any possible objections in an unpressured environment. ¶29 In addition to requiring a timely objection, we have held that the objection must specify what authority, rule, statute or constitutional provision might be violated by the court’s decision in order to preserve the issue for appeal; the objector has an obligation to make the basis for the objection clear to the court so that the district court has an opportunity to correct itself. State v. Huerta (1997), 285 Mont. 245, 261, 947 P.2d 483, 493. ¶30 LaDue did not raise at trial the constitutional issue that he raises on appeal, and has therefore failed to preserve the matter for our review. As he did not raise the issue at trial, he has waived his right to appeal this issue. ¶31 Affirmed. CHIEF JUSTICE GRAY, JUSTICES TRIEWEILER and LEAPHART concur.
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On November 4,1998, the defendant was sentenced to ten (10) years in the Montana Women's Prison, plus an additional ten (10) years for the use of a deadly weapon during the commission of the crime, with fifteen (15) years suspended. 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 Kevin Gillen. The state was not represented. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed. Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that "the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive." The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive. Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. Chairman, Hon. Marge Johnson, Member, Hon. David Cybulski, Alt. Member, Hon. Robert Boyd.
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MB. CHIEF JUSTICE BBANTLY delivered the opinion of the court. In this proceeding John H. Duffy, Esq., attorney at law and a member of the bar of Montana, is charged by one John Perkins with unprofessional conduct, and it is sought to have him removed from his office. The substance of the charge is that Duffy was heretofore employed by Perkins as counsel to defend him upon a charge of murder; that by means of duress and fraud Duffy induced Perkins to execute and deliver to him a promissory note for $1,000 and a mortgage to secure payment thereof, this amount being the charge made by Duffy for his defense of Perkins; and that Duffy immediately transferred the note to one Amelia Curn, with the intent and purpose to render unavailable the defense Perkins would otherwise have against the collection of the note by Duffy. • In his report, now on file with the clerk, the referee states that in his opinion the evidence does not sustain the charge. A full transcript of the evidence accompanies the report. We have examined it and find that the conclusion of the referee is correct. The report is therefore adopted and the proceeding is accordingly dismissed. Messrs. C. A. Spauling, J. G. Brown, W. E. Keeley, T. P. Stewart, and W. A. Pennington, for Accused. Mr. J. A. Poore, Assistant Attorney General, for Accuser, as amicus curiae. Mr. Justice Smith and Mr. Justice Holloway concur.
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MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. On February 1, 1912, the relator, a resident of the city of Butte, presented to the district court of Silver Bow county an accusation in writing, under oath, against Thomas J. Booher, police judge of said city, asking that he be summarily removed from office. After alleging that the city is a municipal corporation, and that said Booher is its police judge, the accusation charges: “ (B) That on or about the fifteenth day of May, 1911, there was filed before the said Thomas J. Booher, as police judge of the city of Butte, the complaint of the city of Butte, plaintiff, against Slemons & Booth, a corporation, defendant, a true copy of which is hereto annexed, marked ‘Exhibit A,' and made a part hereof; that the said defendant, Slemons & Booth, after having entered its plea of-‘not guilty’ to said complaint, was, after a trial on said complaint, on or about the sixteenth day of May, 1911, by the said Booher, as police judge aforesaid, adjudged guilty and fined, and adjudged to pay the sum of twenty-five ($25) dollars; that the said Slemons & Booth, a corporation, on or about the twenty-third day of May, 1911, appealed from said judgment to said district court, and filed with said Booher, as police judge, a bond in writing on appeal from said judgment to said district court, which said bond was approved in writing by the said Booher as police judge; that for said services rendered in approving said bond the said Booher, as police judge, did, on or about the eleventh day of July, 1911, charge and collect a fee from the said Slemons & Booth, a corporation, to wit, the sum of two ($2)''dollars; that said fee so charged and collected for said services rendered as herein set out was and is illegal.” At the hearing on February 12, Hon. Michael Donlan presiding, the accused having entered his plea of not guilty the accuser offered evidence in support of the charge. Upon objection by counsel for the accused that the accusation is insufficient to charge an offense under the statute (Rev. Codes, sec. 9006), the court refused to hear evidence and! ordered the proceeding dismissed. Thereupon application was made to this court for a writ of supervisory control, requiring the district court to set aside the order and to proceed with the hearing. At the time set for hearing in this court, counsel for defendant appeared by filing a motion to quash the order to show cause theretofore issued and to dismiss the proceeding, on the ground that the petition does not state facts to entitle the relator to any relief. The charge proceeds upon the assumption that, in demanding and collecting a fee of $2 for the approval of an appeal bond in a case arising out of a violation of a city ordinance, the accused was guilty of a violation of the statute, supra, and has thereby become subject to removal from office. It was pointed out in State ex rel. Rowe v. District Court, 44 Mont. 318, 119 Pac. 1193, that the compensation to which a police judge is entitled is fixed by the provisions of section 3241 of the Revised Codes. What is there said with reference to his right to demand and collect fees in cases and proceedings arising under the criminal laws of the state applies as well to this right as regards eases arising under the city ordinances. While the policy pursued by the legislature in conferring upon a police judge the jurisdiction of a justice of the peace, and allowing him to demand and collect fees for services rendered in that behalf, has varied from time to time, its policy with reference to services performed in cases arising out of the violation of city ordinances has been uniform. This officer has invariably been required to perform all services in this behalf for a -salary fixed by ordinance, not to exceed a prescribed limit. The policy was inaugurated by the Act of the territorial legislature, approved February 17, 1881 (Laws 1881, Twelfth Session, sec. 31, p. 22), the first general law enacted authorizing the organization of municipal corporations. While under this Act a police justice, the title by which the officer was then designated, was given jurisdiction of civil cases, he was required to perform all services in them without compensation, other than his salary, paid by the municipality. He was required to collect fees, but had to account for them to the treasurer of the municipality. He had exclusive jurisdiction of cases arising under the ordinances, and also of criminal cases within the territorial limits of the corporation; but for services in the latter he was allowed no compensation. The next utterance on the subject is found in sections 371 and 372 of an Act approved March 10, 1887 (Comp. Stats. 1887, Div. 5). The officer is designated therein as police magistrate. By section 371, he was given the jurisdiction generally of a justice of the peace in civil and criminal cases, and his jurisdiction over ordinance or city cases was made exclusive as theretofore. By section 372, he was compensated in full for services rendered the city in this class of cases by a salary fixed by ordinance and paid by the city. He was also declared entitled to receive the fees “which are or may hereafter be allowed justices of the peace in all civil cases and in criminal actions and proceedings arising under the laws of the territory, when acting as justice of the peace.” Here we first find him authorized to demand and collect for his own use such fees as were allowed to a justice. Section 371 remained substantially unchanged by subsequent legislation until the Act of March 13, 1895, the portions which are pertinent here being found in sections 4911 and 4912 of the Political Code of 1895 (Rev. Codes, secs. 3297, 3298). By these sections, the jurisdiction of the police judge was defined substantially as in the provisions of the Compiled Statutes, supra,? except that by section 4912 he was given exclusive jurisdiction of civil cases- to which the city was a party plaintiff or defendant. Section 372 of the Compiled Statutes, supra, which had been continued in force until passage of this Act, was supplanted by a section of the Act found in the Political Code of 1895 as section 4765. This section fixed the compensation as it was fixed by the provisions of the Compiled Statutes, except that it prescribed that a police judge should have no compensation for his services in criminal eases and proceedings arising under the laws of the state, or when acting as a committing magistrate. This section appears in the Revised Codes of 1907 as section 3241, supra. By an Act approved February 24, 1903 (Session I/aws of 1903, Chap. 16), section 4911, supra, was amended, so as to deprive the police judge of jurisdiction in civil cases, except those enumerated in section 4912, supra. Section 4911, as amended by the Act of 1903, and section 4912 appear in the Revised Codes as sections 3297 and 3298, respectively. There never has been any provision made by the legislature authorizing a police magistrate or police judge to demand and collect any fees in a case arising under a city ordinance, either from the city or from the defendant. At the hearing, counsel, in his endeavor to justify the action of the district judge, made the contention that cases arising out of violations of city ordinances are civil cases; that they are included in the provision found in section 3241, supra, viz., “In addition, a police judge is entitled to receive in all civil cases the fees which are now, or may hereafter be, allowed justices of the peace, ’ ’ and that, since this is so, and since a justice of the peace is entitled to collect a fee for approving an appeal bond and furnishing the transcript, etc., in a civil case, Booher was entitled to charge the fee in question here. The least attention given to the legislation summarized above, however, must compel the conclusion that whatever may be the proper classification of such cases, under the head of civil, or criminal, or quasi criminal, the legislature has always put them in a class by themselves, to be disposed of by the police judge without fee or charge, either from the city or from a defendant. This being so, the further conclusion must follow that they are and were not intended to be covered by the expression “civil cases,” as used in the language quoted from the statute. The result is that Booher was not justified in demanding and collecting the fee in question here, and that the district court erred in refusing to hear evidence in support of tbe charge. It was tbe duty of tbe court to bear tbe evidence, and, if it appeared that tbe fee was collected as charged, to make tbe order provided by section 9006, supra, removing Boober from office. Tbe motion to quash tbe order to show cause is therefore overruled, and it is directed that tbe district court set aside its order dismissing tbe charge, and proceed to a bearing and judgment in accordance with tbe views herein expressed. Mb. Justice Smith and Mb. Justice Holloway concur.
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MR. JUSTICE SMITH delivered the opinion of the court. On the twenty-eighth day of November, 1910, the defendant corporation was engaged in the construction of the new wings, or additions, to tbe state capitol building at Helena, and plaintiff was in its employ as a laborer .or “boom” man; bis duties being to shift and guide the boom of a large derrick used in hoisting building materials from the ground to different places on the building. He charges that, in disregard of its duty to use ordinary care to furnish him a reasonably safe place in which to work, it carelessly left an open shaft in the building unguarded, and, while passing through the building for the purpose of seeking a place to urinate, as he had been tacitly invited to do by the defendant by its failure to erect a toilet-house at or near the place where he was working, he fell into the unguarded shaft, and was injured. The defendant denied any negligence on its part, and interposed as affirmative defenses (a) that plaintiff fell into the shaft through his own carelessness ; and (b) that he knew of the condition of the building and situation of the shaft and assumed the risks incident thereto. At the close of plaintiff’s case, the defendant moved for a non-suit on the grounds, among others, that his evidence showed, as a matter of law, that he was guilty of contributory negligence and assumed the risk. The motion was granted, and judgment entered for the defendant. Plaintiff appeals. Plaintiff testified: “I am thirty-two years old. I was working for Gagnon & Co. a couple of months before I got hurt, working on the derrick all the time. It was the custom of the men when they urinate to go any place they can find, so that nobody can see them. I seen the men and the boys and the superintendent do that. They see us a good many times, and everybody knows that and don’t stop us. The main toilet on the ground floor of the capitol building was away over to the back door, and you have got to go into the building. I didn’t go into the main toilet on the morning I was hurt, because I was awful busy, and I cannot hold my water no more. I was working close to the door where I went in; so I walked in, rushed in, and I walked right in the door. The door was closed; then I walked right in and walked right straight that way and' turned on my right; then I walked a couple of steps; and then I stepped right into tbe bole and fell down. There was nothing guarding three sides of the shaft.' I had been in this building prior to November 28, but had never been in this particular part. I never knew anything about the hole. When I went in, two carpenters were working in there, and the door was wide open. I stepped about two steps from the door, and the third one I walked right into it. I have been working about buildings most of the time for the last twelve years, and I knew how buildings were constructed. I had been working on the north side of the west wing for some time, anyway. I never urinated in the new building only that time when I fell down. I was working about seventy feet from the rear door of the old building. Whenever I wanted to answer a call of nature, other than urinating, I had frequently been back to the toilet in the capitol building; the men used the toilet for that purpose. I knew, before my injury, that I had a right to go there, if I wanted to. My duties required me to be on the outside most of the time. When I was working on the other side, we used to go behind a rockpile to urinate. I said I urinated once before in the building on the left-hand side, not on the inside. I never went in there before in that building. As to whether I ever urinated on the inside of the wings before I was hurt, well, I was once in there before, in the west wing. I was working there for a couple of months, and only urinated on the inside of the building once before the time when I was hurt. That time I went into the west wing through the door. I urinated on the east side. I went straight out, away on the other side, close to the window; then I would turn right back and walk right out again. I went in the same door. I didn’t go in the same way, because it just happened that way. I went there to urinate on the morning, just because it was the nearest place to go, for one thing; and another thing, I was awfully busy, too busy to leave the place where we were hoisting a big stone. Question by Counsel: What have you to say as to whether the buildings you ever worked on had shafts open like this, and as to whether they were guarded or not? Mr. Sanders: Objected to as incompetent, irrelevant, and immaterial, and not witbin any of the issues raised by the pleadings. Court: Objection sustained. (Exception by plaintiff.)” Plaintiff continuing: “The door of the main capitol building under the stairway must be 150 feet from where I was working on the outside, and the door I went into was maybe twenty to thirty feet. It was between ten and eleven o’clock in the morning when I got hurt. There wasn’t any window at the place I fell down. There was a window just across from that door; there was another window on the other side, over twenty feet away. There is room there about twenty feet square; but it was dark in there. On the side where the hole was it was absolutely dark; you couldn’t see anything; it was just as dark as midnight. I went in there on another occasion to urinate and turned to the left. I went straight back across that time, because I was close to the light, close to the window on the south side. On this occasion, instead of going straight that way, I just happened that way to turn to my right, and I fell into the hole. The window was not in the same condition the first time as the second time; it was very light in there the first time. I just went straight ahead. I never noticed and never looked on that side; that is the reason I never saw the hole. I know the light was all around that 20x20. If I had gone straight ahead, the day I went in there, toward the light, I would have been all right. I didn’t do that, because this was the soonest way to go. I was going just behind the door to get through with my business, and go right out and attend to my work again, and I went in there in the dark, instead of going where it was light. When I first went in there, the window hadn’t been boarded up, and nothing left but a pane of glass in the center. I tried to get in behind the door to urinate. I mean, I got in front of the door. I went in fast; I was in a hurry and rushed right in there. I was walking fast. I opened the door and walked right in fast, and kept on walking fast, and down I went.” Oscar Hanson testified: “The shaft had been open since June. There were several 4x4 stuck up on it, about eighteen inches or two feet apart. A man would have to go between them on November 28 to get into the shaft. I don’t think he would have to squeeze between them in order to fall in. These uprights would be removed in course of construction; they were put there to support the concrete floor above in the course of construction of the building. Partition tilings were to be installed in their place. This was a shaft for an elevator.” 1. It is contended that the court erred in striking out the testimony of the plaintiff, heretofore quoted, to the effect that he saw men and boys and the superintendent urinate in the building, and “everybody knows that and don’t stop us.” No reversible error can be predicated upon the ruling. The witness was allowed to testify that he saw the superintendent and his coemployees urinate in the building. This testimony was practically the same as that stricken out. The expressed theory of the trial court was that, so long as the evidence failed to disclose any objection thereto on the part of those in charge of the work of construction, it would be presumed that plaintiff and his eoemployees were permitted to urinate “wherever they pleased.” This theory was in favor of the plaintiff, and we' shall assume that it was correct; that is to say, we shall assume that he was acting within the scope of his employment when he was injured. 2. It is contended that the court erred in sustaining an objection to the question propounded to the plaintiff “whether the buildings he ever worked on had shafts open like this, and whether they were guarded or not.” It was the duty of the appellant to make the record show prejudicial error. We have no means of knowing what the answer to the interrogatory would have been. If he had answered that all buildings he ever worked on had open, unguarded elevator shafts, like the one in question, the answer would have availed him nothing; in fact, it would have been to his prejudice. An offer of proof should have been made. In the absence of such offer, no prejudice is disclosed. (State v. Byrd, 41 Mont. 585, 111 Pac. 407; Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297.), 3. We think the plaintiff was properly nonsuited, for the reason, as disclosed by his own testimony, that he was guilty of contributory negligence. We shall assume; without analyzing the testimony on that point, that the act of the defendant in leaving the elevator shaft unguarded was negligence. The rule is that, if the issue of negligence or contributory negligence is a fairly disputed question of fact, it must be resolved by the jury; but if the evidence is perfectly clear, it is for the court. (Wall v. Helena St. Ry. Co., 12 Mont. 44-61, 29 Pac. 721.) We think this evidence is so clear and convincing that reasonable men of fair and unbiased minds cannot differ as to its effect. The plaintiff was employed on the outside of the building; a toilet had been reserved for his use about 150 feet distant; he had used it on different occasions during the two months of his employment; once he had entered the west wing through the north door, the same door that he used on the day of his injury, for the purpose of urinating. On that occasion, he passed directly across the corridor, a distance of about twenty feet, tó a lighted place on the south side of the wing. On the morning of the day in question, he left his work on the outside, opened the door, “walked right straight that way,*’ and then, instead of continuing across the corridor to the lighted portion of the building, a distance of, perhaps, eighteen feet, excluding the steps he had already taken, he turned abruptly to the right, without “noticing and never looking on that side, toward a spot which was as dark as midnight,” and fell into the elevator shaft. No negligence is predicated upon the action of the defendant in maintaining the shaft at the point in question. It was properly located 'there. But the plaintiff maintains that it was unguarded. Even so, his own negligent conduct was a proximate cause of his injury. He hurriedly left his work, rushed into the building, advancing toward a spot which was sufficiently lighted to enable carpenters to work there, and which he had used before, abruptly turned at right angles toward a portion of the building with which he was altogether unfamiliar, and into which he could not see on account of the intense darkness, and fell into the shaft, all “because it just happened that way.” He was thirty-two years old and had had twelve years’ experience about the construction of buildings. His testimony shows that he is bright and alert mentally, and, with his experience, he must have known that he was liable to injury in rushing into dark portions of a building in course of construction of the magnitude of the west wing of the eapitol. He knew that the light “was all around that 20x20,” and if he had gone straight ahead he “would have been all right.” He did not do that, “because this was the soonest way to. go.” He was “just going behind the door, and so went in there in the dark, instead of going where it was light.” He “went in fast”; he was in a hurry, and “rushed right in there, and kept on walking fast,” and “down he went.” In other words, he voluntarily chose a method of procedure which might, and did, result to his injury in preference to a perfectly safe one, which he had previously employed under substantially the same circumstances. His course was clearly and manifestly negligent, and he is himself responsible for the injuries resulting therefrom. The situation disclosed no emergency which would tend to distract his attention or confuse his mind, or in any way justify his rash conduct. In the case of Massey v. Seller, 45 Or. 267, 77 Pac. 397, it appeared that the plaintiff fell into an unguarded elevator shaft. Mr. Justice Wolverton said for the court, in commenting upon the conduct of the plaintiff: “Now, if it was so dark in there that he could ‘see nothing,’ it was certainly an act of folly on his part to enter on a cruise of exploration and discovery, without stopping to determine whether it was safe to proceed. To bolt headlong into a place little known, and where the senses cannot take note of it, is not the act of a prudent man, and there is no chance for any other inference or deduction concerning it. Reasonable minds could not come to any other conclusion touching it, so that there is nothing for the jury to determine, and the trial court very properly declared the result, as a matter of law.” (See Johnson v. Maiette, 34 Mont. 477, 87 Pac. 447; Mc Cann v. Atlantic Mills, 20 R. I. 566, 40 Atl. 500; Piper v. Cambria Iron Co., 78 Md. 249, 27 Atl. 939; Geis v. Tennessee, C. I. & R. Co., 143 Ala. 299, 39 South. 301; Bridger v. Gresham, 111 Ga. 814, 35 S. E. 677; Hilsenbeck v. Guhring, 131 N. Y. 674, 30 N. E. 580; Gillespie v. John W. Ferguson Co., 78 N. J. L. 470, 74 Atl. 460; see, also, Meehan v. Great Northern Ry. Co., 43 Mont. 72, 114 Pac. 781, and Molt v. Northern Pac. Ry. Co., 44 Mont. 471, 120 Pac. 809.) The judgment is affirmed. Affirmed. MR. Cheep Justice Brantly and Mr. Justice Holloway concur.
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ME. CHIEF JUSTICE BEANTLT delivered the opinion of the court. Application for writ of habeas corpus. On January 27 of this year Harry Hosoda, a single man, and Bertha Mahoney, a single woman, were, by complaint filed in the justice’s court of George W. Carleton, justice of the peace for Cottonwood township, in Powell county, charged with the crime of living together in open and notorious cohabitation in a state of fornication. Upon a trial by a jury they were found guilty. Immediately upon the return of the verdict, the defendants being present in person and by counsel, the justice pronounced sentence imposing a fine and a term of imprisonment upon both of them. No objection was interposed by either defendant or by counsel. The complainant at once gave notice of appeal to the district court, and thereupon he and his codefendant were remanded to the custody of the sheriff, by whom they are now detained in the county jail. The complainant seeks his release upon the ground that in pronouncing sentence immediately upon return of the verdict, instead of postponing it to a time not less than six hours or more than two days thereafter, as directed by the. statute (Rev. Codes, see. 9614), and without a formal waiver by complainant, the justice exceeded his jurisdiction, with the result that the judgment is void. There is incorporated in the sheriff’s return a copy of the record of the proceedings had in the justice’s court. The correctness of the transcript is not questioned; therefore all of the proceedings are properly before us for consideration. The statute provides: “After a plea or verdict of guilty, or after a verdict against the defendant, on a plea of a former conviction or acquittal, the court must appoint a time for rendering judgment, which must not be more than two days nor less than six hours after the verdict is rendered, unless the defendant waive the postponement. If postponed, the court may hold the defendant to bail to appear for judgment. A judgment must be entered in the minutes of the court as soon as rendered.” (Rev. Codes, sec. 9614.) That a justice’s court under the Constitution is one of limited jurisdiction, having only such powers as are conferred by law, has frequently been decided by this court. (Const., Art. VIII, sec. 20; Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695; State ex rel. Matthews v. Taylor, 33 Mont. 212, 83 Pac. 484; State ex rel. Collier v. Houston, 36 Mont. 178, 12 Ann. Cas. 1027, 92 Pac. 476.) But it does not follow from tbis fact that if the justice has jurisdiction of the subject matter and has regularly obtained jurisdiction of the parties, the judgment reached by him, either in a civil or criminal case, is rendered void by every error which has intervened during the course of the proceedings. The offense with which the complainant is charged is a misdemeanor. (Rev. Codes, sec. 8343.) It falls within the jurisdiction of a justice. (Sec. 6288.) There is no question but that the complainant had been arrested and was properly before the justice for trial. The forms of law were all complied with, up to the time of pronouncing judgment. At that time the complainant was present with his counsel. He, or at least his counsel, knew what formalities the law required in that behalf, as well as his right to insist upon their observance, or, at his option, to waive them. He interposed no objection. Under these circumstances, we think he should be held to have waived his right to a postponement for judgment. In People v. Johnson, 88 Cal. 171, 25 Pac. 1116, the defendant had been convicted of a felony. On appeal the point was made that the judgment was erroneous because it had been pronounced before the expiration of the two days’ delay after verdict, as provided by the statute. The statute, of which the section of our Code on the same subject is a copy (Rev. Codes, sec. 9357), contained no provision for a waiver. In overruling the objection the court said: “A sufficient answer to this point is that one found guilty of a felony may waive the time which the Code says must elapse between the verdict and sentence, and may consent that judgment be pronounced immediately. (People v. Bohinson, 46 Cal. 94.) Here it does not appear that •the defendant ever made any objection in the court below on account of this alleged shortness of time, and he must therefore be held to have assented to it.” In support of this conclusion the court cited the earlier case of People v. Mess, 65 Cal. 174, 3 Pac. 670. To the same effect is the case of In re Smith, 2 Nev. 338. The' statute under which this judgment was entered recognizes the right of defendant to waive the postponement. That the judgment of a court having jurisdiction both of the crime and the defendant is void because a formality, the observance of which the defendant may waive, has been overlooked, seems anomalous. It might well be argued that a postponement to a time beyond that allowed by the statute, without the consent of the defendant, would have resulted in a loss of jurisdiction. (State ex rel. Collier v. Houston, supra.) We are not willing, however, to say that the failure to pursue the statute in this case produced sueh a result. The failure to observe it was mere error within jurisdiction. We do not decide whether the notice of appeal, without the giving of an undertaking by the defendant, had the effect of removing the case to the district court. It is doubtful whether under the statute an undertaking is required in sueh cases. If the giving of the notice ipso facto effectuated the appeal, the complainant is not now held in execution of the judgment, but under the original warrant of arrest awaiting trial de novo in the district court. (Rev. Codes, sec. 3621.) The result of the appeal was to abrogate the justice’s judgment, and defendant cannot complain of any irregularity committed by the justice in rendering it. (State v. O’Brien, 35 Mont. 482, 10 Ann. Cas. 1006, 90 Pac. 514; In re Graye, 36 Mont. 394, 93 Pac. 266.) The complainant is remanded to the custody of the sheriff of Powell county. Me. Justice Smith and Me. Justice Holloway concur.
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PER CURIAM. It being made to appear by the affidavit of Carrie May Carroll, this day presented to the court, that Jeremiah J. Lynch, the judge of the Second Judicial District who tried the cause of Mary Jenkins v. Celia Davis et al., now pending on motion for a new trial in the court of said district, the said Carrie May Carroll being a party thereto, has refused to settle certain bills of exceptions on behalf of said Carrie May Carroll to be used on the motion for a new trial, and that such refusal is based upon his alleged disqualification in the premises by reason of a disqualifying affidavit filed therein since the trial of said cause, it is ordered that the said Lynch, judge as aforesaid, proceed to settle and certify said bills as a part of the record in said cause, notwithstanding his said alleged disqualification. Messrs. Charles O’Donnell, and W. E. Carroll, for Petitioner.
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MR. JUSTICE HOLLOWAY delivered the opinion of the court. The information in this case charges that the defendant, without having been granted a certificate to practice medicine in this state, “did # * * prescribe and direct for the use of one Emma Van Orsdel, a person then and there afflicted with a certain physical ailment of the body, to wit, sickness resulting from pregnancy, a certain appliance or apparatus, to-wit, a certain surgical instrument commonly known as and called forceps. # # * >> The defendant was convicted, and has appealed from the judgment and from an order denying him a new trial. The offense against which the statute (Rev. Codes, secs. 1591, 8544) is directed is practicing medicine or surgery without a certificate from the State Board of Medical Examiners. The statute is in very broad and general terms, but the pleader undertook to state the circumstances of the offense with unnecessary particularity, and in doing so confined the charge to a single act, viz., the giving of a particular prescription, and the evidence offered upon the trial fails entirely to sustain the charge thus made. The judgment and order are reversed and the cause is remanded. Reversed and remanded. Mr. Chief Justice Brantly and Mr. Justice Smith concur.
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MB. CHIEF JUSTICE BBANTLY delivered the opinion o'f the court. On April 2, 1908, the defendant executed and delivered to Agnes Johnson his promissory note, of which the following is a copy: “$500.00 Butte, Mont., April 2d, 1908. “On demand after date for value received, I promise to pay to the order of Mrs. Agnes Johnson Five Hundred and no/100 Dollars in lawful money of the United States, negotiable and payable at Butte, Montana, with interest before and after maturity at the rate of (12) per cent, per annum from date until paid. The makers and endorsers hereby waive presentment, demand, protest, and notice thereof, and agree to pay reasonable attorney’s fees in case of suit on this note. “(Signed) G. H. Wilson.” Subsequently payments were made by him for which credits were indorsed as follows: “August 26, 1908, paid on principal $100.00; April 10, 1909, on principal $350.00.” On or about September 15, 1909, Mrs. Johnson, being indebted to plaintiff to the amount of $80.55 on account of grocery supplies furnished to her by it, transferred the note to it as security for the sum so due. She indorsed it: “Pay Brophy Company the balance due on this note.” This action originated in a justice’s court and was brought to recover $108.58, alleged still to be due on the note as principal and interest. The complaint is in the usual form. The answer contains a general denial and an allegation of payment to Mrs. Johnson prior to the date of the transfer. At the trial, after proof that the note had been indorsed to plaintiff by Mrs. Johnson for the purpose stated, counsel for plaintiff introduced it in evidence and rested. Thereupon C. W. Gamer, bookkeeper and “credit-man” for plaintiff at the time the transfer was made, being called on behalf of defendant, testified: “At the time I received this note from Mrs. Johnson I just took the note, and saw the indorsements on the back, and of course saw that there was fifty dollars due on' it; and I thought if Mr. Wilson paid her any more money he would have a receipt, if the money he paid was not indorsed on the note; there would be some indorsement on the receipt, stating the fact that it was this particular note. She said at the time that we could collect it better than she could. I do not know whether or not she said that there might be some trouble about the collection of this. * * * I do not know what she actually said with reference to the note at the time I received it, but I remember there was a question of them having some trouble about the note. She left me with that impression. I don’t know what she said. Q. Do you remember testifying in the justice’s court that she said she had some trouble with Wilson and there might be trouble about the collection of this note, and she said she thought you might collect it better than she could? A. Yes, she left me with that impression. Q. Is it not a fact that you testified that Mrs. Johnson said to you at the time that she had had some trouble about this note with Mr. Wilson, and she thought you could collect it better than she could? A. Well, I don’t know. She brought the note down there, and I saw the indorsements on it, and I just took it for fifty dollars’ worth of commercial paper, as security for the amount she owed us, and she was ’saving that day for Salt Lake and she is down in Salt Lake now; and she didn’t have time to collect it herself, or try to collect it, and so she just gave it to us as security for her account. * * * Yes, she left with me the impression that there was trouble about the balance, and more money than that. She said their affairs were jumbled up in pretty bad shape. She told me that.” It further appeared that plaintiff’s place of business is in Butte; that defendant and Mrs. Johnson had been doing business, the former as a merchant and the latter as a boarding-house keeper, a few blocks distant from plaintiff’s place of business, and that Mrs. Johnson had been obtaining supplies from the plaintiff for years. Evidence was then offered to show that at various times from June 10, 1908, to April 12, 1909, inclusive, payments other than those indorsed on the note had been made to Mrs. Johnson by defendant, aggregating in all $165.00, and that on June 22, 1909, Mrs. Johnson had executed and delivered to the defendant her negotiable promissory note for $50.00, due in ten days. The evidence was excluded. The defendant having rested, the court directed the jury to return a verdict for plaintiff for the full amount demanded. Defendant has appealed from an order denying his motion for a new trial. The court and counsel for plaintiff proceeded upon the theory that the plaintiff was, as a matter of law, a holder in due course of the note in suit, and hence that evidence of payment by the defendant to Mrs. Johnson, prior to the transfer of which it had no notice by indorsement on the note, was immaterial and incompetent. The contention of counsel for defendant is that, in view of the character of the note and the length of time which had elapsed since its execution, the condition in which it was at the time it came into the hands of plaintiff, and the information communicated to Gamer touching the controversy over the amount, if any, then remaining unpaid, it was a question for the jury whether the plaintiff became a holder of it in due course, and hence that the court should have admitted the offered evidence. As between the maker and payee, a note payable on demand is due as soon as it is executed. As between the maker and the indorsee, the latter is deemed to be the holder in due course if it has come into his hands for value in the ordinary course of business, within a reasonable time after its date. What is a reasonable time has never been fixed by definite rule, but has been held to be determinable by reference to the circumstances of each case. (Tomlinson Carriage Co. v. Kinsella, 31 Conn. 268; Pindar v. Barlow, 31 Vt. 529; Paine v. Central Vt.Ry. Co., 14 Fed. 269; Herrick v. Wolverton, 41 N. Y. 581, 1 Am. Rep. 461; Merrit v. Jackson, 181 Mass. 69, 62 N. E. 987; Wood’s Byles on Bills and Notes, p. 331.) Some of the courts, as an examination of the cases cited will disclose, hold that what is a reasonable time is a question of law for the court. But it is not necessary to examine the decided cases to ascertain the rules by which the rights of the parties here are to be determined. By the enactment of the Negotiable Instruments Law (Laws 1903, Chap. 121; Rev. Codes, secs. 5842-6037), the legislature intended to cover the wholé subject of negotiable instruments and thus to set at rest questions touching the rights of the parties which had theretofore been, left to be determined by a critical examination of the prior decisions of the courts. (American Bank v. McComb, 105 Va. 473, 54 S. E. 14.) In so far as its provisions are clear and unambiguous, they must control. Considerable space is devoted in the brief of counsel for plaintiff to the question whether the note was negotiated within a reasonable time. So much as has been said on this subject is rather by way of digression. The pertinent inquiry presented upon this record is whether the plaintiff became a holder in due course because the note was indorsed to it within a reasonable time, and whether under the facts admitted and proven it became the indorsee without notice. The provision of the statute pertinent here is the following: “A holder in due course is a holder who has taken the instrument under the following conditions: 1. That it is complete and regular upon its face; 2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; 3. That he took it in good faith and for value; 4. That at the time it was negotiated to him he ■had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” (Rev. Codes, sec. 5900.) The language of this section is free from ambiguity. Under it the holder is one in due course when it appears that all four conditions named are satisfied. Did the facts in evidence justify the court in holding that the plaintiff took the note before it was due and without notice that it had been previously dishonored? We think not. They made out a clear case of notice of dishonor. Though by express recital upon the face of the instrument the necessity for demand was waived, yet the payments indorsed upon it disclosed that the principal sum named had been nearly fully paid. This fact, it seems to us, must of itself be deemed sufficient, as a matter of law, to give notice to anyone dealing with it that the payee had already demanded payment, or in any event that the payee and’ the maker had regarded the obligation due long prior to that time. For part payment of the principal stipulated for in a demand note is evidence of its dishonor. (McLean v. Bryer, 24 R. I. 599, 54 Atl. 373.) If other facts were needed in order to affect plaintiff with notice, the information conveyed to it, through its agent, that there was a dispute as to whether any balance remained unpaid, was amply sufficient. The defendant was entitled to prove payment to Mrs. Johnson, if he could do so. The ease should have been submitted to the jury upon the question of payment only. The order is reversed, with directions to grant the defendant a new trial. Reversed. Mr. Justice Smith and Mr. Justice Holloway concur.
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PER CURIAM. The relators’ application for a writ of supervisory control or other appropriate writ is denied.
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MR. JUSTICE SHEA delivered the opinion of the Court. Plaintiff appeals an order of the Cascade County District Court granting summary judgment in favor of defendant Walter Neibauer. The plaintiff’s action against the other defendant, John Carlson, is still pending. Because the order appealed from is not a final one, and the plaintiff failed to comply with the requirements of certification specified in Rule 54(b), M.R.Civ.P., this appeal is dismissed without prejudice. Because of the recurring problems this Court has faced with relation to piecemeal appeals, we are impelled to set forth the requirements which must be met for an appeal where the order appealed from is not otherwise final. On January 5, 1979, the plaintiff commenced an action against his landlord, Walter Neibauer, and John Carlson, the tenant in the adjoining dwelling of the landlord’s duplex. The complaint alleged that the defendants negligently permitted Carlson’s dog to bite the plaintiff’s ward, Heather Roy, when she was playing in the yard in front of the duplex, and sought damages for her injuries. Both defendants filed answers to the complaint, but before the action proceeded to trial, the court granted defendant Neibauer’s motion for a summary judgment. The court’s order stated that the judgment did not concern the liability of the dog owner, John Carlson. The court simply determined that the landlord had no duty to remove his tenant’s dog from the front yard of the duplex, and thus that he was not liable to the plaintiff. The plaintiff appeals this order. The plaintiff’s appeal is premature. A judgment which leaves undetermined the liability of one or more of the defendants cannot be appealed unless it is expressly made final upon a determination that there is no just reason for delay. See Rule 1, M.R.App.Civ.P.; Rule 54(b), M.R.Civ.P. See also Krusemark v. Hansen (1979), 186 Mont. 174, 597 P.2d 48; Knoepke v. Southwestern Ry. Co. (1979), 182 Mont. 74, 595 P.2d 376. The court’s order entered judgment in favor of only one of the defendants, leaving the liability of defendant Carlson still to be decided. Plaintiff appealed from the order granting summary judgment to defendant Walter Neibauer and made no attempt at all to comply with the certification requirements of Rule 54(b). Because of this failure to comply we must dismiss the appeal. Although this Court has dismissed appeals in the past for failure to comply with the requirements of Rule 54(b), it seems that the message has not been received. See, for example, Krusemark v. Hansen, supra; Knoepke v. Southwestern Ry. Co., supra; In Re Marriage of Adams (1979), 185 Mont. 63, 598 P.2d 197. We have also dismissed appeals involving trial court orders which were interlocutory in nature and lacking a final judgment. See, for example, Winter v. Rhodes (1979), 180 Mont. 217, 589 P.2d 1021; Blevins v. Kramer (1978), 179 Mont. 193, 587 P.2d 28. We tried to get this message across in rather strong terms in the case of In Re Adoption of BGB (1979), 183 Mont. 347, 599 P.2d 375, but still apparently to no avail. In BGB, we stated: “Too often this Court is confronted with cases that are not ready for appellate review within the meaning of the rules, but where the opposing parties do not bring this crucial fact to our attention. We often do not discover this until we are deeply into the process of review and indeed often in the opinion-writing stage. We cannot and will not tolerate this state of affairs. “If the case is not ready for review, it should not be appealed. If for some reason it is appealed prematurely, it is the duty of the parties to bring this to our attention by an appropriate motion to dismiss so that it can be remanded to the District Court. This Court does not have the time and the resources to be compelled to independently search the record to determine if all essential issues have first been decided at the District Court level.” 599 P.2d at 381. Here neither party called our attention to the fact that the summary judgment was interlocutory in nature and that a Rule 54(b) certification had not been obtained. Both parties proceeded as though this case was one perfectly proper to appeal with no further adieu after the trial court entered summary judgment in favor of defendant Neibauer. We will set forth the applicable legal principles and procedural steps involved in relation to Rule 54(b). An adjudication lacks finality in a multiple claims or multiple parties action if the trial court adjudicates one or more but less than all of the claims. Krusemark v. Hansen, supra, 597 P.2d at 49, 36 St.Rep. at 160. The right of an immediate appeal from a partial judgment is governed by Rule 54(b), M.R.Civ.P.; In Re Marriage of Adams, supra; Krusemark v. Hansen, supra. Rule 54(b), M.R.Civ.P., modeled after Rule 54(b), F.R.Civ.P., allows the trial court to certify a judgment as final. Rule 54(b), F.R.Civ.P. is designed to facilitate the entry of judgment on one or more claims, or as to one or more parties, in a multi-claim/multi-party action. Allis Chalmers Corp. v. Philadelphia Electric Co. (3rd Cir. 1975), 521 F.2d 360, 363. Rule 54(b) attempts to strike a balance between the undesirability of piecemeal appeals and the need to make review available at a time when it best serves the needs of the parties. Aetna Insurance Company v. Newton (3rd Cir. 1968), 398 F.2d 729, 734. It is in the discretion of the District Court to grant or deny a request for a Rule 54(b) certification, Singer Housing Co. v. Seven Lakes Venture (D.Colo. 1979), 466 F.Supp. 369, 378; United Bank of Pueblo v. Hartford Acc. & Indem. Co. (10th Cir. 1976), 529 F.2d 490, 492. This does not mean, however, that the decision allowing an appeal to proceed should be lightly entered. The proper procedure and approach which a trial court should take in relation to a certification under Rule 54(b), is discussed in Panichella v. Pennsylvania Railroad Company (3rd Cir. 1958, 252 F.2d 452, 455: “Thus, the procedure contemplated by Rule 54(b) is usually more than a formality. . . [A]n application for a 54(b) order requires the trial judge to exercise considered discretion, weighing the overall policy against piecemeal appeals against whatever exigencies the case at hand may present. Indeed, the draftsmen of this Rule have made explicit their thought that it would serve only to authorize ‘the exercise of a discretionary power to afford a remedy in the infrequent harsh case . . .’ 28 U.S.C.A., Federal Rules of Civil Procedure, 118-119 note. It follows that 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. The power which this Rule confers upon the trial judge should be used only ‘in the infrequent harsh case’ as an instrument for the improved administration of justice and the more satisfactory disposition of litigation in the light of the public policy indicated by statute and rule. See 6 Moore, Federal Practice, 1953, 264-265.” Because an appellate court cannot consider the merits of a non-final order, the threshold question zeros in on the propriety of the Rule 54(b) certification. Allis-Chalmers Corp. v. Philadelphia Elec tric Co., supra, 521 F.2d at 362; Gumer v. Shearson, Hammill & Co., Inc. (2nd Cir. 1974), 516 F.2d 283, 285. In federal court practice it has been the rule that an appellate court may dismiss an appeal from a judgment certified pursuant to Rule 54(b), if it finds that the trial court abused its discretion in certifying the order. Sears Roebuck & Co. v. Mackey (1956), 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297. Indeed, it has been held that if a trial court abuses its discretion in certifying an order of summary judgment as final, an appellate court is without jurisdiction to entertain the appeal. Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 362-363. See B. B. Adams Gen. Con., Inc. v. Department of HUD (5th Cir. 1974), 501 F.2d 176, 177. The burden is on the party seeking final certification to convince the trial court that the case is the “infrequent harsh case” meriting a favorable exercise of discretion. Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 365; See Wright & Miller, Federal Practice and Procedure, Civil, § 2659 (1973), at 75, et seq., and the fact that neither party objected to the issuance of a Rule 54(b) certificate is not sufficient reason to sustain a trial court’s action. The trial court has an independent duty to avoid piecemeal appeals and protect parties’ rights against prejudice resulting from premature appeal. Arlinghaus v. Ritenour (2nd Cir. 1976), 543 F.2d 461, 464. Rule 54(b) requires that before a certification can be made the trial court must find that there be “no just reason for delay.” A proper exercise of discretion under this rule requires the trial court to do more than merely recite the magic words that there is “no just reason for delay.” The trial court must clearly articulate the reasons and factors underlying its decision to order a Rule 54(b) certification. See In Re Adoption of BGB, supra, 599 P.2d at 381, 36 St.Rep. at 1746. As an appellate court we must have some basis for distinguishing between well grounded orders which have considered all of the relevant factors and mere boilerplate approval unsupported by the facts or an analysis of the law. Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 364. Also see Gumer v. Shearson, Hammill & Co., Inc., supra, 516 F.2d at 286; and Schwartz v. Compagnie General Transatlantique (2nd Cir. 1968), 405 F.2d 270, 275. An appellate court will normally consider the following factors when considering a Rule 54(b) certification: “1. The relationship between the adjudicated and unadjudicated claims; “2. the possibility that the need for review might or might not be mooted by future developments in the district court; “3. the possibility that the reviewing court might be obliged to consider the same issue a second time; “4. the presence or absence of a claim or counterclaim which could result in a setoff against the judgment sought to be made final; “5. miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, triviality of competing claims, expense, and the like.” Singer Housing Co. v. Seven Lakes Venture, supra, 466 F.Supp. at 378-379. Depending, of course, on the particular case, all or some of the above factors may bear upon the propriety of the order granting a Rule 54(b) certification. Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 364. The guiding principles for a Rule 54(b) certification may be summarized as follows: “. . . (1) the burden is on the party seeking final certification to convince the district court that the case is the ‘infrequent harsh case’ meriting a favorable exercise of discretion; (2) the district court must balance the competing factors present in the case to determine if it is in the interest of sound judicial administration and public policy to certify the judgment as final; (3) the district court must marshall and articulate the factors upon which it relied in granting certification so that prompt and effective review can be facilitated.” Allis-Chalmers Corp. v. Philadelphia Electric Co., supra, 521 F.2d at 365. We expect that in the future, attorneys in this state will faithfully adhere to the rules which apply to appealable orders under Rule 1, and to the rules which apply to obtaining certification under Rule 54(b). This appeal is dismissed without prejudice. MR. CHIEF JUSTICE HASWELL, and JUSTICES DALY, HARRISON and SHEEHY, concur.
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MR. JUSTICE SHEA delivered the opinion of the Court. Defendant Murman Properties appeals from a judgment of the Gallatin County District Court in favor of plaintiff Lar-Con Corporation which enforced a contract of sale of a business which provided in part for a percentage of gross sales of the business for a certain number of years. In seeking to avoid payments, Murman Properties, Jill Murdoch and Don Murdoch (the buyers) contend that the Lar-Con Corporation (the seller), violated an agreement not to compete with the buyers in the grocery business. Although such term was not part of the sales agreement, the buyers allege that it was part of the sales agreement and that they would not have entered into this contract in the absence of such a provision. The trial court found, however, that the parties had discussed noncompetition before entering into the written agreement, and that plaintiff had refused to make any such commitment. Assuming moreover, that the parties had orally agreed to enter into a non-competition agreement and that parol evidence was admissible to prove this point, the resulting agreement would nonetheless be unenforceable because it violated a statute which prohibits non-competition agreements to extend beyond a county boundary. For this reason, we affirm the judgment without reaching the subsidiary issues raised by the buyers. The buyers’ claim in support of the alleged oral agreement that the seller induced the buyers to enter into the contract based on an oral representation that it would not compete and on the further representation that there was no need to integrate the noncompetition agreement into the sales contract. The buyers claim in this regard, but did not allege the required elements of fraud as required by Rule 9(b), M.R.Civ.P. Rather, it appears that the main thrust of its defense was the claim that the sales contract should be reformed so as to reflect the actual agreement not to compete. The sales agreement arose when the seller decided to sell one of its two retail businesses at Big Sky, Montana. The seller owned “Ernie’s Deli” in the Mountain Mall, which is located in Madison County. The seller also owned the Country Store in the Meadow Village area, which is located in Gallatin County. These two businesses are, however, only 7.3 miles apart, although located in separate counties. In 1976 the seller entered into an agreement with the buyers to sell the Country Store operation, located in Gallatin County. The Country Store sold gifts, apparel items, and general grocery products. The sale included fixtures, furniture, goodwill and inventory. The seller, however, continued to own and operate Ernie’s Deli, located in Madison County. Ernie’s Deli sold and served food for on and off premises consumption. By the terms of the sales contract, the buyers made a cash payment at the time of the sale and were required to make additional payments to the seller in the sum of 1.75% of the gross sales for the years 1977, 1978, 1979, 1980 and 1981. The dispute arose when the buyers failed to make the 1978 contract payment and the seller then filed a lawsuit seeking to enforce the provisions of the sales agreement. The buyers then raised the alleged noncompetition provision as an affirmative defense, contending that the seller had violated this provision, although it was not contained within the four corners of the sales agreement. The underlying evidence relied on by the buyers to support a claim that an agreement not to compete had been violated, relates to the decision of the seller to continue operation of Ernie’s Deli (located in Madison County) at two locations in the Mountain Mall — one for the delicatessen business, and the other for the grocery business. The effect of this split was to permit the seller to enlarge the seating capacity of the delicatessen and to provide more room for display of the grocery products at the other location. The buyers assert that the expansion of the grocery business violated the alleged oral agreement not to compete. The trial court found in favor of the seller and ordered that the buyers account for and pay the seller 1.75% of the year’s profits from December 1, 1977 through November 30, 1978 and also that the buyers pay to the seller the same percentage for the years 1979 through 1981 pursuant to the provisions of the sales agreement. In meeting the buyers’ contentions, the trial court specifically found that the written contract entered into between the parties excluding any reference to a noncompetition agreement, was not induced by the seller’s fraud. Indeed, the trial court found that the parties had discussed a noncompetition agreement before entering into the written contract but that the seller would not agree to such a provision. As previously stated, the alleged noncompetition agreement could not be enforced in any event, because to do so would violate section 28-2-703, MCA, which provides that a noncompetition agreement can be enforced only as an exception to the general policy provisions contained in section 28-2-703, which provides that contracts made in restraint of competition are void. The exceptions contained in section 28-3-704, MCA, permit an agreement not to compete to exist only where it is confined to a particular city or county, or a part of a city or county. Here, although the businesses are only 7.3 miles apart, they are in different counties, and thus the alleged noncompetition agreement could not be enforced in any event. See Treasure Chem. v. Team Lab. Chemical Corp. (1980), 187 Mont. 200, 609 P.2d 285. Assuming the desirability of exceptions to the rule that agreements not to compete are void, it cannot be doubted that a statute which provides that such agreement cannot be enforced in more than one county, totally ignores modern day reality. But that is a legislative problem. Judgment is affirmed. MR. CHIEF JUSTICE HASWELL and JUSTICES DALY, HARRISON and SHEEHY concur.
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MR. JUSTICE SHEA, delivered the opinion of the Court. Knight & Company (herein referred to as Knight) appeals from an order of the Blaine County District Court granting the motion of the First National Bank of Circle (herein referred to as Bank) for summary judgment. Several issues are raised, but we determine that the procedural issue of whether Knight has improperly appealed an interlocutory order is dispositive of this appeal. Although a full discussion of the facts is not necessary, a limited discussion is required. Knight, an architectural firm, prepared architectural drawings for the construction of 20 homes in Fort Belknap, Montana. On February 20, 1974, Knight filed suit against various parties for the recovery of architect fees for services completed by October 22, 1971. Similar cases in two other counties were eventually consolidated. On May 3, 1974, the trial court entered an order dismissing defendants Fort Belknap Indian Agency Housing Authority and Fort Belknap Indian Tribe from the lawsuit for lack of jurisdiction. On November 6, 1978, the trial court entered default judgment against defendant Smith Enterprises, Inc., which Knight asserts is a bankrupt corporation. On January 17, 1979, defendant Bank filed a motion for summary judgment; and on February 6; 1979, Knight filed a motion to set aside the summary judgment, which was granted on April 13, 1979. The matter was reset for hearing, and on May 29, 1979, the trial court again granted the Bank’s motion for summary judgment. This appeal followed. This case involves multiple parties, more specifically multiple party defendants. The record shows that the entry of summary judgment adjudicated the rights and liabilities of Knight and the Bank; however, the rights and liabilities of all of the party defend ants have not been adjudicated. The current status of each party defendant is as follows: “(1) Fort Belknap Indian Agency Housing Authority dismissed for lack of jurisdiction. “(2) Fort Belknap Indian Tribe dismissed for lack of jurisdiction. “(3) Default judgment entered against Smith Enterprises, Inc. “(4) Summary judgment entered in favor of First National Bank of Circle, Montana. “(5) No determination as to Fort Belknap Builders, Inc. — action pending.” Fort Belknap Builders, Inc. is a party defendant in this case; and to date, the following actions have been taken concerning Fort Belknap Builders, Inc.: “(1) Motion to dismiss filed on April 17, 1974. “(2) Motion to dismiss denied on April 30, 1974. “(3) Answer to complaint filed on May 24, 1974. “(4) Attorney Thomas E. Towe’s motion to withdraw as counsel filed on July 13, 1978. “(5) Notice of hearing on motion to withdraw as counsel filed on July 13, 1978. “(6) Order granting motion to withdraw as counsel filed on July 25, 1978. “(7) Certificate of service filed on August 4, 1978 — Service of a copy of the Court order to defendant. “(8) District Court order directing plaintiff to give defendant notice to retain new counsel or appear in person filed on August 24, 1978.” The record clearly shows that the rights and liabilities of Fort Belknap Builders, Inc. have not been adjudicated. Under Rule 54, M.R.Civ.P., the order granting summary judgment here is not a final judgment because not all of the parties have been adjudicated. Additionally, the trial court did not certify the summary judgment as final, under Rule 54(b), M.R.Civ.P. This case is not ripe for appellate review since the order of summary judgment is interlocutory; therefore, this appeal must be dismissed without prejudice under Rule 1, M.R.App.Civ.P. As we noted in Roy v. Neibauer (1980), 188 Mont. 81, 610 P.2d 1185, we have previously dismissed appeals for failure to comply with Rule 54(b), M.R.Civ.P. See for example, Krusemark v. Hansen (1979), 186 Mont. 174, 597 P.2d 48; Knoepke v. Southwestern Ry. Co. (1979), 182 Mont. 74, 595 P.2d 376; In Re Marriage of Adams (1979), 185 Mont. 63, 598 P.2d 197. Roy thoroughly discussed appeals involving interlocutory orders and Rule 54(b). Roy clearly and specifically set forth the applicable principles, rules, and procedural steps involved in relation to a Rule 54(b) certification of final judgment. Our extensive discussion in Roy is equally applicable here; however, we perceive an additional problem in this case which must be addressed. In the brief submitted to this Court on appeal, Knight stated that “Fort Belknap Builders, Inc. is a bankrupt corporation against which no further proceedings have been taken.” Knight also stated “. . . the only real parties left in the suit are the Plaintiff and the First Bank of Circle, Montana ...” A careful review of the record reveals that it cannot be determined whether a voluntary or involuntary petition of bankruptcy has been filed in Federal Court concerning Fort Belknap Builders, Inc.; and herein lies the problem. Recognizing that all of the rights and liabilities of all of the parties had not been adjudicated, Knight could have attempted to obtain an entry of default judgment against Fort Belknap Builders, Inc. If this had been done, there would have been a final judgment, and consequently this case would be ripe for appellate review. However, if a bankruptcy petition has been filed in Federal Court, then Knight’s action against Fort Belknap Builders, Inc. in Blaine County District Court may be stayed and Knight will not be able to obtain an entry of default judgment or further proceed against Fort Belknap Builders, Inc. Under federal law, the filing of a bankruptcy petition operates so as to stay other proceedings pending a Federal Court’s determination on the bankruptcy petition. See Collier on Bankruptcy, Vol. 1A, (14th ed.),§ 11. If a bankruptcy petition has been filed concerning Fort Belknap Builders, Inc., then it would be proper for Knight to petition for a Rule 54(b) certification of final judgment in order to facilitate appellate review. This cause of action was filed in February 1974 and is now going to be sent back to the trial court. This case has been in the courts for over 6 years and will probably be in the courts for sometime to come. Under these circumstances, this case would qualify as one of those infrequent harsh cases justifying a discretionary departure from the normal rule as to the time of appeal, in accordance with the principles enunciated in Roy. However, if a bankruptcy petition has not been filed concerning Fort Belknap Builders, Inc., then Knight is free to proceed against Fort Belknap Builders, Inc. and may not petition the trial court for, and be granted, a Rule 54(b) certification of final judgment in order to quickly file a notice of renewed appeal with this Court. In Allis-Chalmers Corp. v. Philadelphia Electric Co. (3rd Cir. 1975), 521, F.2d 360, 365, the Court discussed and distinguished between the granting of summary judgment and Rule 54(b) certification in the following manner: “. . . [t]he considerations which resulted in a grant of summary judgment are not the same considerations relevant to an order of final certification under Rule 54(b). Under summary judgment procedure, the essential inquiry is whether material facts are disputed. Under 54(b) procedure, the essential inquiry is whether, after balancing the competing factors, finality of judgment should be ordered to advance the interests of sound judicial administration and public policy.” In the absence of a filed bankruptcy petition concerning Fort Belknap Builders, Inc., and considering the principles, relating to Rule 54(b) certification, the record here reveals no danger of hardship or injustice through delay which would be alleviated by im mediate appeal. Under these circumstances there is absolutely nothing in the record meriting a conclusion that this is a case which qualifies as one of those infrequent harsh cases justifying the discretionary departure from the normal rule as to the time of appeal. Appeal dismissed without prejudice. MR. CHIEF JUSTICE HASWELL, and JUSTICES DALY, HARRISON and SHEEHY, concur.
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JUSTICE RICE delivered the Opinion of the Court. ¶1 Appellant Yarbro, Ltd., d/b/a Lake Mead Radiologists (Yarbro), appeals from the order of the Fourth Judicial District Court, Missoula County, granting summary judgment in favor of Respondent Missoula Federal Credit Union (MFCU) and denying Yarbro’s motion for a change of venue. We affirm. ¶2 The following issues are dispositive: ¶3 1. Whether the District Court erred in granting summary judgment to MFCU on Yarbro’s conversion claim on the grounds that the claim was barred by the applicable statute of limitations. ¶4 2. Whether the District Court erred in granting summary judgment to MFCU on Yarbro’s breach of warranty claim on the grounds that Yarbro was responsible for the acts of its own employees. ¶5 3. Whether the District Court erred in denying Yarbro’s motion for a change of venue. FACTUAL AND PROCEDURAL BACKGROUND ¶6 Yarbro is a radiologist firm operated as Lake Mead Radiologists in Henderson, Nevada. Kathryn McLean (McLean) was employed by Yarbro from January of 1994 through June of 1996. McLean’s responsibilities included data entry, filing, posting payments, processing accounts receivable, sending out statements, billing and accounting. During the course of her employment, McLean forged signatures on over a hundred checks and money orders. McLean would intercept checks paid on patient accounts which were payable either to Lake Mead or to individual doctors; she would endorse the checks on behalf of Lake Mead or the individual doctors and make them payable to herself. Then, McLean would endorse the checks in her name and mail them to MFCU for deposit into her personal account there. The last deposit to McLean’s MFCU account was made on June 7, 1996. The value of the forged checks and money orders exceeded $60,000.00. ¶7 On June 9, 1999, Yarbro filed a complaint against MFCU in Missoula County seeking damages in the amount of the forged checks and money orders, alleging unlawful conversion of negotiable instruments by MFCU, under § 30-3-419, MCA (UCC § 3-419), and breach of transfer warranties, under § 30-4-207, MCA (UCC § 4-207). On July 3, 2000, Appellant moved for a change of venue, asserting that, because Honorable Edward McLean, a judge of the Fourth Judicial District, is the uncle of McLean, an impartial trial could not be conducted in Missoula County. On July 6, 2000, MFCU filed a motion for summary judgment, arguing Yarbro’s conversion claim was barred by statute of limitations, that Yarbro’s breach of warranty claim was barred because Yarbro is responsible for the acts of its own employees, and further, that Yarbro could not bring a claim for breach of transfer warranties against MFCU. On September 7, 2000, the District Court, Honorable John W. Larson presiding, denied Yarbro’s motion for change of venue and granted summary judgment in favor of MFCU. From that judgment and order, Yarbro appeals. STANDARD OF REVIEW ¶8 Sunsunary judgment is appropriate when the pleadings, discovery and affidavits establish that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review an order granting summary judgment de novo, by applying the same evaluation based on Rule 56, M.R.Civ.P., as the district court. Schumacker v. Meridian Oil Co., 1998 MT 79, ¶ 14, 288 Mont. 217, ¶ 14, 956 P.2d 1370, ¶ 14. ¶9 The moving party must demonstrate that no genuine issues of material fact exist. Then the burden shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Bell & Marra, PLLC v. Sullivan, 2000 MT 206, ¶ 25, 300 Mont. 530, ¶ 25, 6 P.3d 965, ¶ 25. If the court determines 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. Bell, ¶ 25. This Court reviews a district court’s legal conclusions to determine if they are correct. Bell, ¶ 25. ¶10 The party opposing summary judgment cannot rely on mere allegations in the pleadings, but must present its evidence raising genuine issues of material fact in the form of affidavits or other sworn testimony. Schumacker, ¶ 15; see also Klock v. Town of Cascade (1997), 284 Mont. 167, 943 P.2d 1262. While this Court resolves any inferences drawn from the factual record in favor of the party opposing summary judgment, mere denial, speculation, or conclusory statements are insufficient to raise a genuine issue of material fact. Schumacker, ¶ 15. DISCUSSION ¶11 1. Did the District Court err in granting summary judgment on the grounds that Yarbro’s conversion claims were barred by the applicable statute of limitations? ¶12 In Count I of its Complaint, Yarbro alleged unlawful conversion of negotiable instruments by MFCU pursuant to § 30-3-419, MCA (UCC § 3-419). The District Court granted summary judgment to MFCU on this count, finding the claim was time barred under the applicable statute of limitations, a holding which Yarbro contends was erroneous. ¶13 When interpreting the Uniform Commercial Code, we bear in mind its purposes and objectives. These objectives include the uniform application of commercial law among the various jurisdictions, the simplification and modernization of the law governing commercial transactions, and the presumption in favor of predictability and finality of commercial transactions. See § 30-1-102, MCA, “Purposes-rules of construction-variation by agreement.” ¶14 The applicable statute of limitations for conversion of negotiable instruments is set forth in § 30-3-122, MCA. Subsection (7) states: Unless governed by other law regarding claims for indemnity or contribution, an action for conversion of an instrument, for money had and received, or for like action based on conversion; for breach of warranty; or to enforce an obligation, duty, or right arising under this chapter and not governed by this section must be commenced within 3 years after the cause of action accrues. Section 30-3-122(7), MCA. The Official Comments state that this subsection covers conversion cases and other actions to enforce obligations or rights arising under Article 3, and that the three-year statute of limitations established by the statute “follows traditional law in stating that the period runs from the time the cause of action accrues.” ¶15 Section 27-2-102, MCA, sets forth the traditional rule in Montana regarding the accrual of a cause of action, and states in part: (1) For purposes of statutes relating to the time within which an action must be commenced: (a) a claim or cause of action accrues when all elements of the claim or cause exist or have occurred. (2) Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues. Lack of knowledge of the claim or cause of action, or of its accrual, by the party to whom it has accrued does not postpone the beginning of the period of limitation. Section 27-2-102(1) and (2), MCA. ¶16 In this case, Yarbro’s cause of action against MFCU for conversion accrued for each check at the time the check was deposited by McLean in her MFCU account and MFCU credited McLean’s account therefor. It is not disputed that the last deposit to McLean’s MFCU account was made on June 7, 1996. Because the elements of conversion for all transactions existed or occurred by then, the three-year statute of limitations for all claims began to ran, at the latest, on June 8, 1996. Yarbro’s complaint was not filed until June 9, 1999. ¶17 Yarbro argues the discovery doctrine should be applied to the statute of limitations for conversion in this case. The discovery doctrine is an equitable exception to the general rule that the statute of limitations begins to rim as soon as the cause of action accrues. According to the discovery doctrine, “the applicable statute of limitations begins to run once the plaintiff knew or should have known that a cause of action exists.” Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 160, 789 P.2d 567, 570. ¶18 Yarbro claims it had no reason to suspect that a conversion had occurred prior to June 10,1996, when it first discovered that McLean had engaged in fraudulent activities. Further, Yarbro asserts it was entitled to obtain copies of the checks in question from MFCU and inspect the checks to determine MFCU’s involvement in the matter. Moreover, Yarbro claims when it knew or should have known of the forgeries is a question of material fact that needs to be determined, and thus, summary judgment is inappropriate. ¶19 Yarbro’s assertion that the discovery doctrine should be applied here is premised upon two arguments. First, it cites the UCC statutes of limitation set forth at § 30-4-207(5), MCA, and § 30-3-417(4), MCA, both of which provide that “a cause of action for breach of warranty under this section accrues when the claimant has reason to know of the breach.” However, by the plain meaning of these provisions and their placement within statutes addressing breach of warranty, they are applicable only to breach of warranty actions, not conversion. These statutory provisions thus have no application to Yarbro’s conversion claim. ¶20 Secondly, Yarbro cites the concealment of McLean in this matter and our case law’s application of the discovery doctrine in certain instances. Although the application of the discovery doctrine to a UCC conversion case is one of first impression in Montana, substantial consideration of the issue has occurred in other courts, with significant agreement. ¶21 In Menichini v. Grant (3rd Cir. 1993), 995 F.2d 1224, the federal circuit court declined to apply the discovery doctrine to a UCC § 3-419 conversion case stating, “Where a party not engaging in fraudulent concealment asserts the statute of limitations defense, most courts have refused to apply the discovery rule to negotiable instruments, finding it inimical to UCC policies of finality and negotiability.” Menichini, 995 F.2d at 1230. ¶22 In Husker News Co. v. Mahaska State Bank (Iowa 1990), 460 N.W.2d 476, the Iowa Supreme Court offered similar reasons for not applying the discovery doctrine to a UCC § 3-419 conversion action and reported that other states are nearly unanimous in their refusal to apply the discovery rule in cases of conversion. It stated, “We find their decisions persuasive and note that such authority is entitled to even greater deference where consistency and uniformity of application are essential elements of a comprehensive statutory scheme like ... the Uniform Commercial Code.” Husker News Co., 460 N.W.2d at 478. ¶23 The Court of Appeals for the District of Columbia Circuit also endorsed this approach. In Kuwait Airways Corp. v. American Sec. Bank (D.C. Cir. 1989), 890 F.2d 456, the court rejected the application of the discovery rule to a UCC § 3-419 action and held that “the discovery rule does not apply to toll the statute of limitations where a bank is sued for conversion on a forged endorsement,” unless the bank fraudulently concealed the transaction. Kuwait Airways Corp., 890 F.2d at 462; quoting Southwest Bank & Trust Co. v. Banker’s Commercial Life Ins. Co. (Texas 1978), 563 S.W.2d 329. ¶24 Two reasons often cited for rejecting the application of the discovery doctrine in conversion cases are the need for finality in transactions involving negotiable instruments, and the presumption that a property owner knows what and where his property is. Husker News Co., 460 N.W.2d at 478. ¶25 The facts in Husker News Co. were similar to, but even more harsh than, those now before the Court. In Husker, the plaintiffs employee collected customer payments, forged the employer’s indorsement on the checks, and deposited the checks into his personal account. The employee concealed his embezzlement from his employer, and the employer did not discover the employee’s actions until after Iowa’s statute of limitations had already run. When the defendant bank interposed the statute of limitations defense to the plaintiffs conversion action, the plaintiff asserted the discovery doctrine, claiming the employee’s fraudulent concealment prevented discovery. Citing the UCC objectives of predictability and finality in commercial transactions, the Iowa Supreme Court refused to apply the discovery doctrine to conversion actions: We think the considerations of finality and predictability represented by the majority rule are substantial and outweigh the countervailing equities which led us to apply the discovery rule in other cases. The strength of our system of commerce depends on a negotiable instrument law that is mechanical in application. ... In conclusion, we hold that the discovery rule does not apply to conversion actions under Iowa Code section 554.3419(l)(c) [UCC § 3-419]. The plaintiffs cause of action against the Mahaska State Bank is therefore barred by the statute of limitations. The decision of the district court granting the bank’s motion for summary judgment is affirmed. Husker News Co., 460 N.W.2d at 478-79. ¶26 The court’s rationale in Kuwait Airways Corp. was that an employer should be able to discover an employee who is forging checks within the applicable period of limitation by exercising reasonable and prudent business practices. “There can be no question in the instant case that an ordinary business could have detected the siphoning off of funds within a three-year period of their conversion.” Kuwait Airways Corp., 890 F.2d at 461. ¶27 Yarbro’s attempt to trigger application of the discovery doctrine by asserting McLean’s fraudulent concealment is not well founded. McLean was Yarbro’s employee, notMFCU’s employee, and Yarbro has not alleged any concealment on the part of MFCU. We have held that “when defendant’s ‘fraudulent concealment’ prevents a plaintiff from discovering a cause of action, the statute of limitations is generally tolled.” Yellowstone Conference of the United Methodist Church v. D.A. Davidson, Inc. (1987), 228 Mont. 288, 294, 741 P.2d 794, 798. For fraudulent concealment to occur, “there must be an affirmative act committed by the defendant, and the affirmative act must be calculated to obscure the existence of the cause of action.” Yellowstone Conference of the United Methodist Church, 228 Mont. at 294, 741 P.2d at 798. Yarbro has set forth no evidence claiming MFCU fraudulently concealed McLean’s actions or Yarbro’s discovery thereof. ¶28 We decline Yarbro’s suggestion to apply the discovery doctrine to Yarbro’s conversion claim. The plain meaning of § 30-3-122(7), MCA, requires commencement of a conversion action within three years of the action’s accrual. Further, the public would be poorly served by a rule that effectively shifts the responsibility for careful bookkeeping and employee supervision away from those in the best position to monitor accounts and employees. The strict application of the three-year statute of limitations, while predictably harsh in some cases, best serves the goals advanced by the Uniform Commercial Code. ¶29 Having determined the discovery doctrine is not applicable in this case, and that the statute of limitations was not tolled by concealment, Yarbro’s argument that summary judgment cannot be entered because a question of fact remains regarding when Yarbro knew or should have known of McLean’s forgeries must fail. The material facts necessary for determining if summary judgment is appropriate by reason of statute of limitations are the dates of the conversion and the filing of Yarbro’s Complaint. These facts are not in dispute, and therefore, the District Court correctly held that MFCU is entitled to judgment as a matter of law on Yarbro’s conversion claim. ¶30 2. Did the District Court err in granting summary judgment to MFCU on Yarbro’s breach of warranty claim on the grounds that Yarbro was responsible for the acts of its own employees? ¶31 In Count II of its Complaint, Yarbro alleged that MFCU is a collecting bank and sought damages against MFCU for breach of transfer warranties under § 30-4-207, MCA. Section 30-4-207, MCA, states in part: (1) A customer or collecting bank that transfers an item and receives a settlement or other consideration warrants to the transferee and to any subsequent collecting bank that: (a) the warrantor is a person entitled to enforce the item; (b) all signatures on the item are authentic and authorized; (c) the item has not been altered; (d) the item is not subject to a defense or claim in recoupment stated in 30-3-305(1) of any party to the item that can be asserted against the warrantor; and (e) the warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker or acceptor or, in the case of an unaccepted draft, the drawer. Section 30-4-207(1), MCA. ¶32 The District Court granted summary judgment to MFCU on Yarbro’s breach of warranty claim, holding, pursuant to § 30-3-420, MCA, that an employer who entrusts an employee with responsibility for processing instruments is liable if that employee fraudulently endorses an instrument, except to the extent that a party taking the instrument for value fails to exercise ordinary care and thereby contributes to the loss. The District Court found that Yarbro produced no evidence to refute MFCU’s factual assertions that McLean was an employee entrusted with responsibility for processing instruments and that MFCU had exercised ordinary care in accepting the instruments for payment. Therefore, it entered summary judgment on the breach of warranty claim. On appeal, Yarbro argues that McLean’s actual or apparent authority to process instruments and whether MFCU exercised ordinary care, were questions of fact which precluded summary judgment. ¶33 MFCU argued to the District Court, and also to this Court on appeal, that while Yarbro was indeed responsible for the actions of its own employees, and that MFCU exercised ordinary care in taking the instruments for payment, it was unnecessary to reach these issues because the law does not provide Yarbro a breach of warranty remedy against MFCU in the first instance. MFCU’s analysis is correct. ¶34 Section 30-4-207(1), MCA, provides that a customer or collecting bank that transfers an instrument and receives consideration therefor makes certain warranties “to the transferee and to any subsequent collecting bank.” Thus, transferors, who place or transfer an instrument within the stream of commercial transactions which repeatedly accept the instrument and pay thereon until the instrument reaches the payor bank which makes the final payment from the customer’s account, warrant to their transferees, who are those to whom they pass the instrument and from whom they receive payment, as follows: that they, the transferors, are entitled to enforce the instrument for payment, that the signatures on the instrument are authentic and authorized, that the instrument has not been altered, that the instrument is not subject to a defense or claim of recoupment under § 30-3-305, MCA, and that the transferor is not aware of an insolvency proceeding which may affect payment on the instrument. A transferee receives the instrument and makes payment to the transferor on the basis of these warranties, and is entitled to make a breach of warranty claim against the transferor in the event the instrument is later determined to be fraudulent and a reimbursing payment to the transferee is denied. ¶35 Under these provisions, and the facts here, Yarbro is not a transferee. It did not receive the instruments and the associated transfer warranties from MFCU, and did not make payment to MFCU in consideration for the instruments. As Yarbro received no instrument or transfer warranty from MFCU, it is not entitled, under the terms of the statute, to bring a cause of action for breach of that warranty against MFCU. The UCC provides remedies to Yarbro for the losses it sustained, but breach of transfer warranty against MFCU is not one of them. ¶36 The District Court granted summary judgment on Yarbro’s breach of warranty claim on the grounds that Yarbro was responsible for McLean’s actions under § 30-3-420, MCA. Although the basis of the District Court’s summary judgment order was incorrect, it reached the correct result. If the district court is correct in its conclusions, it is immaterial what reasons were assigned therefor. Laurie v. M. & L. Realty Corp. (1972), 159 Mont. 404, 408, 498 P.2d 1192, 1194. The District Court correctly concluded that summary judgment on Yarbro’s breach of warranty claim against MFCU was appropriate. ¶37 3. Did the District Court err in denying Yarbro’s motion for a change of venue? ¶38 Yarbro argues that the District Court erred in denying the motion for a change of venue it filed, asserting that because Honorable Edward McLean was a potential witness in the case, a conflict of interest was presented that justified moving the case to another judicial district. Section 25-2-201, MCA, states when change of venue is required: The court or judge must, on motion, change the place of trial in the following cases: (1) when the county designated in the complaint is not the proper county; (2) when there is reason to believe that an impartial trial cannot be had therein; (3) when the convenience of witnesses and the ends of justice would be promoted by the change. Yarbro’s motion was based upon § 25-2-201(2), MCA. Yarbro asserts that an impartial trial cannot be had in Missoula County because Kathryn McLean is Judge McLean’s niece. Because Kathryn McLean is a party to this action, and Judge McLean is a judge in Missoula County, Yarbro asserts that it is a conflict of interest for Honorable John W. Larson to preside over this matter, as Judge Larson and Judge McLean work in the same courthouse and are judges in the same judicial district. ¶39 Yarbro filed its motion for change of venue on July 3, 2000. MFCU’s answer had been filed on September 10,1999. A plaintiff must raise the issue of venue within 20 days of the filing of the defendant’s answer or whenever at some time more than 20 days after the last pleading has been filed an event occurs which thereafter affords good cause to believe that an impartial trial cannot be had under ground 2 of said section 25-2-201, and competent proof is submitted to the court that such cause of impartiality did not exist "within the 20-day period after the last pleading was filed, then the court may entertain a motion to change the place of trial under ground 2 of section 25-2-201 within 20 days after that later event occurs. Rule 12(b)(iii), M.R.Civ.P. Yarbro’s motion for change of venue was not filed within 20 days of MFCU’s answer. Moreover, Yarbro has not pointed to any event that occurred 20 days before Yarbro filed its motion for change of venue that establishes good cause to believe that an impartial trial cannot be had in Missoula County. To the contrary, the record reflects that Yarbro learned of the relationship between Kathryn McLean and Judge McLean in the fall of 1999, yet did not file its motion for change of venue until July 3,2000, long after expiration of the 20 days provided by Rule 12, M.R.Civ.P. Because Yarbro’s motion for change of venue was not timely, the District Court correctly denied the motion. ¶40 The District Court properly granted summary judgment in favor of MFCU on Yarbro’s conversion and breach of warranty claims, and correctly denied Yarbro’s motion for change of venue. Its judgment is affirmed. JUSTICES NELSON, COTTER and REGNIER concur. Although not named in the caption, McLean was joined in the action as a third party defendant.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 Robert Lee Crawford (Crawford) was charged in the Fourth Judicial District Court with three felonies, including Count III, Criminal Possession of Property Subject to Forfeiture, the property having an approximate amount of $1025. The case proceeded to trial, and during jury deliberations the jury asked the District Court to clarify the jury instruction concerning Count III. The court instructed the jury that it could convict Crawford on that count even if it found only a portion of the $1025 came from the sale of dangerous drugs. The jury convicted Crawford on all three counts and in a special interrogatory, concluded that only $225 of the $1025 was subject to forfeiture. Crawford appeals his conviction on Count III, property subject to forfeiture. We reverse. ¶2 The dispositive issue on appeal is: Whether the District Court abused its discretion when it submitted a supplemental jury instruction that allowed the jury to find that only a portion of the alleged property subject to forfeiture was proceeds from the sale of dangerous drugs. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Crawford’s arrest stemmed from an alleged sale of methamphetamine to Beverly New (New), who was arrested for shoplifting on July 9, 1998. Following New’s arrest, officers found methamphetamine while searching her purse. New informed the officers that she purchased the methamphetamine from Crawford earlier that day. The next day, New met with Detective Sergeant Larry Jacobs (Detective Jacobs) from the Missoula County Sheriffs Department about setting up another drug purchase with Crawford. New agreed and placed a call to Crawford, making arrangements to purchase methamphetamine from him at a gas station in East Missoula that afternoon. Detective Jacobs recorded the phone conversation between New and Crawford. ¶4 Detective Jacobs and three other law enforcement officers went to the gas station to intercept Crawford. When Crawford arrived the officers attempted to block Crawford’s vehicle, but Crawford managed to drive away. Following a brief pursuit, Crawford abandoned the vehicle and continued to flee on foot. Later that day, Crawford was caught riding as a passenger in another vehicle and he was arrested. ¶5 When Detective Jacobs searched Crawford incident to his arrest, he discovered $1025 in cash inside Crawford’s front pants pocket. Crawford told the detective that the money was from a roofing job and other spot jobs. Detective Jacobs testified that since Crawford failed to provide him with any names of employers, he was unable to verify Crawford’s explanation of the source of the cash. In addition, when the detectives searched the vehicle abandoned by Crawford, they found a ziploc baggie containing methamphetamine residue. ¶6 On July 31,1998, Crawford was charged by Information with the following felony offenses: Count I, Criminal Sale of Dangerous Drugs; Count II, Criminal Possession of Dangerous Drugs; and Count III, Criminal Possession of Property Subject to Forfeiture. On Count III, the Information alleged that “[o]n or about July 9, 1998, [Crawford] knowingly possessed property, approximately $1,025.00 that is subject to criminal forfeiture as proceeds from the exchange of dangerous drugs.” Crawford entered pleas of not guilty to all three counts and the matter proceeded to trial on December 8, 1998. ¶7 At trial, New told the jury she called Crawford early in the morning on July 9, 1998, asking him to sell her some methamphetamine. New testified she met Crawford on her way to work, paying him $225, probably in twenty and ten dollar denominations, for three and one-half grams of methamphetamine packaged in a ziploc baggie. New provided an ATM receipt showing a $230 cash withdrawal on July 9, 1998, at 5:37 a.m. ¶8 Crawford called only one witness in his defense, Diane Dupras (Dupras). Dupras testified that a couple of days before Crawford’s arrest, she gave Crawford $100 to purchase a car battery, and that on the day of his arrest, July 10, 1998, she paid Crawford $800 to complete some body repair work on her car. A copy of a withdrawal slip from Dupras’ bank account indicated $800 in cash was withdrawn from her account on July 6,1998. ¶9 On cross-examination, Dupras testified that she assumed the bank gave her large bills, fifties and/or one-hundreds, noting that is what they usually do. The State questioned Dupras about the date she allegedly gave Crawford the $800, noting that in her written statement she indicated that she gave him the $100 on July 8,1998, and the $800 on July 6, 1998, not the day Crawford was arrested. The State also asked Dupras if her son did body work on cars and Dupras explained that her son was a mechanic, but that he did not do body work. ¶10 After the defense rested, the State called Missoula County Sheriff Detective Tom Lewis (Detective Lewis) as a rebuttal witness. Detective Lewis testified that he observed Dupras’ son doing some body work on a car during the summer of 1998. ¶11 At the close of the defendant’s case, but prior to Detective Lewis’ testimony, the parties finalized the jury instructions. The State did not move to make any alterations to the instructions. Later, after the jury received the instructions and began deliberating, it sent a note to the District Court concerning Count III, asking if it could find that only a portion of the $1025 came from the sale of drugs. ¶12 After hearing arguments from both parties, the District Court concluded that the jury did not have to find the entire $1025 was from the sale of drugs. The court proposed an interrogatory, allowing the jury to allocate the dollar amount it determined was from the sale of drugs, if it first found the other elements set out in Count III were established beyond a reasonable doubt. Crawford’s objection to the special interrogatory was overruled, and the court gave the supplemental instruction to the jury. Sometime later, the jury returned a verdict, finding Crawford guilty on all three counts. In response to the special interrogatory the jury found Crawford possessed $225 from the sale of dangerous drugs. ¶13 On January 29, 1999, the District Court sentenced Crawford to the Department of Corrections for a term of five years on Count I, to the Montana State Prison (MSP) for five years on Count II, and to MSP for ten years on Count III. The court suspended all but 204 days on each of the sentences, and ordered all three sentences to run concurrently. The court further ordered that the property subject to forfeiture ($225), be disposed of in accordance with State law, and that of the remaining $800, $400 would be credited against Crawford’s fine and $400 would go to Dupras. ¶14 Crawford appeals his conviction on Count III, based on the District Court’s supplementary instruction to the jury which allowed it to find a portion of the $1025 was proceeds of drug transactions. In his opening brief, Crawford also challenges his conviction on Count I, alleging the State failed to present sufficient evidence that he sold dangerous drugs. However, Crawford did not provide any argument on this issue, and accordingly, we conclude it has been abandoned. STANDARD OF REVIEW ¶15 The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Johnson, 1998 MT 289, ¶ 28, 291 Mont. 501, ¶ 28, 969 P.2d 925, ¶ 28. Moreover, we review a district court’s decision to provide the jury with requested information pursuant to § 46-16-503(2), MCA, for abuse of discretion. State v. Brogan (1995), 272 Mont. 156, 162-63, 900 P.2d 284, 288-89 (citing State v. Hawkins (1974), 165 Mont. 456, 460, 529 P.2d 1377, 1379) (when district court fully and correctly instructed the jury as to defendant’s legal duties at issue, it did not abuse its discretion in refusing to further instruct the jury). DISCUSSION ¶16 Did the District Court abuse its discretion when it submitted a supplemental jury instruction that allowed the jury to find that only a portion of the alleged property subject to forfeiture was proceeds from the sale of dangerous drugs? ¶17 Both before the trial started and at the close of the evidence, the District Court instructed the jury on Count III by giving Instruction No. 5-11, which provided: To convict the defendant of criminal possession of property subject to forfeiture, the State must prove the following elements: 1. That the defendant possessed property, approximately $1025.00; 2. That the property is proceeds from the exchange of dangerous drugs; and 3. That the defendant acted knowingly. If you find from your consideration of the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from your consideration of the evidence that any of these elements has not been proved beyond a reasonable doubt then you should find the defendant not guilty. ¶18 At some point during deliberations, the jury apparently became uncertain as to how Instruction No. 5-11 should be applied, as indicated by the following note sent to the District Court: Count III. Do we have to find the entire $1025 was the result of sale of drugs, or can we find only a portion of that amount came from the sale? After conferring with both parties, the District Court provided the following supplemental instruction to the jury: In response to your note, I instruct you that you may find only a portion of the amount ($1,025.00) came from the sale of dangerous drugs and still convict the Defendant if you find all the elements are proven beyond a reasonable doubt. The court also supplied the jury with a special interrogatory, which provided: We the jury in the above entitled cause, having found the Defendant guilty of Count III, Criminal Possession of Property Subject to Forfeiture, find the sum of $_to be the amount of money possessed by the Defendant from the sale of dangerous drugs. As part of its verdict, the jury entered the sum of $225 in the blank provided on the interrogatory. ¶19 After deliberations have begun, it is within the district court’s discretion whether to provide information in response to a jury’s inquiry. Section 46-16-503(2), MCA, provides in relevant part that: [a]fter the jury has retired for deliberation ... if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties. A district court’s decision to provide the jury with requested information pursuant to § 46-16-503(2), MCA, is reviewed for abuse of discretion. Brogan, 272 Mont. at 162-63, 900 P.2d at 288-89. ¶20 Crawford argues that it was error for the District Court to supplement the jury instructions, noting that Instruction No. 5-11 made the specific dollar amount alleged by the State ($1025) an element of Count III. Crawford contends that once given, that instruction became the law of the case and therefore the jury was bound to follow it as given. In the alternative, Crawford argues that the District Court’s supplementary instruction, allowing the jury to find that only a portion of the $1025 was drug proceeds, effectively amended the information which had set out the figure as “approximately $1025,” and argues that altering a substantive element of an information prejudiced Crawford because he could not adjust his defense strategy to rebut the State’s reduced burden of proof. ¶21 In response, the State argues that because possession of any amount of proceeds from an illegal drug sale violated § 45-9-206, MCA, the amount identified in Count III is not an element of the crime, or even a material component of the charge or the instruction, and thus the supplemental instruction did not amend the Information. The State contends the supplemental instruction given by the District Court was proper and that the jury’s finding of a lessor amount of property subject to forfeiture did not cast reasonable doubt on the State’s proof with respect to the actual elements of the offense. ¶22 The record is clear that the State not only charged Crawford with possession of the specific figure, $1025, in the Information, but it also prosecuted Crawford on this same figure, thus assuming the burden of proving that Crawford possessed the approximate amount of $1025 from proceeds of the sale of dangerous drugs. Moreover, the State underscored the amount as an element of the offense when in its opening comments, it asserted that at Crawford’s arrest, “he had $1025 on his person, and it’s the State’s burden to show you that those proceeds were from the sale of dangerous drugs.” The State then attempted to refute any alleged legitimate sources for any portion of the $1025, when it elicited testimony from Detective Jacobs concerning lack of verification of Crawford’s roofing employer, attempted to discredit Dupras during cross-examination, and presented rebuttal witness testimony. ¶23 Although the State was clearly aware of Crawford’s defense on Count III (i.e., there were other legitimate sources of $1025), in its closing argument, the State continued to assume the burden of demonstrating the entire $1025 was drug proceeds, telling the jury that “on Count III ... we have to show that [Crawford] possessed property subject to forfeiture. That he had about $1025, and that it was subject to forfeiture, and that it is the proceeds from drug transactions.” The State argued that various evidence, including the denominations of the bills, the credibility of Dupras, and the circumstances of the arrest and New’s testimony, showed beyond a reasonable doubt that the money was drug proceeds. ¶24 Significantly, at no time during the presentation of its case did the State offer evidence that perhaps only a portion of the $1025 was from the sale of drugs, nor did it ever accept such a possibility in its closing remarks, despite the fact that Crawford was clearly trying to establish other sources for some or all of the money. ¶25 Crawford cites State v. Cline (1976), 170 Mont. 520, 555 P.2d 724, for the proposition that under the law of the case doctrine, the State was bound to prove the elements of the crime as set out in the jury instructions. In Cline, three defendants were convicted of obtaining money by false pretenses, by filing a false claim for workmen’s compensation death benefits. The State’s proposed instruction, setting out the crime of obtaining money by false pretenses, included receipt of settlement proceeds as an element of the offense. At trial, the State failed to present any proof that two of the defendants received any part of the settlement proceeds. Although on appeal the State argued that receipt of the proceeds was unnecessary for a conviction, we concluded that the instruction “requiring such proof became the ‘law of the case’ and the jury was bound thereby.” Cline, 170 Mont. at 527, 555 P.2d at 729 (citations to civil cases omitted). See also, State v. Hickman (Wash. 1998), 954 P.2d 900 (under Washington’s law of the case doctrine, state assumes the burden of proving otherwise unnecessary elements of the offense when such added elements are included without objection in the “to convict” instructions to the jury). ¶26 More recently, we noted that “[i]n the civil context ‘we have long adhered to the rule that an instruction given without an objection becomes the law of the case,’ ” concluding that “[t]here is no good reason why this same rule should not apply in the criminal context,” when the State had opportunity to object to a proposed instruction, but failed to do so. State v. Robbins, 1998 MT 297, ¶ 30, 292 Mont. 23, ¶ 30, 971 P.2d 359, ¶ 30, overruled in part on other grounds in State v. LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204 (citing DeBruycker v. Guaranty Nat. Ins. Co. (1994), 266 Mont. 294, 301, 880 P.2d 819, 823). In Robbins, we held that the State’s failure to object to the defendant’s proposed negligent homicide instruction, although it had ample opportunity, rendered the instruction the law of the case. Robbins, ¶ 30. ¶27 We conclude the situation here is similar to that presented in Cline and Hickman, compelling a similar result. We hold that when the State fails to properly object to a jury instruction, the instruction, whether it includes an unnecessary element or not, becomes the law of the case once delivered, and the jury is accordingly bound by it. We therefore conclude that Instruction No. 5-11 became the law of the case and the jury was bound to follow it. Accordingly, we conclude that the District Court abused its discretion when it gave the supplemental instruction that allowed deviation from the original “to convict” instruction which had alleged the specific dollar figure of $1025. ¶28 We further conclude the State did not establish beyond a reasonable doubt that the $1025 possessed by Crawford was proceeds from the sale of drugs. The evidence did not sufficiently establish that even “approximately” $1025 was proceeds from the sale of dangerous drugs, since the jury was convinced only $225 was attributable to drug sales, as evidenced by its answer to the special interrogatory. ¶29 Therefore, for a lack of proof of one of the elements of the offense as defined by Instruction No. 5-11, Crawford’s conviction on Count III is reversed. CHIEF JUSTICE GRAY, JUSTICES RICE and LEAPHART concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Curtis Feldbrugge (Feldbrugge) appeals from the Fourth Judicial District Court's order affirming the Mineral County Justice Court's denial of his motion to suppress. We affirm. ¶2 We re-state the issues on appeal as follows: ¶3 (1) Were Feldbrugge's due process rights violated when the arresting officer informed him of his right to obtain an independent blood test after he administered the portable breath test? ¶4 (2) Was Feldbrugge's arrest supported by probable cause? FACTUAL AND PROCEDURAL BACKGROUND ¶5 The parties have stipulated to the following facts pertinent to our review. On November 16, 2000, at approximately 11:20 p.m., Feldbrugge drove westbound on Interstate 90 past two patrol cars parked in the median near Superior, Montana. Mineral County Deputy Sheriff Douglas obtained a radar speed result showing that Feldbrugge was driving 88 miles per hour in a 75 miles per hour speed limit zone. ¶6 A second officer, Highway Patrol Officer Reiner, pulled his patrol car onto the freeway to stop Feldbrugge. He saw Feldbrugge's car brake quickly and exit the freeway onto the off ramp leading to Superior. The officer then activated his vehicle's emergency lights, and Feldbrugge stopped his car. ¶7 Officer Reiner parked behind Feldbrugge's car and approached the car. He told Feldbrugge that he had been pulled over for speeding. Officer Reiner asked Feldbrugge to produce his driver's license, registration and proof of insurance. Feldbrugge had difficulty removing his driver's license from his billfold. Feldbrugge produced proof of insurance after Officer Reiner's second request, and he continued to look for his registration in the glove box. ¶8 Officer Reiner left Feldbrugge's car and walked back towards his patrol vehicle. On the way, he remarked to Deputy Douglas that he did not smell the odor of an alcoholic beverage coming from Feldbrugge, but his speech was slurred. ¶9 Minutes later, Feldbrugge got out of his car, walked to Officer Reiner's patrol vehicle and handed him his registration. Officer Reiner asked Feldbrugge several questions, and Feldbrugge admitted having had a couple of drinks. Officer Reiner testified that Feldbrugge's eyes appeared bloodshot and glassy and that he appeared confused and unsteady on his feet. Officer Reiner did not ask Feldbrugge to perform any field sobriety tests. Officer Reiner testified that after Feldbrugge was asked to extinguish a cigarette, he smelled an odor of alcohol on Feldbrugge. ¶10 Officer Reiner asked Feldbrugge to take a breath test on a portable breath tester (PBT). He told Feldbrugge that if he passed the PBT, he would not be arrested. Officer Reiner further stated that if Feldbrugge did not pass the PBT, he would be arrested for DUI. ¶11 Officer Reiner then read a short advisory which did not contain information regarding Feldbrugge's right to obtain an independent blood test to challenge the PBT results. Feldbrugge consented to the PBT, and Officer Reiner told him that the PBT result was .17 or .18. Officer Reiner later testified that the PBT result was .197. Feldbrugge was arrested and taken to the Mineral County Jail. Before he was administered the intoxilyzer breath test at the jail, he was read the implied consent advisory form, including a statement that he had the right to an independent blood test. ¶12 In the Mineral County Justice Court, Feldbrugge filed a motion to suppress the PBT results and a motion to suppress evidence obtained as a consequence of his arrest without probable cause. The Justice Court conducted a hearing on Feldbrugge's motions and subsequently denied them. Thereafter, Feldbrugge pled guilty to DUI, reserving his right to appeal the denial of his motions to the District Court pursuant to § 46-12-204(3), MCA. The District Court affirmed the Justice Court's denial of Feldbrugge's motion to suppress. Feldbrugge appeals. DISCUSSION ¶13 (1) Were Feldbrugge's due process rights violated when the arresting officer informed him of his right to obtain an independent blood test after he administered the portable breath test? ¶14 Our standard of review of a ruling on a motion to suppress where the facts are not in dispute is to determine whether the district court's conclusions of law are correct as a matter of law. State v. Griggs, 2001 MT 211, ¶ 17, 306 Mont. 366, ¶17, 34 P.3d 101, ¶ 17 (citation omitted). This Court's review is plenary as to whether the district court correctly interpreted and applied the law. Griggs, ¶ 17 (citation omitted). ¶15 Feldbrugge argues that the arresting officer's failure to inform him of his right to an independent blood test to challenge the PBT result violated important policies underlying our decision in State v. Strand (1997), 286 Mont. 122, 951 P.2d 552 (overruled on other grounds by State v. Minkoff, 2002 MT 29, ¶ 23, 308 Mont. 248, ¶ 23, 42 P.3d 223, ¶ 23). In Strand, the Kalispell Police Department had an express policy that law enforcement officers should not read to the accused the implied consent advisory form, which explained the substance of Montana's implied consent statutes, unless or until the accused refused to submit to an officer-designated breath test. Strand, 286 Mont. at 125, 951 P.2d at 553. Since Strand submitted to the officer-designated breath test, he was never read the form, and, as a result, he was never informed of his right to obtain an independent blood test. Strand, 286 Mont. at 125, 951 P.2d at 553-54. ¶16 We held that due process requires that the arresting officer inform the accused of his or her right to obtain an independent blood test, regardless of whether the accused consents to the test designated by the officer. Strand, 286 Mont. at 126, 951 P.2d at 554. We reasoned that due to the evanescent character of blood alcohol evidence, a defendant must be appraised of the right to obtain an independent blood test at the time of the arrest while the blood can still be analyzed. Strand, 286 Mont. at 126-27, 951 P.2d at 554. We also noted that a person accused of driving under the influence of alcohol does not have a right to counsel before submitting to a breath test and, therefore, the arresting officer is the only person in a position to inform the defendant of his right to an independent blood test. We held that the arresting officer thus has an affirmative duty to inform a defendant of this right. Strand, 286 Mont. at 127, 951 P.2d at 554-55. ¶17 Feldbrugge insists that although he was informed of his right to an independent blood test after his arrest and before the intoxilyzer breath test, the notice came too late for Feldbrugge to make a fully informed decision as to whether to take the PBT at the side of the road. He urges the Court to require law enforcement officers to inform individuals of the right to an independent blood test for every breath test an officer requests. ¶18 The District Court concluded that the facts in Strand differed remarkably from the facts in this case. It stated that unlike the defendant in Strand, who was never informed of his right to an independent blood test, Feldbrugge was informed of his right to the test after arrest and prior to the officer's request for a police administered intoxilyzer breath test. The court concluded that Feldbrugge's due process rights were not violated because he was appraised of the right to an independent blood test while his blood could still be analyzed to detect the presence of alcohol. ¶19 The State urges this Court to uphold the District Court's conclusions of law. The State claims that the arresting officer in this case complied with Strand when he informed Feldbrugge of his right to an independent blood test after his arrest and at a time when he was able to meaningfully exercise the right. The State maintains that our holding in Strand involves a DUI defendant's right to attempt to obtain potentially exculpatory evidence and does not implicate the separate right of such a defendant to refuse to submit to a breath test which has been requested under Montana's implied consent statutes. ¶20 We agree. Feldbrugge apparently argues that had he been informed of his right to an independent blood test, he might have refused to consent to the PBT. However, the notion that Feldbrugge had a choice between submitting to a PBT or obtaining an independent blood test, without penalty, is misguided. ¶21 Every person who operates a motor vehicle in the state of Montana has impliedly consented to a blood or breath test for the purpose of determining the presence or amount of alcohol or drugs in the body. Section 61-8-402(1), MCA. A person may refuse to submit to the test, but his or her driver's license will be immediately seized and suspended. Section 61-8-402(4), MCA. A person may obtain an independent test in addition to the test administered at the direction of an officer. Section 61-8-405(2), MCA. ¶22 The corresponding right to an independent blood test, as discussed in our Strand decision, involves the right to obtain exculpatory evidence and is separate from the obligation to submit to an officer-designated test pursuant to Montana's implied consent statutes. For instance, had Feldbrugge been informed of his right to an independent blood test prior to consenting to the PBT, his options remained the same: he could have consented to the PBT or he could have refused it and had his driver's license seized. Consequently, there was no reason for the arresting officer to inform him of his right to an independent blood test prior to requesting the PBT. Rather, under Strand, the arresting officer was required to timely inform Feldbrugge that he could obtain an independent blood test in addition to the PBT and intoxilyzer so that Feldbrugge might gather potential exculpatory evidence. ¶23 We hold that Feldbrugge's due process rights were not violated when the arresting officer informed him of his right to obtain an independent blood test after he administered the PBT. The District Court properly affirmed the Justice Court's denial of Feldbrugge's motion to suppress. ¶24 (2) Was Feldbrugge's arrest supported by probable cause? ¶25 Feldbrugge concedes that at the time of his arrest, Officer Reiner had a particularized suspicion that he was under the influence of alcohol. However, Feldbrugge insists that without the PBT results, the officer lacked probable cause to arrest him for DUI and that all the evidence gathered as a result of the arrest should be suppressed. Since we hold that the PBT results are admissible, we conclude that Feldbrugge's arrest was supported by probable cause. CHIEF JUSTICE GRAY, JUSTICES TRIEWEILER, COTTER and RICE concur.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 F ermin Molina (Molina) appeals an order of the District Court for the Thirteenth Judicial District, Yellowstone County, granting Panco Construction, Inc.’s Motion for Summary Judgment on Molina’s personal injury complaint. We reverse and remand for further proceedings consistent with this Opinion. ¶2 Molina raises the following issues on appeal: ¶3 1. Does the fictitious name statute allow Molina to amend his complaint and substitute Panco Construction, Inc. for John Doe I after the expiration of the three-year statute of limitations for a negligence claim when Molina named the wrong corporation as a defendant in his original complaint? ¶4 2. Did the District Court err in granting Panco Construction, Inc.’s Motion for Summary Judgment? ¶5 Because we hold that the District Court erred in failing to consider the provisions of Rule 4E(2), M.R.Civ.P., in conjunction with the fictitious name statute and the misnomer rule, we reverse and remand to the District Court for further proceedings on that question. Consequently, we do not address Issue 1 regarding the fictitious name statute and its effect on the three-year statute of limitations. Factual and Procedural Background ¶6 In 1997, Molina was employed by Hunt Brothers Construction in Billings, Montana. On August 5, 1997, Molina was injured at a construction site when a wall fell in upon him and crushed his leg. Molina filed a complaint in the Yellowstone County District Court on July 27, 2000, alleging that Panco, Inc., as general contractor, breached its duty to Molina by failing to supervise the job site and by failing to provide a safe place to work. In his complaint, Molina made the same allegations against fictitious defendants John Does I through III. ¶7 After timely filing his complaint and serving Panco, Inc., Molina learned that there are two different corporations registered in the State of Washington using the name “Panco.” Panco, Inc.’s principal place of business is Walla Walla, Washington. The other corporation, Panco Construction, Inc. has its principal place of business in Spokane, Washington. The corporations are totally unrelated to each other. ¶8 When Molina discovered that the name of the actual defendant in his case was Panco Construction, Inc. and not Panco, Inc., he filed an Amended Complaint naming Panco Construction, Inc. in place of Panco, Inc. The Amended Complaint retained the fictitious defendants John Does I through III. Molina filed the Amended Complaint before Panco, Inc. filed a responsive pleading, thus, pursuant to Rule 15(a), M.R.Civ.P., leave of court to file the Amended Complaint was not required. ¶9 The Amended Complaint was filed on November 8, 2000, three months and three days after the expiration of the three-year statute of limitations for negligence claims. See § 27-2-204(1), MCA. Panco Construction, Inc. was served with the Amended Complaint and an amended summons. On January 9,2001, Panco Construction, Inc. filed its answer listing as an affirmative defense that Molina’s action was barred by the statute of limitations. That same day, Panco Construction, Inc. filed a Motion for Summary Judgment alleging that because Molina’s complaint was barred by the statute of limitations, Panco Construction, Inc. was entitled to judgment as a matter of law. ¶10 On January 22, 2001, Molina filed his response to Panco Construction, Inc.’s Motion for Summary Judgment contending that his complaint is not barred by the three-year statute of limitations because, pursuant to § 25-5-103, MCA, a fictitiously named defendant is a party to the action from its commencement and the statute of limitations stops running as to the fictitious party on the date the original complaint is filed. Molina also contended that pursuant to Rule 15(c), M.R.Civ.P., an amended complaint relates back to the date of the original complaint when the amended complaint revolves around the same set of operative facts as the original pleading. ¶11 Also on January 22, 2001, Molina filed his Motion to Amend Complaint asking the District Court to rule that his November 8,2000 Amended Complaint sufficed to substitute Panco Construction, Inc. for John Doe I or, in the alternative, that the court grant Molina leave to file a second amended complaint substituting Panco Construction, Inc. for John Doe I. Molina subsequently moved to dismiss Panco, Inc. as a defendant. ¶12 Oral argument was held in the matter on May 11, 2001, at which time the District Court granted Molina’s request for supplemental briefing. After the filing of the supplemental briefs and after further oral argument, the District Court issued its Memorandum and Order on July 2, 2001, wherein the court granted Panco Construction, Inc.’s Motion for Summary Judgment. The court, however, did not rule on Molina’s January 22, 2001 Motion to Amend Complaint. ¶13 Molina appeals the District Court’s order granting Panco Construction, Inc.’s Motion for Summary Judgment. Standard of Review ¶14 Our standard of review in appeals from summary judgment rulings is de novo. Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶ 21, 993 P.2d 11, ¶ 21 (citing Motarie v. N. Mont. Joint Refuse Disposal (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). When we review a district court’s grant of summary judgment, we apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. Oliver, ¶ 21 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903). We set forth our inquiry in Bruner as follows: 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. Oliver, ¶ 21 (quoting Bruner, 272 Mont. at 264-65, 900 P.2d at 903). “Summary judgment is an extreme remedy which should never be substituted for a trial if a material factual controversy exists.” Montana Metal Buildings., Inc. v. Shapiro (1997), 283 Mont. 471, 474, 942 P.2d 694, 696 (Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 283, 927 P.2d 995, 997). Discussion ¶15 Did the District Court err in granting Panco Construction, Inc.’s Motion for Summary Judgment? ¶16 Molina argues that not only did the District Court err in granting Panco Construction, Inc.’s Motion for Summary Judgment, it erred in dismissing Molina’s complaint and in not allowing Molina to file a second amended complaint to substitute Panco Construction, Inc. for John Doe I. Molina contends that these errors occurred because the District Court failed to apply the provisions of Rule 4E(2), M.R.Civ.P., in conjunction with § 25-5-103, MCA, the fictitious name statute. ¶17 Molina also argues that the District Court erred by requiring Molina to comply with the notice provisions of the second sentence of Rule 15(c), M.R.Civ.P., the misnomer rule, and by requiring that a plaintiff must name one real defendant before the running of the statute of limitations and retain that defendant in an amended complaint in order to utilize the fictitious name statute. ¶18 First, Molina points out that the District Court compounded the problem in this case by incorrectly stating in its July 2, 2001 Memorandum and Order that at the first oral argument on May 11, 2001, the court had orally granted Molina’s “motion for leave to file an amended complaint naming defendant Panco Construction, Inc. and John Does I-III.” Molina claims that he never asked the court to allow him to file an amended complaint naming Panco Construction, Inc. and retaining John Does I through III as defendants because such a request would have been tantamount to asking the court to substitute Panco Construction, Inc. for Panco, Inc. in violation of the rule set out in Keller v. Stembridge Gun Rentals (1986), 221 Mont. 352, 719 P.2d 764. ¶19 In Keller, the plaintiff was injured when a gun exploded. Plaintiffs original complaint in that case named Ellis Rental a/k/a Ellis Mercantile as the provider of the gun and ABC Manufacturing as the fictitious defendant that manufactured the gun. Discovery revealed that Stembridge Gun Rentals was the actual supplier of the gun and not Ellis Rental. Plaintiff moved to amend his complaint to directly substitute Stembridge Gun Rentals for Ellis Rental asserting that Ellis Rental was a fictitious name for Stembridge Gun Rentals. Stembridge Gun Rentals moved for summary judgment arguing that the statute of limitations had run. The District Court ruled that the substitution of a completely new defendant creates a new cause of action, thus the court granted Stembridge’s motion and dismissed the case. ¶20 This Court determined in Keller that the designation of a fictitious party in the complaint related only to the unknown manufacturer and not to the supplier of the gun. Hence, we held that substitution of a completely new defendant creates a new cause of action and permitting such a procedure would undermine the policy upon which the statute of limitations is based. Keller, 221 Mont. at 355, 719 P.2d at 766 (citing LaForest v. Texaco, Inc. (1978), 179 Mont. 42, 46, 585 P.2d 1318, 1320). ¶21 In the case sub judice, Molina is correct that Keller would have controlled in relation to his Amended Complaint and that that complaint would have been barred by the statute of limitations since Panco Construction, Inc. would have been a new party. Consequently, rather than asking the District Court to substitute Panco Construction, Inc. for Panco, Inc., as the District Court assumed he had done, Molina argues that he asked the court, in his November 8,2000 motion, to rule that his first Amended Complaint sufficed to substitute Panco Construction, Inc. for John Doe I, or, in the alternative, to grant him leave to file a second amended complaint substituting Panco Construction, Inc. for John Doe I. Thus, Molina contends that Panco Construction, Inc. is not a new party to this action but a presently identified, formerly fictitiously named defendant and as such, Panco Construction, Inc. was a party from the filing of Molina’s original complaint. ¶22 Panco Construction, Inc. argues on the other hand, that Molina attempted to entirely replace a mistakenly named defendant with a correctly named defendant, thus Molina did not meet the notice requirements of Rule 15(c), M.R.Civ.P., which provides: Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. [Emphasis added.] However, Panco Construction, Inc. concerns itself only with Molina’s first Amended Complaint and all of the arguments in Panco Construction, Inc.’s response brief are based on Molina’s first Amended Complaint and the assumption that Molina was attempting to directly substitute Panco Construction, Inc. for Panco, Inc. As we have already noted, Molina’s first Amended Complaint would have been barred by the statute of limitations under Keller, since Panco Construction, Inc. would have been a new party. That is not the case, however, with Molina’s Motion to Amend Complaint wherein Molina requests leave of court to amend his complaint to substitute Panco Construction, Inc. for John Doe I, one of the fictitiously named defendants. ¶23 Nevertheless, Panco Construction, Inc. argues that because Molina was not ignorant of Panco Construction, Inc.’s name, Panco Construction, Inc. was not a fictitiously named defendant under §25-5-103, MCA, which provides: Suing a party by a fictitious name. When the plaintiff is ignorant of the name of the defendant, such defendant may be designated in any pleading or proceeding by any name; and when his true name is discovered, the pleadings or proceedings may be amended accordingly. Panco Construction, Inc. maintains that ignorance of the name of the defendant required for use of the fictitious name statute does not include ignorance that could be removed by mere inquiry or by reasonable diligence in determining the true identity of the defendant. Here, Panco Construction, Inc. points out that Molina was aware that the name of the company was “Panco” and that its headquarters were in Washington state. Panco Construction, Inc. alleges that reasonable diligence on Molina’s part would have led Molina to the true identity of the defendant in this case. ¶24 Molina argues that Panco Construction, Inc. raises for the first time on appeal the issue of whether a plaintiff must make reasonable inquiry to identify potential defendants as a condition of utilizing the fictitious name statute. Molina contends that this is not the law and that there is no factual record regarding Molina’s attempts to identify the correct defendant. Thus, Molina maintains that if it is determined that the statute requires that a plaintiff must make reasonable inquiry to identify potential defendants as a condition of utilizing the fictitious name statute, then the case must be remanded to the District Court for a hearing. ¶25 Similarly, Panco Construction, Inc. argues that Molina is precluded from arguing Rule 4E(2), M.R.Civ.P., on appeal because Molina did not raise that argument in the court below. Rule 4E, M.R.Civ.P., provides in pertinent part: Time limit for issuance and service of process. (1) A plaintiff shall have 3 years after filing a complaint to have a summons issued and accomplish service. Unless appearance has been made by the defendant(s), the court, upon motion or on its own initiative, shall dismiss an action without prejudice if a plaintiff fails to either have the summons issued or fails to accomplish service within 3 years from the date of the filing of a complaint. The plaintiff shall file the summons with the clerk of the court within 30 days after service, however, failure to do so shall not affect the validity of service or serve as a basis for dismissal of said action. (2) A plaintiff who names a fictitious defendant in the complaint, pursuant to 25-5-103, MCA, may amend the complaint to substitute a real defendant for the fictitious defendant within 3 years of filing the original complaint in the action. The 3 year time period set forth in subparagraph (1) of this rule for issuance and service begins to run, as to the newly identified defendant, from the date of the filing of the original complaint. [Emphasis added.] ¶26 While Panco Construction, Inc. is correct that Molina did not raise the applicability of Rule 4E(2), M.R.Civ.P.,. in the District Court, Molina did raise the applicability of Rule 41(e), M.R.Civ.P., in both his “Plaintiffs Response to Defendants’ Motion for Summary Judgment” filed in the District Court on January 22,2001, and his “Supplemental Brief Regarding Defendants’ Motion for Summary Judgment and Plaintiffs Motion to Amend Complaint” filed on May 25,2001. Neither the District Court, Panco Construction, Inc., or Molina recognized that Rule 41(e), M.R.Civ.P., had been replaced by Rule 4E, M.R.Civ.P., effective January 1, 2000. The time limit imposed by [Rule 4E(1) and (2), M.R.Civ.P.] shall apply to all lawsuits in which the original complaints were filed on or after January 1, 2000. The provisions of Rule 41(e), M.R.Civ.P., replaced by this rule, shall apply to all lawsuits in which the original complaint was filed before January 1, 2000. Rule 4E(3), M.R.Civ.P. Molina filed his complaint on July 27, 2000, thus Rule 4E(2), M.R.Civ.P., would apply and the District Court should have considered the application of Rule 4E(2), M.R.Civ.P., in this case. ¶27 Therefore, given the District Court’s incorrect assumption that it had already granted Molina’s “motion for leave to file an amended complaint naming defendant Panco Construction, Inc. and John Does I-III,” along with the District Court’s failure to rule on Molina’s Motion to Amend Complaint, we reverse the District Court’s order granting Panco Construction, Inc.’s Motion for Summary Judgment and we remand the case back to the District Court for consideration of Molina’s Motion to Amend Complaint in conjunction with Rule 4E(2), M.R.Civ.P., and the effect that Rule may or may not have on § 25-5-103, MCA, the fictitious name statute, and Rule 15(c), M.R.Civ.P., the misnomer rule, in relation to the facts of this case. ¶28 Reversed and remanded for further proceedings consistent with this Opinion. JUSTICES RICE, REGNIER and LEAPHART concur.
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JUSTICE REGNIER delivered the Opinion of the Court. ¶ 1 Somont Oil Company, Inc., Appellant/Cross-Respondent, filed suit against A & G Drilling, Inc., Cavalier Petroleum, Inc., A.G. Walls, also known as Joe Walls, John Walls, and Stewart Howell,'all doing business as C-W Joint Venture, also known as Cavalier-Walls Joint Venture, Respondents/Cross-Appellants (“C-W”), in the Ninth Judicial District Court, Toole County, to terminate certain oil and gas leases held by C-W. Following trial, the jury rendered a verdict in favor of CW. Somont appeals the judgment entered upon the jury verdict and certain pre-trial and post-trial rulings issued by the District Court. CW cross appeals the District Court’s award of attorney fees to Somont based on its determination that Somont had standing to prosecute this action. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. ¶2 The parties raise the following issues on appeal: ¶3 1. Did the District Court err when it concluded that Somont had standing to compel C-W’s release of certain oil and gas leases pursuant to § 82-1-202(1), MCA? ¶4 2. Did the District Court err when it allowed the jury to consider oil prices, economic considerations, and C-W’s financial condition in determining whether oil and gas leases had terminated due to a lack of production? BACKGROUND ¶5 In 1991, C-W purchased a number of oil and gas leases in the Kevin-Sunburst oil field in Toole County, Montana. Most of these leases were established in the 1920s for a specified number of years, i.e., the primary term. Consequently, the primary terms on these leases have long since expired. However, through various habendum clauses, the contracts provide for the leases’ extension of an indefinite secondary term. Pursuant to the habendum clauses, the lessee shall maintain a viable leasehold interest as long as the lessee produces oil and gas in paying quantities from said land. Therefore, following its 1991 purchase, C-W held its Kevin-Sunburst leasehold properties pursuant to the contingencies of the habendum clauses. ¶6 In late 1997, Somont offered to purchase a number of C-Ws Kevin-Sunburst leases. C-W subsequently declined Somont’s offer. Thereafter, on April 10, 1998, Somont informed C-W that it had acquired new leases from the Kevin-Sunburst lessors and that C-W’s leases had terminated due to a lack of production. Somont demanded that C-W execute lease releases on the properties. C-W refused to execute the releases and on May 20, 1998, Somont filed suit in the District Court to compel C-W’s execution of the releases. The District Court issued a temporary restraining order which precluded C-W from commencing any operations on the leasehold properties prior to a show cause hearing set for May 28, 1998. ¶7 Following the May 28, 1998, show cause hearing, the District Court determined that Somont had not acquired the lessors’ right to challenge or terminate C-W’s existing leases for failure of production. Therefore, the District Court denied Somont’s request for a preliminary injunction and vacated the temporary restraining order. Consequently, Somont obtained from the lessors an assignment of “any and all rights that [the lessors] may have to any and all claims and demands that any previous oil and gas lease on the subject property has expired, terminated or otherwise forfeited due to the cessation of production from the leased lands.” On June 12,1998, Somont filed an amended complaint referencing the assignments. Subsequently, C-W executed releases on twenty of its leases but refused to tender releases on eight of the Kevin-Sunburst leases. Therefore, the parties proceeded to trial on whether C-W’s eight remaining leases had terminated due to a cessation of production. ¶8 Prior to trial, the parties raised two issues which ultimately gave rise to this appeal. First, in opposing Somont’s motion for summary judgment, C-W insisted that Somont lacked standing to compel a release on five of the eight leases because Somont maintained no ownership interest in those leases. C-W conceded that Somont had standing to prosecute the remaining three because Somont owned some portion of those leases’ mineral estate. The District Court denied Somont’s motion for summary judgment but concluded that Somont did have standing to challenge all eight leases. ¶9 Second, Somont filed a motion in limine with the District Court to exclude evidence of oil and gas prices as a justification for C-W’s lack of production. Further, Somont proposed a jury instruction which stated the jury could not consider oil prices, economic considerations, or C-W’s financial condition in determining whether the lack of production was justifiable as a temporary cessation. The District Court denied Somont’s motion in limine, in regard to the oil and gas prices, and rejected its proposed jury instruction. On May 11, 1999, the case proceeded to trial. ¶10 At trial, Somont presented evidence indicating a lack of production from the eight oil and gas leases during a specified period of time, the accounting period, prescribed by the District Court. C-W argued that the lack of production was justified as a temporary cessation. Therefore, C-W maintained that the temporary cessation of production doctrine prevented the leases’ termination. C-W presented evidence of reduced oil prices, a deflated economy, and the company’s financial pressures as justification for the cessation. After presentation of all of the evidence, the District Court denied Somont’s motion for judgment as a matter of law and instructed the jury to consider “all surrounding circumstances” in determining whether C-W’s leases had terminated for lack of production. ¶11 On May 14,1999, the jury rendered a special verdict in favor of CW. In so doing, the jury found that none of the eight leases terminated due to a lack of production. The jury also determined that Somont wrongfully interfered with C-W’s contractual and business relationships with the lessors and awarded C-W approximately $10,500 in damages. On May 21, 1999, the District Court entered judgment on the jury verdict and ordered that a hearing be held on June 4, 1999, to consider some remaining issues. On June 2, 1999, Somont renewed its motion for judgment as a matter of law and, in the alternative, moved for a new trial. The District Court denied both requests. On September 2,1999, in its final order and judgment on the miscellaneous issues, the District Court ordered C-W to pay $30,867.50 in attorney fees which Somont incurred in contesting C-W’s standing challenge on the twenty conceded leases. The District Court also ordered Somont to pay $46,221.25 in attorney fees incurred by C-W in defending the action as it pertained to the eight leases. ¶12 On appeal, Somont argues the District Court erred in allowing the jury to consider oil prices, economic considerations, and C-W’s financial condition in determining whether the subject leases terminated due to a lack of production. Therefore, Somont appeals the District Court’s judgment on the jury verdict and order denying its motion for judgment as a matter of law. C-W cross-appeals on the issue of attorney fees, claiming Somont lacked standing to prosecute this action. ISSUE ONE ¶13 Did the District Court err when it concluded that Somont had standing to compel C-W’s release of certain oil and gas leases pursuant to § 82-1-202(1), MCA? ¶14 A district court’s ruling on standing is a conclusion of law. Rieman v. Anderson (1997), 282 Mont. 139, 144, 935 P.2d 1122, 1125. 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. ¶15 Of the eight leases contemplated herein, Somont owns a portion of three of the leases’ mineral estates. C-W concedes that Somont has standing to compel its release of those three oil and gas leases pursuant to § 82-1-202, MCA. However, C-W argues that Somont lacks standing to compel C-Ws release on the remaining five leases. ¶16 Section 82-1-202(1), MCA, provides: If the lessee or assignee thereof neglects or refuses to execute a release as provided by this part, the owner of the leased premises may sue in any court of competent jurisdiction to obtain the release, and in such action he also may recover from the lessee, his successor, or assigns the sum of $100 as damages, all costs, together with a reasonable attorney’s fee for preparing and prosecuting the suit, and any additional damages that the evidence in the case warrants. Prior to trial, the lessors of the five leases to which Somont owns no mineral estate assigned to Somont the right to sue C-W to compel CW’s release of its oil and gas leases. C-W insists that since Somont is not the owner of the leased premises, Somont lacks the requisite standing to compel C-W’s release pursuant to § 82-1-202, MCA. ¶17 Montana has long recognized the rule that rights arising from contracts between private individuals are assignable, and that non assignability is the exception. Winslow v. Dundom (1912), 46 Mont. 71, 82, 125 P. 136, 139. In the absence of a non-assignable clause, either party may generally make an assignment of rights under the contract. Forsythe v. Elkins (1985), 216 Mont. 108, 113, 700 P.2d 596, 599-600. Further, all that is required to constitute a “real party in interest,” for purposes of Rule 17(a), M.R.Civ.P., is that the party be vested with legal title. Montana Ass’n of Credit Management v. Hergert (1979), 181 Mont. 442, 449, 593 P.2d 1059, 1063. ¶18 Each of the original leases in question is a contract which provides for the assignment of rights. One of the rights associated with the oil and gas leases is the right to compel termination of a lessee’s interest. While the assignment of rights provisions vary somewhat in language, the prevailing effect is that “the privilege of assigning [the estáte] in whole or in part is expressly allowed.” As rights arising from contracts are freely assignable and the assignment vested legal title in Somont, we hold that the District Court did not err in determining that Somont had standing to compel C-W’s release of the leases in question. ISSUE TWO ¶19 Did the District Court err when it allowed the jury to consider oil prices, economic considerations, and C-W’s financial condition in determining whether oil and gas leases had terminated due to a lack of production? ¶20 A district court’s ruling on a motion in limine is an evidentiary ruling. Spinler v. Allen, 1999 MT 160, ¶ 29, 295 Mont. 139, ¶ 29, 983 P.2d 348, ¶ 29. A district court has broad discretion in determining whether evidence is relevant and admissible and we will not overturn its determination absent an abuse of that discretion. Spinier, ¶ 29. ¶21 Further, a district court has broad discretion regarding the instructions it gives or refuses to give to a jury. Schumacher v. Stephens, 1998 MT 58, ¶ 21, 288 Mont. 115, ¶ 21, 956 P.2d 76, ¶ 21. We will not reverse a district court on the basis of its instructions absent an abuse of that discretion. Schumacher, ¶ 21. When we examine whether particular jury instructions were properly given or refused, we must consider the instructions in their entirety and in connection with the other instructions given and with the evidence introduced at trial. Schumacher, ¶ 22. The party assigning error to the trial court’s instructions must show prejudice in order to prevail. Schumacher, ¶ 22. Prejudice will not be found if the jury instructions in their entirety state the applicable law of the case. Schumacher, ¶ 22. ¶22 Prior to trial, Somont filed a motion in limine seeking to exclude evidence of oil and gas prices as a justification for C-W’s cessation of production. The District Court denied Somont’s motion in limine as it pertained to oil and gas prices. Soon thereafter, Somont submitted its proposed jury instructions to the District Court. Somont’s proposed instructions contained the following directives: 18. The fact that oil prices may be low; the cessation of production is for economic reasons or because the operators are in poor financial condition cannot form the basis for a justifiable temporary cessation of production. 19. Poor condition of the oil market and/or low quality of oil although rendering the well unprofitable to operate does not prevent an automatic termination of the lease when production ceases. The District Court rejected the above proposed instructions and instead instructed the jury as follows: 16. A lease continues in existence so long as interruption of production in paying quantities does not extend for a period longer than reasonable or justifiable in light of all the circumstances involved. 17. A lease is not terminated for failure to produce the moment production stops, nor does it terminate the instant production falls below a profitable level. All surrounding circumstances must be taken into consideration before cancellation may be decreed. Therefore, the jury was allowed to consider testimony regarding fluctuations in oil prices, economic concerns, and C-W’s financial instability in determining whether C-W’s lack of production was justified. ¶23 Somont argues that the District Court abused its discretion when it denied Somont’s motion in limine and failed to exclude oil and gas prices, economic factors, and C-W’s financial condition from the jury’s consideration. Somont contends that this abuse in discretion sufficiently prejudiced Somont to warrant a reversal of the District Court’s judgment upon the jury verdict. We agree. ¶24 All of the oil and gas leases subject to this litigation contain a habendum clause fixing the ultimate duration of the lessee’s interest. Oil and gas habendum clauses generally consist of two parts, the primary term, which establishes a definite period, and the secondary term which is of indefinite duration. Robert E. Sullivan, Handbook of Oil and Gas Law § 40 (1955). The clause obligates the lessee to maintain production on the premises and pay a royalty to the lessor. The clause also provides that if the lessee fails to produce oil and gas within the primary term, the lease will automatically terminate at the end of the primary term. If the lessee maintains production throughout the primary term, the lease will terminate thereafter upon the cessation of production. See McCullough Oil, Inc. v. Rezek (W. Va. 1986), 346 S.E.2d 788, 793. ¶25 Once the lease transitions into the secondary term, jurisdictions vary as to what circumstances will precipitate termination of the lease upon the cessation of production. This jurisdictional dichotomy has been described as follows: In a number of the producing states the courts treat termination of a lease as involving a cancellation or forfeiture in equity. In these states where production has ceased or is no longer deemed to be in paying quantities, cancellation of the lease will not be decreed where, in view of relevant circumstances, such decree would be unreasonable. In Texas and several other jurisdictions termination of a lease under the habendum clause is treated as a determinable limitation on the lessee’s estate. A cessation of production results in automatic termination except in those cases where the cessation is deemed ‘temporary.’ Richard W. Hemingway, Law of Oil and Gas § 6.4(B) (3d ed. 1991). ¶26 Montana is an ownership-in-place state with regard to oil, gas and other minerals. Voyta v. Clonts (1958), 134 Mont. 156, 162, 328 P.2d 655, 659. Essentially, this means oil and gas leases transfer to the lessee a fee simple determinable estate with the lessor retaining a possibility of reverter. See Krutzfeld v. Stevenson (1930), 86 Mont. 463, 476-77, 284 P. 553, 556. Therefore, upon the occurrence of a stated event, the lessee’s interest automatically terminates. See Berthelote v. Loy Oil Co. (1933), 95 Mont. 434, 447, 28 P.2d 187, 191. Here, as in most oil and gas leases operating pursuant to the conditions of the secondary term, the event triggering automatic termination is the cessation of production in paying quantities. See Berthelote, 95 Mont. at 448, 28 P.2d at 191. ¶27 This Court has defined paying quantities as the amount of production which would pay a small profit over the cost of operation of the well, excluding from consideration the initial cost of bringing the well into production. Berthelote, 95 Mont. at 448, 28 P.2d at 191. Therefore, by paying quantities’ very definition, the finder of fact must necessarily consider income generated from the property and the expenses incurred in its operation, thus implicating economic influences. See Eugene Kuntz, Oil and Gas § 26.7(d) (1987). In Christian v. A.A. Oil Corp. (1973), 161 Mont. 420, 506 P.2d 1369, this Court articulated the test to determine whether production in paying quantities has ceased. We stated: The test for determining whether there was sufficient production or whether the lessee was acting with reasonable diligence in producing and marketing the gas from the leased lands is the diligence which would be exercised by the ordinary prudent operator having regard to the interests of both lessor and lessee. This is a question of fact that will depend upon the facts and circumstances of each case. Christian, 161 Mont. at 427-28, 506 P.2d at 1373 (citations omitted). Thus, an oil and gas lease which fails to produce in paying quantities terminates upon cessation. ¶28 However, in an effort to mitigate against the harshness of the automatic termination rule, courts developed the temporary cessation of production doctrine. Pursuant to this doctrine, once a plaintiff establishes that an oil and gas lease has halted production, the burden shifts to the defendant to prove that the cessation was temporary and not permanent. See Eichman v. Leavell Resources Corp. (Kan. Ct. App. 1994), 876 P.2d 171, 174. A temporary cessation in production will not trigger an automatic termination of the lease as contemplated in the habendum clause. Kuntz, § 26.8(d). There is some dispute between Somont, C-W, and Amicus Curiae as to whether Montana has adopted the temporary cessation of production doctrine, and, if so, to what extent. Therefore, to clarify any ambiguity, we hereby adopt the temporary cessation of production doctrine as it applies to the oil and gas arena. ¶29 Most jurisdictions, in determining whether a cessation of production is temporary or permanent, consider the cause of the cessation, the time reasonably required to restore production, and the diligence exercised by the lessee in restoring production. Kuntz, § 26.8(e). What constitutes a reasonable time and diligence will depend on the particular facts presented. See Cobb v. Natural Gas Pipeline Co. of Am. (5th Cir. 1990), 897 F.2d 1307, 1309. However, jurisdictions vary significantly on which causes contributing to the cessation may be considered in the temporary cessation of production analysis. Those jurisdictions which treat termination as a cancellation or forfeiture in equity generally hold that “the lease continues in force unless the period of cessation, viewed in the light of all the circumstances, is for an unreasonable time.” See, e.g., Cotner v. Warren (Okla. 1958), 330 P.2d 217, 219 (emphasis added). Conversely, ownership-in-place jurisdictions generally limit temporary cessations to mechanical or production breakdowns. See Hemingway, § 6.4(B). ¶30 Here, Somont established at trial that the leases failed to produce in paying quantities during the accounting period prescribed by the District Court. At that point the Christian analysis, implicating economic factors, concluded. In turn, C-W asserted that the failure to produce in paying quantities was justified as a temporary cessation. The parties argued to the District Court the circumstances which the finder of fact may consider in evaluating whether the cessation was temporary. The District Court agreed with C-W that the jury should consider “all surrounding circumstances,” which, in this case, included oil prices, economic concerns, and C-W’s financial condition. Somont insists the District Court erred in its ruling and urges this Court to follow other ownership-in-place jurisdictions’ treatment of the temporary cessation of production doctrine. Texas is one such ownership-in-place jurisdiction and we are inclined to follow its lead on this issue. ¶31 In Watson v. Rochmill (Tex. 1941), 155 S.W.2d 783, the lessee of an oil and gas lease ceased oil production due to the depressed market for low gravity oil. The lessor filed suit for a judgment declaring the lease terminated. The lessee insisted that the temporary cessation of production doctrine precluded termination of the lease. The Supreme Court of Texas concluded that to prevent termination of the lease pursuant to the temporary cessation of production doctrine, the cessation must be “due toja] sudden stoppage of the well or some mechanical breakdown of the equipment used in connection therewith, or the like.” Watson, 155 S.W.2d at 784. Therefore, the court held that the lease had terminated because the oil market did not prevent operation of the well. Watson, 155 S.W.2d at 784. ¶32 Adopting Texas’s narrow temporary cessation of production test comports with the principles in Montana that: (1) oil and gas leases are to be construed liberally in favor of the lessor and strictly against the lessee; and (2) while forfeitures are usually not favored in the law, due to the peculiar nature of oil and gas leases, forfeitures are here favored. Christian, 161 Mont. at 425, 506 P.2d 1369. Further, Texas’s temporary cessation of production standard properly balances the interests of the lessor and lessee. The diligent lessee who takes immediate steps to rectify a sudden halt in production will not lose his or her investment. Similarly, a lessee’s self-serving voluntary cessation will not subordinate the lessor’s interest in generating income via production. See Bruce M. Kramer, The Temporary Cessation Doctrine: A Practical Response to an Ideological Dilemma, 43 Baylor L. Rev. 519, 549 (1991). ¶33 In summary, actions commenced to terminate oil and gas leases invoke two distinct inquiries: (1) Is the lease producing in paying quantities?; and (2) If not, was the cessation in production permanent or temporary? As to production in paying quantities, economic considerations are absolutely relevant. However, those very economic considerations should not factor into the temporary versus permanent cessation analysis. A cessation in production will only be deemed temporary when it is caused by a sudden stoppage of the well or a mechanical breakdown of the equipment used in connection with the well, or the like. ¶34 We disagree with Justice Trieweiler’s characterization of Stimson v. Tarrant (9th Cir. 1943), 132 F.2d 363. It is true that, in Stimson, the Ninth Circuit declined to terminate an oil lease when the well ceased production due to the lack of market. However, the analysis in Stimson focused solely on the first prong of the two-part test articulated above. In effect, the Ninth Circuit held that a genuine lack of market will not compel termination of an oil lease when the well is fully capable of producing in paying quantities. In other words, if there is a lack of market; if the lease is capable of producing in paying quantities; and if the lessee is using reasonable diligence to market the product, Montana law will deem the lease as one which is “producing in paying quantities” and never reach the temporary cessation of production issue. ¶35 The concepts discussed in Stimson were later reiterated in Christian, as alluded above. Our holding today has done nothing to disturb the principles discussed in Stimson and Christian. The equitable notions contemplated therein remain valid considerations but apply only to the “producing in paying quantities” prong of the two-part test. Once it is determined that a lease is not producing in paying quantities, the analysis shifts to the temporary cessation of production prong where the equitable principles no longer factor into the equation. As such, the specific evidence referenced by Justice Cotter maintains no relevance to the inquiry implicated herein and the jury should not have been instructed to consider it. ¶36 Accordingly, we hold that the District Court abused its discretion in allowing the jury to consider oil prices, economic considerations, and C-W’s financial condition in determining whether C-W’s cessation was justified as temporary. Further, the District Court’s abuse in discretion sufficiently prejudiced Somont to warrant a new trial. ¶37 Somont insists it is entitled to judgment as a matter of law. Somont urges this Court to remand the matter to the District Court for an entry of judgment in favor of Somont. We decline to do so. ¶38 The standard of review in appeals from a judgment notwithstanding the verdict made pursuant to Rule 50(b), M.R.Civ.P., is the same as that for review of a motion for a directed verdict, and a directed verdict may be granted only where it appears as a matter of law that a party could not prevail upon any view of the evidence including the legitimate inferences to be drawn therefrom. Ryan v. City of Bozeman (1996), 279 Mont. 507, 510, 928 P.2d 228, 229. An implicit precursor to the “any view of the evidence” language is the requisite presentation of evidence. Here, C-W presented its evidence under a misinformed standard. C-W has not yet had an opportunity to present its evidence in accordance with the temporary cessation of production factors adopted herein. It would be premature to say that C-W cannot prevail on any view of the evidence. Therefore, we decline Somont’s invitation to remand this case for an entry of judgment in its favor. ¶39 Finally, following the jury verdict, the District Court awarded attorney fees in the amount of $30,867.50 to Somont and $46,221.25 to C-W pursuant to § 82-1-202(1), MCA. Section 82-1-202(1), MCA, does permit the prevailing party to recover reasonable attorney fees incurred in prosecuting or defending the action. However, in light of our holding, the District Court will have to reconsider the attorney fee issue following the disposition of this case on remand. ¶40 Reversed and remanded for a new trial. CHIEF JUSTICE GRAY, JUSTICES LEAPHART and RICE and DISTRICT COURT JUDGE SIMONTON sitting for JUSTICE NELSON concur. While the “forfeiture” terminology is semantically incorrect for ownership-in-place jurisdictions, the principle espoused in the statement remains sound in Montana jurisprudence.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 Who owns a ring given in anticipation of marriage after the engagement is broken? Michelle L. Harris (Harris) appeals the disposition of an engagement ring by the Eighth Judicial District Court, Cascade County, Montana, and Michael A. Albinger (Albinger) cross-appeals the denial of reimbursement for certain telephone charges incurred by Harris and the award of damages for a prior, unlitigated assault and battery claim. We reverse the disposition of the engagement ring, affirm the denial of reimbursement for telephone charges and affirm the award for pain, suffering and emotional distress. ¶2 We frame the issues on appeal as follows: ¶3 1. Did the District Court err in determining an engagement ring is a conditional gift that may be revoked upon termination of the engagement? ¶4 2. Did the District Court err in denying Albinger reimbursement for telephone charges incurred by Harris during cohabitation? ¶5 3. Did the District Court err in awarding Harris compensation for general damages resulting from an assault and battery by Albinger? FACTUAL AND PROCEDURAL BACKGROUND ¶6 Harris and Albinger met in June 1995, and began a troubled relationship that endured for the next three years, spiked by alcohol abuse, emotional turmoil and violence. Albinger presented Harris with a diamond ring and diamond earrings on December 14,1995. The ring was purchased for $29,000. Days after accepting the ring, Harris returned it to Albinger and traveled to Kentucky for the holidays. Albinger immediately sent the ring back to Harris by mail. The couple set a tentative wedding date of June 27,1997, but plans to marry were put on hold as Harris and Albinger separated and reconciled several times. The ring was returned to or reclaimed by Albinger upon each separation, and was re-presented to Harris after each reconciliation. ¶7 Albinger and Harris lived together in Albinger’s home from August 1995 until April 1998. During this time, Albinger conferred upon Harris a new Ford Mustang convertible, a horse and a dog, in addition to the earrings and ring. Harris gave Albinger a Winchester hunting rifle, a necklace and a number of other small gifts. Albinger received a substantial jury award for injuries sustained in a 1991 railroad accident. He paid all household expenses and neither party was gainfully employed during their cohabitation. ¶8 On the night of February 23, 1997, during one of the couple’s many separations, Albinger broke into the house where Harris was staying. He stood over Harris’ bed, threatened her with a knife and shouted, “I’m going to chop your finger off, you better get that ring off.” After severely beating Harris with a railroad lantern, Albinger forcibly removed the ring and departed. Harris sued for personal injuries and the county attorney charged Albinger by information with aggravated burglary, felony assault, and partner and family member assault. The next month, after another reconciliation, Harris requested the county attorney drop all criminal charges in exchange for Albinger’s promise to seek anger management counseling and to pay restitution in the form of Harris’ medical expenses and repair costs for damage to her friend’s back door. Harris also directed her attorney to request the court dismiss the civil complaint without prejudice. ¶9 The parties separated again in late April 1998. Albinger told Harris to “take the car, the horse, the dog, and the ring and get the hell out.” During their last month together, Harris ran up approximately $1,000 in telephone charges on Albinger’s credit card. Harris had been free to use Albinger’s telephone throughout the relationship, and Albinger paid the bills. Harris moved from Great Falls, Montana to Kentucky, where she now resides. The parties dispute who was responsible for the end of the relationship. No reconciliation followed, marriage plans evaporated and Harris refused to return the ring. ¶10 Albinger filed a complaint on August 31, 1998, seeking recovery of the ring or its monetary value and payment for $1,000 in telephone charges. Harris counterclaimed for damages resulting from the assault of February 23, 1997. ¶11 At the conclusion of the trial, both parties submitted briefs discussing how the statute barring actions for breach of promise to marry, § 27-1-602, MCA, impacts an action to recover an engagement ring. The District Court found the ring to be a gift in contemplation of marriage, and reasoned that § 27-1-602, MCA, did not bar the action because the case could be decided on common-law principles, as opposed to contract theories. The court implied the existence of a condition attached to the gift of the engagement ring. Disregarding allegations of fault for “breaking” the engagement, the court concluded that the giver is entitled to the return of the ring upon failure of the condition of marriage. ¶12 On September 2, 1999, the District Court awarded the engagement ring or its reasonable value and court costs to Albinger, and denied recovery for the telephone charges. Harris was awarded $2500 for pain, suffering and emotional distress. From this judgment, Harris appeals the disposition of the ring and Albinger cross-appeals the denial of telephone charges and the award of damages to Harris. STANDARD OF REVIEW ¶13 In reviewing a district court’s findings of fact, we determine whether the findings are clearly erroneous. In re Marriage of Griffin (1996), 275 Mont. 37, 44, 909 P.2d 707, 711. The three-part test we use to determine whether findings are clearly erroneous in anon-jury case provides that: (1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the district court has misapprehended the evidence; and (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is “clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed.” Griffin, 275 Mont. at 44, 909 P.2d at 711-12 (citing DeSaye v. Interstate Production Credit Assn. (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. In re Estate of Kuralt, 2000 MT 359, ¶ 14, 303 Mont. 335, ¶ 14, 15 P.3d 931, ¶ 14. Issue 1. ¶14 Did the District Court err in determining an engagement ring is a conditional gift that may be revoked upon termination of the engagement? ¶15 Albinger and Harris gave one another numerous gifts of substantial value during their engagement. The ring is the only item now in controversy. When this Court was last presented with the question whether an antenuptial transfer of jewelry from fiancé to fiancée, which included an engagement ring, constituted consideration for the mutual promise of marriage or was an unconditional gift, we remanded the case for a new trial and factual findings on the matter. Davidson v. Stagg (1933), 94 Mont. 272, 278, 22 P.2d 152, 154. In the instant case, the parties agree that the ring was a gift. The crux of the dispute today is whether a condition of marriage attached to the gift as a matter of law at the time Albinger presented the ring to Harris. ¶16 Harris contends the ring lost any association with a promise to marry after the first incidence of domestic violence. The couple canceled their June 1997 nuptials and never revived explicit wedding plans. In response to a question about the ring’s symbolic relationship to a promise to marry after the couple’s numerous break-ups, reconciliations, and incidents of domestic violence, Harris testified, “[AJfter a while you don’t think about that stuff. You just resume life.” Albinger argues that the ring was presented as a gift only upon the unspoken condition that the wedding take place. ¶17 The District Court found the ring at issue in this action to be an engagement ring given in contemplation of marriage, and not a gift in commemoration of another occasion or as consideration for any other anticipated acts on the part of Harris. The court noted Albinger proposed marriage to Harris on December 14,1995, and presented her with the ring at that time. Harris accepted both the marriage proposal and the ring. Although the ring was reclaimed by or returned to Albinger numerous times during the ensuing years, both Albinger and Harris referred to the ring as an “engagement ring” with some consistency. We conclude that the court’s characterization of the disputed gift as an engagement ring is supported by substantial evidence and is not clearly erroneous. ¶18 Legal ownership of the gift of an engagement ring when marriage plans are called off is an issue of first impression in Montana. In 1963, the Legislature barred access to the courts for actions arising from breach of the promise to marry. Sec. 2, Chap. 200, L. 1963. The District Court determined that this action brought to recover an antenuptial gift is maintainable, notwithstanding § 27-1-602, MCA, which states: All causes of action for breach of contract to marry are hereby abolished. However, where a plaintiff has suffered actual damage due to fraud or deceit or a defendant has been unjustly enriched, the plaintiff may maintain an action for fraud or deceit or unjust enrichment and recover therein only the actual damage proved or for the benefit wrongfully obtained or restitution of property wrongfully withheld where such action otherwise is maintainable under existing law. ¶19 According to the District Court’s analysis, the statute goes no further than to bar actions for general damages sustained by the loss of marriage such as humiliation, lost opportunities, emotional suffering and other non-specific consequences of the breach. We agree with the court’s conclusion that the rights and duties of the parties regarding property exchanged “in contemplation of marriage” are still determined by existing law and common-law principles. ¶20 The District Court presents a cogent summary of common-law principles applied to antenuptial gift disputes in the wake of the abolition of breach of promise actions. Section 27-1-602, MCA, specifically preserves actions based upon fraud, deceit or unjust enrichment. Albinger levels no accusations of fraud or deceit, but nevertheless claims Harris is unjustly enriched by the value of the engagement ring. ¶21 The doctrine of unjust enrichment is an equitable means of preventing one party from benefitting by his or her wrongful acts, and, as such requires a showing of misconduct or fault to recover. Sebena v. State (1994), 267 Mont. 359, 367, 883 P.2d 1263, 1268 (citing Randolph v. Peterson, Inc. (1989), 239 Mont. 1, 8, 778 P.2d 879, 883). Albinger argues that the engagement ring was a conditional gift that he could revoke when the implied condition of marriage failed. Hence, Harris’ refusal to return the ring upon demand constituted unjust enrichment. Harris contends she deserves the ring because Albinger repeatedly beat her, forcibly took the ring back, and was the one who finally ended the engagement by ordering Harris to move out of the residence where they had been living together. ¶22 The District Court declined to undertake a determination of which party was at fault in terminating the engagement. The court cited the following three reasons: 1) judicial holdings that fault is an inappropriate concern in matters of family relations; 2) pragmatic difficulties in discerning fault when the conduct of both parties likely contributes to the failure of a relationship; and, 3) aversion to concepts of legal “rightness” and “wrongness” regarding the choice of a marriage partner. We agree, and affirm that judicial fault-finding is irrelevant and immaterial in the adjudication of matters of antenuptial gifting under existing law, absent fraud or deceit. ¶23 The District Court employed the “conditional gift” theory advanced by Albinger to determine present ownership of the disputed engagement ring. The theory holds that an implied condition of marriage attaches to the gift of a ring upon initial delivery due to the ring’s symbolic association with the promise to marry and, when the condition of marriage fails, the incomplete gift may be revoked by the giver. Albinger urges this Court to affirm the District Court’s conclusion that the ownership of an engagement ring remains with the one who gave the ring when plans to marry are called off. ¶24 Only in engagement ring cases does precedent from other jurisdictions weigh heavily for conditional gift theory in the absence of an expressed condition. See collected cases, Elaine Marie Tomko, Annotation, Rights in Respect of Engagement and Courtship Presents when the Marriage Does Not Ensue (1996), 44 A.L.R. 5th 1. See also Benassi v. Back & Neck Pain Clinic, Inc. (Minn. 2001), 629 N.W.2d 475; Meyer v. Mitnick (Mich. 2001), 625 N.W.2d 136; Lindh v. Surman (Penn. 1999), 742 A.2d 643; Heiman v. Parrish (Kan. 1997), 942 P.2d 631; Vigil v. Haber (N.M. 1994), 888 P.2d 455. Considering it “unduly harsh and unnecessary” to require a hopeful suitor to express any condition upon which a ring might be premised, many courts stepped in to impute the condition of marriage. Fierro v. Hoel (Iowa 1990), 465 N.W.2d 669, 671. In practice, courts presume the existence of the implied condition of marriage attaching to an engagement ring in the absence of an expressed intent to the contrary. Fanning v. Iverson (S.D. 1995), 535 N.W.2d 770; Brown v. Thomas (Wis. 1985), 379 N.W.2d 868; Lyle v. Durham (Ohio 1984), 473 N.E.2d 1216. A party meets the burden of establishing the conditional nature of the gift by proving by a preponderance of the evidence that the ring was given in contemplation of marriage. Fierro, 465 N.W.2d at 671. “Not only does this rule of law establish a “bright line’ for situations where the parties involved are unlikely to have considered the necessity of making an ‘agreement to the contrary,’ but the rule also eliminates the need for a trial court to attempt the often impossible task of determining which, if either, party is at fault.” McIntire v. Raukhorst (Ohio 1989), 585 N.E.2d 456, 458. ¶25 Since the issue of ring ownership when the engagement ends without marriage is a matter of first impression, we will briefly review early breach of promise jurisprudence, look to some American customs associated with engagement rings, analyze the judicial imputation of a condition in the context of Montana gift law, and examine conditional gift theory in light of the constitutional prohibition against gender bias. Abolition of Breach of Promise Actions ¶26 Historic breach of promise jurisprudence tended to view an engagement ring as either a pledge of personal property given to secure a marital promise or as consideration for the contract of marriage. See 44 A.L.R. 5th 1, §§ 8 and 9. When a contract to marry was abrogated, the jilted lover could seek redress in a breach of promise action that sounded in contract law, but availed the plaintiff of tort damages. “The law allows punitive or vindictive damages to be assessed by the jury; and all the circumstances attending the breach before, at the time, and after may be given in evidence in aggravation of damages.” Dupont v. McAdow (1886), 6 Mont. 226, 232, 9 P. 925, 928. The plaintiffs were almost invariably women seeking economic relief for themselves, compensation for pregnancy and material support for children of the relationship. Whatever “heart balm” was awarded to assuage lost love, ruined reputation or foreclosed opportunities to marry well “rest[ed] in the sound discretion of the jury.” Section 8685, ROM (1935). ¶27 By the mid-1930's, several state legislatures questioned the efficacy of court “interference with domestic relations” and passed statutes barring actions for breach of promise to marry, alienation of affections, criminal conversation and other inappropriate conduct of the “private realm.” See Rebecca Rushnet, Rules of Engagement (1998), 107 Yale Law Review 2583, 2586-91. Commentators noted all of these actions “afforded a fertile field for blackmail and extortion by means of manufactured suits in which the threat of publicity is used to force a settlement.” W. Page Keeton et alProsser and Keeton on the Law of Torts (5th ed. 1984) § 124 at 929. “There is good reason to believe that even genuine actions of this type are brought more frequently than not with purely mercenary or vindictive motives [and] that it is impossible to compensate for such damage with what has derisively been called ‘heart balm.’ ” Prosser and Keeton, §124 at 929. ¶28 In the wake of “anti-heart balm” statutes that barred breach of contract to marry actions, courts heard a plethora of legal theories designed to involve them in settling antenuptial property disputes while avoiding the language of contract law. The results were mixed. Some courts allowed actions in replevin. See Vann v. Vehrs (Ill. 2d Dist. 1994), 633 N.E.2d 102 (to reclaim property which the other party allegedly no longer has a right to possess). Others entertained claims for restitution and unjust enrichment. See Wilson v. Dabo (Ohio 1983), 461 N.E.2d 8 (to reclaim property transferred in reliance upon the promise to marry when the donor was the “non-breaching party”). Out of this legal morass, conditional gift analysis emerged as a popular way to resolve acrimonious engagement ring disputes. While some states pursue a fault-based determination for awarding the ring in equity, the modern wave aligns ring disposition with no-fault divorce property disposition and follows a bright-line rule of ring return. Engagement Ring Symbology ¶29 The custom of giving expensive engagement rings is largely a mid-to late 20th Century phenomenon. Margaret F. Brinig, Rings and Promises (1990), 6 J.L. Econ. & Org. 203, 209. Nineteenth Century etiquette books struggled to identify proper gifts between men and women. Viviana A. Ziegler, The Social Meaning of Money (1994). Expensive or excessively intimate gifts, such as jewelry or wearing apparel, were fit for a kept woman, or perhaps a man’s wife, but not as tokens of respectable courtship. Ziegler, at 99. Upper class men and women occasionally exchanged diamond rings as gifts during the 19th Century. Ziegler, at 99. The six-prong gold or platinum setting holding a raised, brilliant-cut diamond, which has become the classic engagement ring style, was created by Tiffany’s in the 1870s. Anne Ward et al., Rings Through the Ages (1981), at 198. DeBeers’ launched its national advertising campaign in 1939 that promised: “A diamond is forever.” Brinig, at 206. To cultivate a no-return custom in America, the cartel threatened to cut off supply to dealers who bought diamonds back from purchasers. Brinig, at 209. An interesting correlation exists between the mid-20th Century increase in demand for costly diamond engagement rings and the statutory changes by state legislatures to abolish the breach of promise action. Brinig, at 206. After the Second World War, expensive rings became not just symbols of love, but tangible economic commitments in themselves, and appear to have gained significance as other economic incidents of marriage were in flux. See Reva B. Siegel, Modernization of Marital Status Law: Adjudicating Wives Rights to Earnings, 1860-1930 (1994), 82 Geo. L.J. 2127, 2201-03. As courts closed to women seeking damages for breach of the promise to marry, the cost and the practice of giving engagement rings rose dramatically. Brinig, at 209. By the time Montana barred the breach of promise action, diamonds constituted over 80% of engagement ring sales. Brinig, at 205. Through the late 20th Century, rings remained personal tokens of affection; many couples who spurned the conventions of marriage still wore rings to bear witness to their union. Ward, at 146. Since 1980, however, engagement rings never exceeded 20% of diamond jewelry sales. Brinig, at 212. ¶30 This Court acknowledges the customary practice of presenting an engagement ring in conjunction with a promise to marry and we next examine the legal significance of that symbolic association in the context of Montana gift law. Conditional Gift Theory ¶31 According to Montana law, “a gift is a transfer of personal property made voluntarily and without consideration.” Section 70-3-101, MCA. The essential elements of an inter vivos gift are donative intent, voluntary delivery and acceptance by the recipient. Marens v. Newland (1962), 141 Mont. 32, 39, 374 P.2d 721, 724 (citing O’Neil v. First Nat. Bank of Billings (1911), 43 Mont. 505, 511, 117 P. 889, 890). Delivery, which manifests the intent of the giver, must turn over dominion and control of the property to the recipient. In re Brown’s Estate (1949), 122 Mont. 451, 459, 206 P.2d 816, 821. Such a gift, made without condition, becomes irrevocable upon acceptance. Marens, 141 Mont. at 36, 374 P.2d at 723; Fender v. Foust (1928), 82 Mont. 73, 78, 265 P. 15, 16; O’Neil v. First Nat. Bank of Billings (1911), 43 Mont. 505, 511, 117 P. 889, 890. When clear and convincing evidence demonstrates the presence of the essential elements of donative intent, voluntary delivery and acceptance, the gift is complete and this Corut will not void the transfer when the giver experiences a change of heart. See Gross v. Gross (1989), 239 Mont. 480, 781 P.2d 284 (father barred from revoking a gift of real property transferred to his son). ¶32 Another essential element of a gift is that it is given without consideration. Section 70-3-101, MCA. A purported “gift” that is part of the inducement for “an agreement to do or not to do a certain thing,” becomes the consideration essential to contract formation. Sections 28-2-101 and 28-2-102, MCA. An exchange of promises creates a contract to marry, albeit an unenforceable one. Section27-l-412(2),MCA. When an engagement ring is given as consideration for the promise to marry, a contract is formed and legal action to recover the ring is barred by the abolition of the breach of promise actions. Section 27-1-602, MCA. ¶33 The only revocable gift recognized by Montana law is a gift in view of death. See §§ 70-3-201, et. seq., MCA. Also known as a gift causa mortis, such a gift is subject to the following conditions: 1) it must be made in contemplation, fear or peril of death; 2) the giver must die of the illness or peril that he or she fears or contemplates; and 3) the delivery must be made with the intent that the gift will only take effect if the giver actually dies. Section 70-3-201, MCA; Nelson v. Wilson (1928), 81 Mont. 560, 570, 264 P. 679, 682; O’Neil, 43 Mont. at 511, 117 P. at 890. Statutory law provides that a gift in view of death may be revoked by the giver at any time and is revoked by the giver’s recovery from the illness or escape from the peril under which the gift was made. Section 70-3-203, MCA. ¶34 Albinger maintains he held a reversionary interest in the gift of the engagement ring grounded in an implied condition subsequent. Montana law recognizes the transfer of personal property subject to an express or implied condition which must be satisfied before title vests, as either a contract, § 28-1-405, MCA, or as a gift in view of death, §§ 70-3-201, et. seq., MCA. Since actions stemming from breach of the contract to marry are barred by our “anti-heart balm” statute, Albinger urges the Court to adopt a conditional gift theory patterned on the law relevant to a gift in view of death. Under Montana law, no gift is revocable after acceptance except a gift in view of death. While some may find marriage to be the end of life as one knows it, we are reluctant to analogize gifts in contemplation of marriage with a gift in contemplation of death. This Court declines the invitation to create a new category of gifting by judicial fiat. Gender Bias ¶35 Article II, Section 4 of the Montana Constitution recognizes and guarantees the individual dignity of each human being without regard to gender. This Court and the Montana State Bar have recognized the harm caused by gender bias and sexual stereotyping in the jurisprudence and courtroom of this state. In the Matter of the State Bar of Montana’s Gender Fairness Steering Committee, No. 90-231 (1990) (Petition and Order); In re Marriage of Davies (1994), 266 Mont. 466, 480-82, 880 P.2d 1368, 1378 (Nelson, J., concurring). In its Petition to the Supreme Court, the State Bar of Montana’s Gender Fairness Steering Committee listed four forms of gender bias: a) denying rights or burdening people with responsibilities solely on the basis of gender; b) subjecting people to stereotypes about the proper behavior of men and women which ignore their individual situations; c) treating people differently on the basis of gender in situations in which gender should be irrelevant; and d) subjecting men or women as a group to a legal rule, policy, or practice which produces worse results for one group than the other. ¶36 The Montana Legislature made the social policy decision to relieve courts of the duty of regulating engagements by barring actions for breach of promise. While not explicitly denying access to the courts on the basis of gender, the “anti-heart balm” statutes closed courtrooms across the nation to female plaintiffs seeking damages for antenuptial pregnancy, ruined reputation, lost love and economic insecurity. During the mid-20th Century, some courts continued to entertain suits in equity for antenuptial property transfers. The jurisprudence that rose upon the implied conditional gift theory, based upon an engagement ring’s symbolic associations with marriage, preserved a right of action narrowly tailored for ring givers seeking ring return. The bright-line rule of ring return on a no-fault basis, which Albinger urges this Court to adopt, sets forth as a matter of law “proper” post-engagement behavior in regard to this single gifted item. The proposed no-fault adjudication of a disputed engagement ring also ignores the particular circumstances of a couple’s decision not to marry. ¶37 Conditional gift theory applied exclusively to engagement ring cases, carves an exception in the state’s gift law for the benefit of predominately male plaintiffs. Montana’s “anti-heart balm” statute bars all actions sounding in contract law that arise from mutual promise to marry, absent fraud or deceit, and bars all plaintiffs from recovering any share of expenses incurred in planning a canceled wedding. While antenuptial traditions vary by class, ethnicity, age and inclination, women often still assume the bulk of pre-wedding costs, such as non-returnable wedding gowns, moving costs, or nonrefundable deposits for caterers, entertainment or reception halls. Consequently, the statutory “anti-heart balm” bar continues to have a disparate impact on women. If this Court were to fashion a special exception for engagement ring actions under gift law theories, we would perpetuate the gender bias attendant upon the Legislature’s decision to remove from our courts all actions for breach of antenuptial promises. Engagement Ring Disposition ¶38 To preserve the integrity of our gift law and to avoid additional gender bias, we decline to adopt the theory that an engagement ring is a gift subject to an implied condition of marriage. Judicial imputation of conditional gifting would stake new legal territory in Montana. “It is not the province of this court or any other court to assume to legislate by judicial interpretation, and to create in favor of any individual or any class of people an exception to the limitation set by the legislature.” Taylor v. Rann (1938), 106 Mont. 588, 594, 80 P.2d 376, 379; see also Section 1-2-101, MCA. ¶39 The District Court found the engagement ring was voluntarily offered by Albinger on December 14,1995, without consideration and with the present intent to voluntarily transfer dominion and control to Harris. Harris accepted the ring. Although the court implied a condition of marriage attaching to the gift as a matter of law, we do not. In our judgment, the gift was complete upon delivery, and a completed gift is not revocable. The fact that possession of the ring passed back and forth between Albinger and Harris during the course of their relationship bears no relevance to the issue of ring ownership. All of the elements of gifting must be present to transfer ownership, and the facts do not indicate re-gifting occurred. In fact, Albinger acknowledged Harris’ ownership himself when he told Harris “to take the car, the horse, the dog and the ring” when she left the relationship. We hold that the engagement ring was an unconditional, completed gift upon acceptance and remains in Harris’ ownership and control. Issue 2. ¶40 Did the District Court err in denying Albinger reimbursement for telephone charges incurred by Harris during cohabitation? ¶41 The District Court found that Harris had been free to use the telephone and charge calls to Albinger’s credit card throughout the relationship and Albinger paid the bills. Albinger seeks reimbursement for telephone charges incurred by Harris during the last month of their cohabitation. However, the record exhibits no proof by Albinger that he revoked Harris’ telephone privileges and Albinger presents no legal theory for recovery. We conclude that the District Court’s findings are not clearly erroneous and the court did not abuse its discretion in ruling that Albinger was not entitled to reimbursement. Issue 3. ¶42 Did the District Court err in awarding Hams compensation for general damages resulting from an assault and battery by Albinger ? ¶43 Harris counter-claimed for personal injuries stemming from the severe beating she sustained on February 23,1997, seeking $35,000 to cover medical and psychiatric treatment, lost wages, emotional distress, pain and suffering. The District Court found Albinger admitted liability for the incident and paid Harris’ resulting medical bills shortly after the incident. Harris was not employed during the time she lived with Albinger, and the court found no evidence of lost earnings. Noting that Harris failed to present evidence of past or anticipated psychiatric counseling needs and expenses, the court awarded Harris $2500 in general damages for emotional distress, pain and suffering. Albinger appeals the award. ¶44 Once liability is established, it is the duty of the finder of fact to award damages for pain and suffering when the evidence clearly establishes that the plaintiff suffered painful injury and the defendant presents no evidence to the contrary. Thompson v. City of Bozeman (1997), 284 Mont. 440, 446, 945 P.2d 48, 51; Lee v. Kane (1995), 270 Mont. 505, 514, 893 P.2d 854, 859; Walls v. Rue (1988), 233 Mont. 236, 236, 759 P.2d 169, 170 (citing Gehert v. Cullinan (1984), 211 Mont. 435, 439, 685 P.2d 352, 354). This Court will not disturb an award of damages unless the amount awarded is so grossly out of proportion to the injury as to shock the conscience. Hansen v. Hansen (1992), 254 Mont. 152, 159, 835 P.2d 748, 752; Frisnegger v. Gibson (1979), 183 Mont. 57, 66, 598 P.2d 574, 579 (citing Kelleher v. State (1972), 160 Mont. 365, 375, 503 P.2d 29, 34-35). The amount to be awarded is properly left to the finder of fact and this Court will not substitute its judgment unless we find the judgment to be the product of passion or prejudice. Frisnegger, 183 Mont. at 67, 598 P.2d at 580 (citing Salvail v. Great Northern Railway Co. (1970), 156 Mont. 12, 31, 473 P.2d 549, 560). In personal injury actions there is no measuring stick by which to determine the amount of damages to be awarded for pain and suffering other than the intelligence of a fair and impartial trier of fact governed by a sense of justice; each case must of necessity depend upon its own peculiar facts. Johnson v. United States (D.C.Mont. 1981) 510 F.Supp. 1039, 1045 (citing Pfau v. Stokke (1940), 110 Mont. 471, 475, 103 P.2d 673, 674-75). ¶45 The record contains substantial and uncontroverted evidence that Harris endured numerous incidents of domestic violence during her relationship with Albinger. Harris testified that she experienced considerable pain, emotional distress and inconvenience as a result of the particularly severe beating she sustained on February 23, 1997. Brandishing a knife and threatening to cut off her finger, Albinger forcibly removed the ring from Harris’ left hand, which resulted in permanent nerve damage. Albinger also pummeled Harris with a railroad lantern. Photographs, taken shortly after this incident and admitted into evidence without objection, document the bruises, swelling and abrasions on Harris’s face, head, neck, shoulders and arms. ¶46 The clear weight of authority holds that any award that fails to include a sum for the general damages of pain, suffering and emotional distress is inadequate or inconsistent when the evidence in support is beyond controversy. The trial judge’s assessment of $2500 for such damages certainly is not excessive and does nothing to “shock the conscience” of this Court. We hold that the District Court legitimately acted upon its legal duty to award general damages as part of its judgment in this case. CONCLUSION ¶47 We reverse the District Court’s conclusion of law and hold the engagement ring to be a gift given without implied or express condition. Montana gift law makes no provision for conditional gifting, except in the context of a gift in contemplation of death. We refrain from adopting permutations in the legal theory of gifting that have no legislated authority and serve to exacerbate gender bias. We affirm the court’s denial of reimbursement for telephone charges and the monetary award for Harris’ emotional distress, pain and suffering resulting from the assault and battery of February 23, 1997. ¶48 Reversed in part; affirmed in part; and remanded for entry of judgment consistent with this opinion. CHIEF JUSTICE GRAY, JUSTICES REGNIER and LEAPHART concur.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 Appellant Julio Madrid (Madrid) appeals an order of the Fifth Judicial District Court, Beaverhead County, granting summary judgment to Respondent Zenchiku Land and Livestock (Zenchiku). We reverse and remand for a determination of damages. ¶2 We address the following issue on appeal: Did the District Court err in holding that § 81-4-215, MCA, does not impose strict liability on owners of trespassing livestock? I. FACTUAL AND PROCEDURAL BACKGROUND ¶3 In 1996, the Huntley Ranch (Huntley) employed Madrid as a ranch hand. On or about May 26, 1996, a bull owned by Zenchiku, an adjoining ranch, was discovered on Huntley property. A Zenchiku employee named Gary James (James) came to retrieve the bull. After failed attempts to herd the bull through a gate, James, Madrid, James’ wife and one other Huntley employee attempted to put the bull in a trailer. Although the bull got in the trailer, when James went to close the doors, the bull came out of the trailer and charged at Madrid, who was sitting on a horse about 30 feet behind the trailer. When the bull hit the horse, Madrid was knocked off and the bull went after him on the ground. Madrid suffered various injuries from this encounter which gave rise to this cause of action for strict liability in trespass against Zenchiku as owner of the bull. ¶4 Before trial, both parties moved for summary judgment regarding whether Zenchiku was strictly liable under § 81-4-215, MCA. District Court Judge Robert J. Boyd granted summary judgment to Zenchiku and dismissed the strict liability in trespass count of Madrid’s complaint, holding that the statute did not provide for strict liability. Subsequently, this Court issued Larson-Murphy v. Steiner, 2000 MT 334, 303 Mont. 96, 15 P.3d 1205, which extensively discussed the history of open range law and the liability for damages caused by livestock. As a result of this opinion, Madrid moved for reconsideration of the previous order granting summary judgment to Zenchiku. Because Judge Boyd passed away, Judge Loren Tucker assumed oversight of the case. Judge Tucker agreed with Judge Boyd and denied Madrid’s motion for reconsideration. Madrid now appeals from both orders. II. STANDARD OF REVIEW ¶5 We review a trial court’s ruling on summary judgment de novo. Larson-Murphy, ¶ 20. In this case, summary judgment was granted based on the interpretation of a statute. Interpretation and construction of a statute is a matter of law. Clover Leaf Dairy v. State (1997), 285 Mont. 380,389, 948 P.2d 1164, 1169; § 26-1-201, MCA. We review a trial court’s conclusions of law to determine whether its interpretation is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. III. DISCUSSION ¶6 Did the District Court err in holding that § 81-4-215, MCA, does not impose strict liability on owners of trespassing livestock? ¶7 Although § 81-4-215, MCA, was originally enacted in 1887, we have not had occasion to directly apply the standard of liability of a claim brought under this statute. Rather, this statute has only been discussed in its relation to other statutes; in contrast to claims not brought under it; or in relation to the exception to the statute for intentional conduct. See e.g. Larson-Murphy, ¶¶ 41-69; State v. Blakely (1979), 181 Mont. 118, 122, 592 P.2d 501, 503; Monroe v. Cannon (1900), 24 Mont. 316, 326, 61 P. 863, 866. ¶8 Section 81-4-215, MCA, entitled “Liability of owners of stock for trespass” reads: If any cattle, horses, mules, asses, hogs, sheep, llamas, alpacas, bison, or other domestic animals break into any enclosure and the fence of the enclosure is legal, as provided in 81-4-101, the owner of the animals is liable for all damages to the owner or occupant of the enclosure. This section may not be construed to require a legal fence in order to maintain an action for injury done by animals running at large contrary to law. In both of its orders, the District Court held that this section does not allow for strict liability. Rather, in the first order, the court held that the language “is liable for all damages” was “only a reference to the measure of damages to be considered by the Court and adds no greater degree of liability on the owner of a trespassing animal.” The second order held that “[t]he open range concept is directly contrasted with strict liability,” and that our intervening decision in Larson-Murphy did not require a change in the District Court’s first order because Larson-Murphy did not address the relationship between adjoining landowners. Finally, while neither order expressly stated that the statute provides for a negligence standard, the language of both orders implies that a negligence standard applies because both orders state that strict liability does not apply. ¶9 Madrid asserts that the District Court erred in holding that § 81-4-215, MCA, does not provide for strict liability. He bases his argument on the plain language “is liable for all damages” contained in the statute. He also argues that the history and policy of the open range doctrine illustrate that the Legislature intended to enact a strict liability standard. ¶10 Zenchiku asserts the District Court correctly granted summary judgment because the statute provides for a negligence standard and further asserts that a strict liability interpretation would be a new development in Montana law. It also argues that strict liability is inappropriate because the definition of a legal fence is one which would not provide an absolute barrier against bulls or cows entering enclosed property and because cattle routinely jump fences. Zenchiku also argues that strict liability is inappropriate in the face of an owner’s reasonable attempts to. keep cattle fenced in open range country. Zenchiku further asserts that the cooperative relations between these adjoining owners, mutual efforts by both ranches to keep bulls from going onto the other’s property, and a fence for which costs and maintenance are a shared responsibility should all provide for a shared negligence standard. Zenchiku also argues that trespass does not necessarily imply strict liability, but can incorporate the concept of fault. Finally, in addition to its negligence argument, Zenchiku also argues that the fence at issue here does not fit the requirements of the statute and that consequently, Madrid does not meet the elements required by the statute to receive damages. ¶11 As mentioned above, we have not had occasion to directly address the standard of liability provided for in § 81-4-215, MCA, as most of our previous cases involving livestock trespass concern intentional trespass onto unenclosed land. However, we recently reviewed the history of open range law in Larson-Murphy. While that case did not consider the situation of adjoining landowners presented here, Larson-Murphy did explain how § 81-4-215, MCA, relates to the general framework of the open range doctrine. To briefly restate the relevant discussion in Larson-Murphy, under English common law an owner of livestock has the burden to fence in livestock because that owner is strictly liable for any damages caused by their livestock. In contrast, under the open range doctrine, owners of livestock do not have to fence in their livestock because they are not generally liable for damage caused by those livestock. Rather, if another landowner wants to recover for damages caused by trespassing livestock, that landowner has the burden to fence out trespassing livestock. Larson-Murphy, ¶¶ 34-44, 69, 84, 86. ¶12 Larson-Murphy noted that this change occurred because of the vast land area required to graze livestock in the arid western United States. As a result, the open range doctrine changed the English common law by shifting the burden of building fences from livestock owners to those who would want to keep livestock out, namely farmers. Larson-Murphy, ¶¶ 38-39. We noted in Larson-Murphy that the intent of § 81-4-215, MCA, was to codify this change. Larson-Murphy, ¶¶ 40, 69, 84. See also Blakely, 181 Mont, at 122, 592 P.2d at 503 (§ 81-4-215, MCA, provides a civil remedy for trespassing cattle); Montgomery v. Gehring (1965), 145 Mont. 278, 283, 400 P.2d 403, 406 (“One releasing his livestock onto lands where he has a right to do so is under no duty to restrain them from entering another’s unenclosed land.”); Hughey v. Fergus County (1934), 98 Mont. 98, 101-02, 37 P.2d 1035, 1036; Fant v. Lyman (1889), 9 Mont. 61, 62, 22 P. 120, 121; Smith v. Williams (1874), 2 Mont. 195; Ryan M. Archer, Searching for the Montana Open Range: A Judicial and Legislative Struggle to Balance Tradition and Modernization in an Evolving West, 63 Mont. L. Rev. 197, 203-04 (2002) (the “essence of this statute remains preserved in the current Montana Code Annotated.”). Therefore, we agree with Madrid that the intent of § 81-4-215, MCA, is to follow the open range doctrine by providing a strict liability remedy for trespassing livestock to landowners who enclose their property with a legal fence. ¶13 Zenchiku argues that since the open range doctrine changed English common law, what changed was the standard of strict liability. We disagree. Rather, the discussion in Larson-Murphy makes clear that the standard of strict liability remained and the only thing that changed was who had the burden to fence in order to gain protection under the law. ¶14 In addition to the history and policy behind § 81-4-215, MCA, the plain language of the statute indicates a strict liability standard because it states the owner of the livestock “is” liable. In contrast, in Ambrogini v. Todd, we held that language such as “may,” “permit,” or “allow” provides for a negligence standard. Ambrogini v. Todd (1982), 197 Mont. 111, 119-20, 642 P.2d 1013, 1018, overruled on other grounds by Larson-Murphy, ¶ 79. No such language is present in this statute. Further, to interpret “is hable” as a negligence standard would defeat the purpose of the statute. As Madrid points out, if the standard under the statute were negligence, a potential plaintiff does not gain anything by building a fence because that plaintiff could bring a negligence action with or without a fence. ¶15 Having determined that the statute provides for a strict liability standard, we next address Zenchiku’s argument that Madrid did not meet the elements required in order to recover under the statute. Zenchiku asserts that the fence at issue here does not meet the statutory requirements because there was no evidence that Huntley constructed or maintained the entire fence which enclosed the area of the Huntley ranch where the incident occurred and which separates the Huntley and Zenchiku ranches. Further, Zenchiku asserts that maintenance of the fence is shared by Huntley and Zenchiku. Zenchiku makes this argument despite its statement in its brief on appeal that the “sole and narrow issue on appeal is whether Mont. Code Ann. § 81-4-215 imposes a standard of strict liability.” ¶16 In its orders regarding interpretation of the statute, the District Court did not consider any of these issues regarding the fence. Rather, the court stated that “[t]he parties agree that the land was enclosed by a legal fence.” Therefore, the court did not consider any of the issues regarding the fence which Zenchiku now raises. ¶17 The statute itself does not state any requirements regarding who builds or maintains the “legal” fence. See also § 81-4-101, MCA. Rather, the language of the statute makes clear that liability is imposed if the fence is legal, the animal trespassing or breaking into the enclosure is not supposed to be there, and an owner or occupant entitled to be in the enclosure incurs damages. Therefore, under the terms of the statute, it is irrelevant who builds or maintains the “legal fence.” Rather, relative liability is determined depending on whether an animal broke into an enclosure and whether someone is an owner or occupant. ¶18 In this case, there is no dispute that Zenchiku’s bull broke into an enclosure and no dispute that Madrid was a proper occupant of the enclosure. Further, Zenchiku does not dispute that the fence here meets the definition of a legal fence in § 81-4-101, MCA. Therefore, Madrid met all the requirements needed to recover under § 81-4-215, MCA, and is entitled to damages because Zenchiku is strictly liable for the actions of its trespassing bull. ¶19 Finally, in making this holding, we recognize that a statute written over a century ago may no longer fit the cooperative practices for building fences or managing stray livestock referred to by Zenchiku. Further, when the open range doctrine was established and codified by § 81-4-215, MCA, much of the land was unfenced. Therefore the statute did not contemplate the current situation in which large ranches are entirely enclosed. However, we must interpret the statute as written and must give effect to the statute’s original intent. Any other action is properly left to the Legislature. IV. CONCLUSION ¶20 Because the District Court erred in holding that § 81-4-215, MCA, does not provide for strict liability, and because Madrid met all the requirements of the statute, we reverse and remand for a determination of damages. JUSTICES LEAPHART, RICE, COTTER, TRIEWEILER and REGNIER concur.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 On May 31, 2000, Marsha Kummer (Marsha) moved the Eighth Judicial District Court for an increase in child support. Following a hearing, the District Court granted the motion, increasing Samuel Heinert’s (Samuel’s) monthly child support obligation from $400 to $742. Samuel appeals the District Court’s Findings of Fact, Conclusions of Law, and Order. We affirm. ¶2 The dispositive issue on appeal is whether the District Court abused its discretion in modifying the father’s child support obligation. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Marsha and Samuel were married in 1991 and have two children together, a son born in 1993, and a daughter born in 1994. On August 26, 1998, the District Court entered a Decree of Dissolution (Decree), dissolving the marriage. The Decree incorporated a Property Settlement Agreement (Agreement) that Marsha and Samuel executed on August 25, 1998. ¶4 Pursuant to the Agreement, the parents had joint legal custody, with Marsha having primary physical custody and Samuel having the children every other weekend and Tuesday and Friday nights. The Agreement provided that Samuel would pay $400 in monthly child support to Marsha in accordance with the Montana Uniform Child Support Guidelines (Guidelines). The parties later changed the weekly parenting schedule, agreeing that the children would continue to live primarily with Marsha, but would stay with Samuel on alternating weekends and on Monday and Tuesday nights in alternating weeks. ¶5 On May 31, 2000, Marsha filed a Motion and Brief to Modify Child Support asking the court to review and increase Samuel’s support obligation to comply with the Guidelines. In the accompanying affidavit, Marsha alleged that since the Decree in 1998, there had been a substantial increase of costs for caring for the children, particularly their daycare costs. ¶6 On June 20, 2000, Samuel filed a Motion to Change Custody, which Marsha opposed. The parties entered into mediation where they settled all outstanding matters, other than the issue of Marsha’s motion to increase Samuel’s child support obligation. Marsha later filed a Child Support Financial Affidavit, which indicated the gross annual daycare cost for the two children was $5434 (an average of $453 per month). ¶7 The District Court held a hearing on the motion on April 5, 2001. At the hearing Marsha explained that the cost of daycare increased because the children were previously cared for by a family member at a reduced rate of $360 per month, or $4320 gross annual cost. However, when the children got older, they had to go to a different daycare which according to Marsha costs $5434 per year ($8 per child, per day, for school days, and $16 per child, per day, for summers and holidays). Marsha testified that she calculated the $5434 figure by going through the school calendar and figuring which days would be full childcare days ($16/child), and which days would be part days ($8/child). At the time, both children attended school all day (son in first grade and daughter in all-day kindergarten). Samuel did not offer any testimony or evidence concerning the cost of the children’s daycare. ¶8 In both parties’ most recent Child Support Guidelines Worksheets (Worksheets), which were attached to their Proposed Findings of Fact, Conclusions of Law and Orders, each party listed the “child daycare costs less dependent care tax credit,” figure as $4330 (i.e., $5434, less the tax credit). The parties’ “net annual obligation” figures were also quite similar. Marsha figured her net annual obligation was $187 and Samuel’s was $8,906; while Samuel figured Marsha’s obligation was $267 and his was $8,674. However, the parties differed considerably as to the amount of Samuel’s monthly obligation because they disagreed as to how many days per year the children spend with each parent, which accordingly affected any adjustments to Samuel’s support obligation . ¶9 The disparate calculations stemmed from uncertainty as to which parent received “credit” for days that he or she dropped the children at school/daycare after an overnight visit. Marsha indicated the children spend 255 days per year with her, and 110 days per year with Samuel, while Samuel indicated the children spend 209 days per year with Marsha, and 156 days with him. Accordingly, although the Worksheets’ “net annual obligations” were similar, the parties disagreed significantly on the amount of Samuel’s monthly support obligation, with Marsha alleging Samuel owed $742 per month and Samuel contending he owed $485 per month since by his calculations, he spends more than 110 days a year with the children. ¶10 During the hearing, each parent testified concerning what he or she spent on the children. Marsha testified that she pays for all of the daycare costs, the school lunch punch tickets, the majority of the children’s clothing, their shoes and coats, medical insurance, and other miscellaneous items (i.e, haircuts, daughter’s gymnastics fee and gear, son’s wrestling gear). Samuel testified that he paid for some of the children’s school clothing (estimating he spent $100 per child last fall; and had recently spent $114 on his son), half of the swimming lessons the previous summer, and his son’s wrestling program fee. Samuel also testified that hé agreed to pay half the children’s medical expenses, and that he has paid some medical costs in the past. However, on cross-examination, Samuel admitted that he still owed some back medical expenses from the previous year. Marsha testified that she has paid for the children’s medical costs not covered by insurance, adding that although she has asked, she has not received any payment from Samuel towards those costs. Neither parent testified as to specific figures concerning medical expenses or insurance premiums at the hearing. ¶11 Marsha also explained that if the children need to come home sick from school, the school contacts her, and if it is a day Samuel is scheduled to pick them up, she will call Samuel to see if he can pick up the child. If Samuel cannot pick up the child, Marsha takes the sick child home and Samuel later collects him or her from Marsha’s house. ¶12 The parties disagreed as to how many times Samuel took the children to the doctor. Marsha testified that since the divorce in 1998, she has taken the children to all their appointments except for two. Samuel, however, disputed Marsha’s testimony, and explained to the court that in just the past few days, both he and Marsha were present at two doctor appointments. ¶13 Following the parties’ testimony, and after hearing arguments concerning the calculation of days, the District Court concluded that “the mother is the primary caregiver, that she receives support and assumes the responsibility for providing most of the needs for the children. And based on that, I’m going to give her credit for these daytime daycare periods that are in issue and apply the [administrative] rule that we have here.” ¶14 Upon the request of the court, Marsha filed Proposed Findings of Fact, Conclusions of Law and Order, which the court adopted. The District Court found there had been a substantial and continuing increase in daycare expenses. The court concluded that the change in circumstances made the original child support terms unconscionable. The court also concluded that Samuel spends 110 days per year with the children, thus preventing him from receiving a reduction in his support obligation, and ordered Samuel’s monthly obligation be increased to $742, beginning June 8,2000. Samuel appeals the District Court’s Findings of Fact, Conclusions of Law and Order. STANDARD OF REVIEW ¶15 We review a district court’s determinations regarding substantial and continuing changed circumstances and unconscionability, pursuant to § 40-4-208(2)(b)(i), MCA, for abuse of discretion. In re Marriage of Jarussi, 1998 MT 272, ¶ 7, 291 Mont. 371, ¶ 7, 968 P.2d 720, ¶ 7 (citing In re Marriage of Pearson, 1998 MT 236, ¶ 30, 291 Mont. 101, ¶ 30, 965 P.2d 268, ¶ 30). We review a district court’s overall decision on modification of child support awards for abuse of discretion, keeping in mind the best interests of the children. Marriage of Pearson, ¶ 29 (citation omitted). DISCUSSION ¶16 Did the District Court abuse its discretion in modifying the father’s support obligation? ¶17 Samuel argues that there was an insufficient showing of changed circumstances as to warrant increasing his support obligation. Samuel contends that the costs of daycare did not substantially change, arguing there was only a $10 difference between costs in 1998 ($360 x 12 = $4320/yr) and those Marsha reported in 2000 ($4330). Marsha counters that Samuel is comparing dissimilar figures, since the $4330 figure was actually daycare costs less dependent care tax credit, while the 1998 figure of $4320 was a gross total cost before any tax credit. ¶18 A decree containing provisions for support may be modified “upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable!!.]” Section 40-4-208(2)(b)(i), MCA. Determination of “unconscionability” is made on a case-by-case scrutiny of the underlying facts. Marriage of Pearson, ¶ 30 (citing In re Marriage of Brown (1997), 283 Mont. 269, 272, 940 P.2d 122, 123). In order to demonstrate changed circumstances, a party must provide specific evidence about changed economic circumstances or actual increased need. Marriage of Pearson, ¶ 44 (citing In re Marriage of Gingerich (1994), 269 Mont. 161, 165, 887 P.2d 714, 716). ¶19 The evidence presented at the hearing supports the court’s conclusion that there was a substantial increase in the costs of daycare. Based on the rate increase, the average monthly daycare expense went from $360 in 1998, to $453 in 2001, for a difference of $93 per month, which amounted to an overall increase of over 25%. Moreover, during months when the children were in daycare for full days (i.e., summer and vacations), the costs of daycare alone were greater than the monthly $400 support payment from Samuel. Samuel offered no testimony or evidence at the hearing to refute these new daycare costs. When asked by the court if he disputed the daycare calculations, Samuel responded, “No,” and added that he thought “the [daycare] figures are pretty close,” and that both parties based their proposed findings on the $4330 figure. ¶20 We conclude Marsha made a sufficient showing of changed circumstances so substantial and continuing as to make Samuel’s original support obligation unconscionable, and accordingly, the District Court did not abuse its discretion in modifying Samuel’s support obligation. However, we must now consider the amount that Samuel’s support obligation was modified by the District Court, since Samuel also challenges the District Court’s application of § 37.62.138, ARM, in determining the number of days per year that the children spend with him which, in turn, affected how much his support obligation was increased. ¶21 Rule 18 of the Child Support Guidelines, as set forth at § 37.62.138, ARM, provides in relevant part: (1) If any child of a calculation spends more than 110 days with both parents, there will be an adjustment to the portion of the obligation due and payable from one parent to the other. (3) For the purposes of this rule, a day is when a child spends the majority of a 24 hour calendar day with or under the control of a parent. This assumes that there is a correlation between time spent and resources expended for the care of the child. ¶22 Samuel argues that the District Court misapplied § 37.62.138, ARM, by giving Marsha full credit for those days Samuel drops the children off at school. Samuel contends that he should receive credit for those days since the children spend the night with him, particularly in light of the fact Marsha also received credit for the days she dropped the children off at school and Samuel picked them up. For a two-week period, Samuel calculates that he spends six nights with the children, while Marsha has them eight nights. ¶23 Marsha counters that the District Court properly applied the administrative rule, arguing that because she takes primary responsibility for the financial support of the children when they are in school (i.e., pays for majority of school clothes and all of lunches), Samuel is not entitled to credit against his child support for the hours the children are in school on the days he drops them off. Marsha argues that for every two-week period, Samuel has the children for more than twelve hours on only four days, as calculated under the administrative rule’s definition of a day (majority of the 24 hours). ¶24 The District Court agreed with Marsha, and made the following relevant findings: Since the decree was entered in 1998, there has been a substantial and continuing increase in the costs of caring for the children, including their daycare costs. Marsha, as the primary parent, provides for most of the children’s financial needs. She is responsible for the children while they are in school or daycare on all days except for Mondays in alternating weeks, and Tuesdays in alternating weeks, and during Father’s 14 days of vacation each year. Marsha takes the children to and pays for doctor’s appointments, haircut appointments, and she pays for their school lunches, and she takes off work to stay home with the children if they are ill. She provides the vast majority of the children’s clothing and shoes and activity expenses. ¶25 Applying § 37.62.138, ARM, the court concluded that Samuel is not entitled to credit for the days that he has the children for less than twelve hours of a calendar day, calculating the total days Samuel has the children as follows: 14 days vacation 72 days alternating weeks from Friday at 5:00 p.m. until Tuesday at 6:00 a.m. (credit for Saturday, Sunday and Monday for 24 weeks) 24 days alternating Tuesdays for 24 weeks out of the year. 110 Total days ¶26 We review a district court’s overall decision on modification of child support awards for abuse of discretion. Marriage of Pearson, ¶ 29. In evaluating abuse of discretion, we look to whether the court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. Marriage of Pearson, ¶ 30 (citation omitted). ¶27 Whenever a district court modifies an order concerning child support, “the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209.” Section 40-4-204(3)(a), MCA. Moreover, a support obligation determined under the guidelines is “presumed to be an adequate and reasonable support award unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or that it is inappropriate in that particular case.” Section 40-4-204(3)(a), MCA. See also, Welch v. Welch (1995), 273 Mont. 497, 501, 905 P.2d 132, 135 (a district court’s determination of child support modifications “is presumed to be correct and, absent an abuse of discretion, will not be disturbed”) (citations omitted). ¶28 In reviewing the District Court’s modification order, we recognize that the Guideline defining “days” with respect to possible adjustments to child support obligations (§ 37.62.138(3), ARM), offers no direction to district courts, or this Court, in how the “majority of the day” is calculated when children spend part of that day not under the explicit control of either parent, such as when they are in school or daycare. This lack of guidance may well lead to disparate calculations as to the numbers of “days” a child spends with one parent or another, as this case demonstrates. Because of the vagueness of the Guidelines, a district court ends up engaging in a detailed day-by-day evaluation of expenses and levels of responsibility associated with children while they attend school/daycare, and an ensuing analysis of the correlation between such monetary resources or parental accountability and the allocation of “days” when calculating whether one of the parents spends over 110 days with the children. ¶29 Unless and until these Guidelines are amended by the Department of Public Health and Human Services, to truly provide guidance to a district court on how to allocate the “majority of a 24 hour calendar day,” we will review a district court’s determination of which parent “gets credit” for certain hours of a day, for an abuse of discretion. Under this standard, we cannot conclude that the District Court abused its discretion when it calculated how many days per year Samuel spends with the children. Moreover, we conclude that the District Court demonstrated the “employment of conscientious judgment,” when it “credited” Samuel for two of the days the children were in school/daycare, even though it also concluded that Marsha had primary responsibility for the children while they attended school/daycare. Accordingly, we conclude the District Court did not abuse its discretion, and we affirm the District Court’s modification of Samuel’s child support obligation. CHIEF JUSTICE GRAY, JUSTICES REGNIER, NELSON and LEAPHART concur. As custodial parent, Marsha’s net annual obligation is her gross annual obligation (approximately $4600), less the total annual childcare and healthcare expenses that she pays (i.e., $4330 in daycare costs, and $75 in children’s health insurance premiums). Under the Guidelines, adjustments to support obligations are allowed if any child spends more than 110 days with both parents. See § 37.62.138, ARM. In his reply brief, Samuel also argues that even if the daycare cost figures are accepted as accurate, the total supplemental expenses for the children increased only $9.08 per month when other expenses, such as health insurance premiums, are considered. However, this Court mil not address an issue raised for the first time in a reply brief. Rule 23(c), M.R.App.P.; and Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 28, 289 Mont. 255, ¶ 28, 961 P.2d 100, ¶ 28 (citations omitted). Accordingly, we will not address this particular argument raised by Samuel in his reply brief.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 Erika Hastetter (Hastetter) appeals the determination by the Seventh Judicial District Court, Richland County, that a roadway providing access to and egress from a half-section of pasture owned by Lewis A. Albert (Albert) is subject to a prescriptive easement, enuring to the benefit of Albert. We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Albert acquired the following described half-section of land, which is the dominant tenement in this action, from his mother by contract for deed in November 1958: Township 20 North, Range 59 East, M.P.M. Section 2: E Vi Albert used the land solely for grazing a small herd of cattle for six months each year, with occasional fallow years to allow the grasses to regenerate. To access the pasture, Albert traveled approximately two miles from State Highway #261 over an unimproved roadway in a southwesterly direction. The road begins at Highway #261 and crosses the SW 1/4 of Section 35 and the SE 1/4 of Section 34 of Township 21 North, Range 59 East; then runs across the NW 1/4 of Section 6 of Township 20 North, Range 60 East; then westerly across all of Section 1 and the E V2 of Section 2 of Township 20 North, Range 59, to Albert’s pasture gate located at the approximate center of Section 2. ¶3 Between 1969 and 1971, Dr. N.J. Hastetter of Circle, Montana purchased all privately owned parcels composing the servient tenement in this action and leased the land for grazing on an annual basis to area ranchers. By agreements dated January 4, 1988, Dr. Hastetter placed the subject land in trust, which named himself as trustee and his heirs, Thomas Hastetter and Judy Hastetter, as trustors and beneficiaries. The Hastetter Trust property is described as follows: Township 20 North, Range 60 East, M.P.M. Section 6: All (fractional) except that part lying in the E V2, east and south of Montana Highway #261 as it now exists. Township 20 North, Range 59 East, M.P.M. Section 1: All (fractional) Township 21 North, Range 59 East, M.P.M. Section 35: That portion of the W Vz lying south and west of Montana Highway #261 as it now exists. ¶4 Albert testified that he pastured livestock on his half-section every year from 1958 to 1974 and most years between 1975 and 1985. He transported the cattle over the road each spring and fall and used the roadway every third day to check on his animals. During fallow years, Albert traveled the roadway about once each month to check the condition of fences and grasses. Since the mid-1980s, Albert leased his half-section to other ranchers and used the road at least twice each year to visit the land and repair the fences. Albert stated that he never discussed the road and never asked permission to use the road from either Dr. Hastetter or Hastetter’s predecessors in ownership. No one maintained the rutted, two-track lane, with the exception of road improvements made in 1962 by a company that drilled for oil on Albert’s half-section. ¶5 Due to his advancing age, Albert offered the half-section for sale in the late 1990s. An interested buyer conditioned purchase on Albert obtaining a road easement from the Hastetter Trust. Albert hired an attorney who prepared and sent a letter to Dr. Hastetter on April 30, 1998, requesting the Trust’s cooperation in recognizing the existence of Albert’s easement to access his pasture. Dr. Hastetter refused to acknowledge or grant an easement. ¶6 Albert filed a Complaint on October 16, 1998, to determine his claim for a prescriptive easement and quiet title to the roadway. In his Answer, Dr. Hastetter raised the affirmative defense of estoppel, claiming that Albert recognized Hastetter’s legitimate title to the road by requesting an easement in his April 30th letter. Hastetter also claimed that Albert’s use had been permissive and subject to Dr. Hastetter’s consent. ¶7 Both Albert and Dr. Hastetter were deposed by opposing attorneys and Dr. Hastetter later made substantive corrections to his deposition. In August of that year, Dr. Hastetter suffered a heart attack, and the trial date was continued. Dr. Hastetter died on May 8, 2000, and the District Court named his spouse and successor trustee, Erika Hastetter, as substitute defendant on May 23, 2000. Dr. Hastetter’s original deposition and all corrections to the deposition were admitted into evidence at trial. ¶8 On September 12, 2000, the District Court issued Findings of Fact, Conclusions of Law and Decree, which announced the existence of an easement by prescription enuring to the benefit of Albert’s land. The court concluded that clear and convincing evidence supported the establishment of a prescriptive easement by operation of law. According to the decree, the statutory five-year period of adverse use commenced when Albert began using the road in 1958. The court noted that easement rights to the two-track road from State Highway #261 across the Hastetter Trust properties to Albert’s property are limited to the historical use of providing access and moving cattle to and from Albert’s pasture. ¶9 Hastetter raised six issues on appeal. We restate and consolidate those issues as follows: ¶10 1. Did the District Court err in describing the roadway subject to a prescriptive easement? ¶11 2. Did the District Court err in concluding that all elements necessary to establish a prescriptive easement were supported by clear and convincing evidence? ¶12 3. Did the District Court misapprehend and fail to give evidentiary value and effect to evidence that road use was permissive? ¶13 4. Did the District Court err in considering the deposition testimony of Dr. N. J. Hastetter with “great distrust?” STANDARD OF REVIEW ¶14 This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings 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. Guthrie v. Hardy, 2001 MT 122, ¶ 24, 305 Mont. 367, ¶ 24, 28 P.3d 467, ¶ 24 (citing Engel v. Gampp, 2000 MT 17, ¶ 31, 298 Mont. 116, ¶ 31, 993 P.2d 701, ¶ 31). Additionally, in determining whether the trial court’s findings are supported by substantial credible evidence, this Court must view the evidence in the light most favorable to the prevailing party. Guthrie, ¶ 24. We review a district court’s conclusions of law to determine whether those conclusions are correct. Guthrie, ¶ 24. I ¶15 Did the District Court err in describing the roadway subject to a prescriptive easement? ¶16 The District Court described Albert’s claim of easement to encompass the roadway “commencing at Montana State Highway 261, then traveling southwesterly across the SW 1/4 of Section 35 and the NW 1/4 of Section 6, then westerly across the approximate middle of Section 1 of the Hastetter Trust properties.” Maps depicting the route were appended as part of the court record. ¶17 Hastetter notes on appeal that the District Court did not mention that a road segment approximately 100-200 feet in length and subject to the prescriptive easement crosses the corner of Section 34 of Township 21 North, Range 59 East, which is owned and managed by the Bureau of Land Management (BLM). Because the United States government is not a party to the judgment and is immune from adverse possession claims, Hastetter argues that the District Court erred in recognizing the easement over the Hastetter Trust properties when Albert has no assurance that he will be allowed future access across the federal land. Hastetter raises a concern that Albert may be required to relocate the road in the future to circumnavigate the federal land. While Albert acknowledges that the Decree is not binding upon the federal government, he asserts his past, present and future travel across the BLM section was not a matter before the court. ¶18 No evidence was presented at trial regarding any deviation from the established course of travel or any impediment to Albert’s present or future use of the federally-owned section of the road. We will not give substance to a chimera on appeal, and we conclude that the issue raised by Hastetter is speculative and not properly before this Court. II ¶19 Did the District Court err in concluding that all elements necessary to establish a prescriptive easement were supported by clear and convincing evidence? ¶20 A prescriptive easement for a right-of-way across another person’s land is created by law based on a claim of title by adverse use. Section 70-19-409, MCA. The elements necessary to establish a prescriptive easement must be proven at the district court level by clear and convincing evidence. Renner v. Nemitz, 2001 MT 202, ¶ 13, 306 Mont. 292, ¶ 13, 33 P.3d 255, ¶ 13 (citing Wareing v. Schreckendgust (1996), 280 Mont. 196, 206, 930 P.2d 37, 43). A claimant must establish open, notorious, continuous, uninterrupted, exclusive and adverse use of an easement for five years before the commencement of the action. Renner, ¶ 13; § 70-19-404, MCA. Montana has consistently followed the minority rule, which holds that open, notorious, continuous, uninterrupted and exclusive use raises a presumption that the use was also adverse. Renner, ¶ 13; Wareing, 280 Mont. at 209, 930 P.2d at 45; Warnack v. Coneen Family Trust (1996), 278 Mont. 80, 83, 923 P.2d 1087, 1089; Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 425, 913 P.2d 641, 648; Lemont Land Corp. v. Rogers (1994), 269 Mont. 180, 185, 887 P.2d 724, 727-28; Mountain View Cemetery v. Granger (1978), 175 Mont. 351, 356, 574 P.2d 254, 257; Glantz v. Gabel (1923), 66 Mont. 134, 141, 212 P. 858, 860. However, mere occasional recreational use is insufficient to raise the presumption of adverse use. Kessinger v. Matulevich (1996), 278 Mont. 450, 458, 925 P.2d 864, 869 (citing Public Lands Access Ass’n v. Boone & Crockett (1993), 259 Mont. 279, 284, 856 P.2d 525, 527-28); Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1358. ¶21 To be “open and notorious,” roadway use must give the landowner actual knowledge of the claimed right, or be of such a character as to raise a presumption of notice. Hitshew v. Butte/Silver Bow County, 1999 MT 26, ¶ 17, 293 Mont. 212, ¶ 17, 974 P.2d 650, ¶ 17 (citing Mildenberger v. Galbraith (1991), 249 Mont. 161, 167, 815 P.2d 130, 134-35). Open and notorious use can be established by showing that the condition of use was so obvious that the owner was not deceived and should have known of the claimant’s use. Mountain View Cemetery, 175 Mont. at 356, 574 P.2d at 257. ¶22 Photographic evidence depicts a rutted, two-track road across the Hastetter Trust lands, which was the condition of the roadway at the time of trial. Even a cursory view of his property would have alerted Dr. Hastetter to regular use of this well-defined route leading to Albert’s pasture. Albert testified that he traveled the road regularly since he purchased his half-section pasture in 1958. Although Dr. Hastetter stated that he did not often visit the Trust’s properties, he testified in his deposition that he was aware of Albert’s use of the road, he once met Albert along the road and he twice saw a pick-up that might have been Albert’s on the road. Albert testified that he made no attempt to hide his road use through the years. We conclude that substantial evidence exists to support the court’s finding that Dr. Hastetter was aware of Albert’s open and notorious use of the road. ¶23 To be “continuous and uninterrupted,” the use of a claimed right must not be abandoned by the user or interrupted by an act of the landowner. Hitshew, ¶ 17 (citing Granite County v. Komberec (1990), 245 Mont. 252, 257, 800 P.2d 166, 169). Although Albert used the road to visit his land every year since 1958, the frequency of his visits depended upon whether he ran cattle on his pasture in a particular year. Until 1974, Albert grazed cattle every year, which required that he move the animals from Highway #261 over the two-mile road to the pasture. He then drove his pick-up in every third day at about 10:00 a.m. to check the stock, and trucked the cattle out each fall by this same route. Although Albert later reduced his use when he leased his land during the 1980s and 1990s, he testified that he traveled across the road at least twice each year. The parties presented no evidence that indicated Albert abandoned his right to use the road or that Hastetter ever asserted a right hostile to Albert’s easement. In fact, the court’s finding that use was continuous and uninterrupted is undisputed. ¶24 “Exclusive” use does not mean that no one else may use the claimed roadway except the easement claimant. Instead, the element requires only that the claimant’s right of use does not depend on the like right in others. Wareing, 280 Mont. at 208, 930 P.2d at 44 (citing Hays v. De Atley (1923), 65 Mont. 558, 561, 212 P. 296, 298). Others may have used the road as long as their use did not interfere with the claimant’s use just as the owner of the servient estate may use his property in any manner and for any purpose consistent with the enjoyment of the easement by the claimant. Wareing, 280 Mont. at 208, 930 P.2d at 44 (citing Hays, 65 Mont. at 561, 212 P. at 298). ¶25 Neither party offered evidence regarding regular use of the road by anyone other than Albert, himself. Also, no evidence indicated that Dr. Hastetter, his land lessees or prior owners of the Trust’s properties interfered in any way with Albert’s travel on the claimed roadway. Consequently, the element of exclusive use also stands uncontested. ¶26 In summary, we conclude the District Court’s factual findings are supported by substantial evidence and we affirm the conclusion that Albert established the elements for a prescriptive easement during the statutory five-year period. Consequently, Albert also enjoyed the presumption that his use was adverse to Hastetter’s interest. Ill ¶27 Did the District Court misapprehend and fail to give evidentiary value and effect to evidence that road use was permissive? ¶28 The burden rests with the owner of the servient tenement to overcome a presumption of adverse use with proof by clear and convincing evidence that the use was permissive. Renner, ¶ 13. See also Tanner, 275 Mont. at 425, 913 P.2d at 648. Adverse use or assumption of control of a roadway is exercised under a claim of right and not as a mere license revocable at the pleasure of the servient landowner. Hitshew, ¶ 17 (citing Public Lands Access Ass’n, 259 Mont. at 283, 856 P.2d at 527). While the servient landowner must know about and acquiesce to the user’s claim of right, Public Lands Access Ass’n, 259 Mont. at 283, 856 P.2d at 527, there exists no requirement under Montana law that a prescriptive easement claimant verbally communicate a hostile intent. Warnack, 278 Mont. at 83, 923 P.2d at 1089. ¶29 In this case, Hastetter’s burden is heavy because Albert testified that he neither requested nor received permission from Dr. Hastetter or Hastetter’s predecessors in interest to access his land by way of the road. In his deposition, Dr. Hastetter affirmed that he never received a request from Albert for permission and he never gave his written or verbal consent. On appeal, Hastetter argues that the District Court overlooked substantive evidence that use was permissive on the theory that Dr. Hastetter permitted Albert to continue to use the road as a neighborly accommodation. Specifically, Hastetter contends the court misapprehended the letter sent by Albert’s attorney to Dr. Hastetter on April 30,1998; failed to give weight to the clear language of a legal instrument attached to the letter; and misconstrued the significance of three gates erected along the roadway. ¶30 We review a district court’s findings of fact to determine whether substantial evidence supports those findings, and not to determine whether the evidence would support contrary findings. Rafanelli v. Dale (1996), 278 Mont. 28, 37, 924 P.2d 242, 248. Also, we will not substitute our judgment for that of the trial court where the issue relates to the weight given to certain evidence. Warnack, 278 Mont. at 85, 923 P.2d at 1090. ¶31 The text of the letter prepared by Albert’s attorney and sent to Dr. Hastetter on April 30, 1998 reads: On behalf of my client, Lewis Albert, I am writing to request your cooperation in recognizing an easement for access to his property at Township 20 North, Range 59 East, Section 2 that adjoins your property at Township 20 North, Range 59 East, Section 1. Historically, access has been allowed through the truck track near the middle of the section. The enclosed easement relates to this track route. Hastetter contends the phrase that “[hjistorically, access has been allowed” acknowledges the Hastetter Trust’s legitimate title to the roadway and provides substantial proof that Albert traveled the route by permission. ¶32 The District Court did not find the letter offered conclusive proof of permissive use and stated: The court concludes that the letter is ambiguous at best. Although the letter refers to use historically being allowed, it also requests recognition of the easement by the Defendant and does not request the granting of one. Taken as a whole, the Court does not conclude that this letter establishes that the prior use was permissive. ¶33 The apparent internal contradictions undermine the letter’s evidentiary value. While Albert clearly sought cooperation in recognizing an existing easement, the statement that access had been allowed historically does infer prior permissive use. The court’s determination that the April 30, 1998 letter was ambiguous and of little probative value is not an abuse of discretion. ¶34 Hastetter next argues that the District Court ignored evidence that Albert had attempted to purchase legal title to an easement. Hastetter claims that an unsigned legal instrument for an “Easement,” which was attached to the April 30 letter, defeats Albert’s claim of adverse use. The instrument proposes that Dr. Hastetter grant a road easement on the basis of “good and valuable consideration, the receipt and sufficiency of which is acknowledged.” Hastetter cites Blackfoot Land Development Co. v. Burks (1921), 60 Mont. 544, 199 P. 685, for the proposition that an attempt to purchase legal title defeats a claim for adverse possession. ¶35 In Blackfoot Land Development, the prescriptive claimant offered to buy the land numerous times during his period of use and asked a prospective buyer for permission to continue to use the land if the purchase took place. The facts before us today present a very different situation. Albert consistently denied that he ever offered to purchase an easement from Dr. Hastetter and his denials remain undisputed. A written reference to prior receipt of consideration obtains legal import only when such consideration actually is offered or accepted. In this case, Dr. Hastetter never received or accepted “good and valuable consideration” for an easement. Consequently, the reference to consideration in the easement instrument does nothing to diminish Albert’s claim of adverse use. ¶36 Finally, Hastetter contends that the District Court failed to consider the evidentiary value of three gates along the road on the Hastetter Trust lands that obstruct travel. Hastetter cites Maynard v. Bara (1934), 96 Mont. 302, 30 P.2d 93; Peasley v. Prosper (1937), 103 Mont. 401, 64 P.2d 109; and Kessinger, 278 Mont. 450, 925 P.2d 864. In each of these cases claimants did not enjoy the presumption of adversity by either failing to establish open, notorious, continuous and uninterrupted use of the contested roadways or using the road for recreational purposes only. In the absence of the legal presumption of adverse use, this Court stated in each case that the presence of unlocked gates that a traveler must open and close so as to leave the gates as found constituted “strong evidence of permissive use.” ¶37 A concurrent line of cases cited by Albert held that the presence of unlocked gates was not enough to rebut the presumption of adverse use when the gates were only closed during the summer months and were constructed to control cattle rather than stop human traffic. Kostbade v. Metier (1967), 150 Mont. 139, 145, 432 P.2d 382, 386. Accord, Parker v. Elder (1998), 233 Mont. 75, 80, 758 P.2d 292, 294; Lemont Land Corp., 269 Mont. at 186, 887 P.2d at 728. ¶38 Albert testified that he ran cattle on his land abutting the Hastetter Trust properties and constructed the gate across the road at the boundary fence to contain his livestock. Albert’s deposition testimony also confirms that the fences and two other gates along the roadway on the Hastetter Trust land were constructed for the purpose of livestock control: Q. “Okay. Now, normally when you go through there, do you have to open and close all three gates? A. You say normally. If there’s no stock in there, the chances are someone has left the gates open, so its not necessary to stop and open them and close them. If there is stock in either side, why, they’re opened and closed each time. ¶39 Given the obvious use of the gates to control livestock, we conclude the District Court did not abuse its discretion when it refrained from scrutinizing the gates as evidence of permissive use. IV ¶40 Did the District Court err in considering the deposition testimony of Dr. N.J. Hastetter with “great distrust?” ¶41 Dr. Hastetter died prior to trial, thus his deposition was entered into evidence. The deposition consisted of the original transcript from the May 18, 1999 interview by Albert’s attorney and three pages of corrections signed and submitted by Dr. Hastetter on June 24, 1999. The correction sheets contained numerous substantive changes to the original testimony. Because Dr. Hastetter’s credibility was not directly attacked at trial, Hastetter argues that the judge was not at liberty to regard his amended testimony with “great distrust.” Citing § 26-1-302, MCA, which states, “a witness is presumed to speak the truth,” Hastetter contends that Dr. Hastetter’s original and amended testimony should stand as probative evidence for every fact stated. ¶42 Albert counters that Dr. Hastetter’s entire deposition, which includes the correction pages, was appropriately entered as evidence. Rather than disregard any part of the deposition, the District Court considered the original testimony with the changes and correctly viewed the corrections with distrust when they conflicted with the original answers. ¶43 This Court has not had prior occasion to examine issues arising from substantive changes made to a deposition. Rule 30(e), M.R.Civ.P., outlines the following procedure of amending deposition testimony: When the testimony is fully transcribed the deposition shall be submitted to the witness for examination and shall be read to or by the witness, unless such examination and reading are waived by the witness and by the parties. Any changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. These provisions are identical to and modeled upon Rule 30(e) of the Federal Rules of Civil Procedure, which confers federal court interpretations of the federal rule persuasive authority. U.S. Fidelity and Guar. Co. v. Rodgers (1994), 267 Mont. 178, 181-82, 882 P.2d 1037, 1039. Federal coruts that have addressed altered deposition testimony have overwhelmingly concluded that a witness may make “any changes in form or substance which the witness desires, even if the changes contradict the original answers or even if the deponent’s reasons for making the changes are unconvincing.” Lugtig v. Thomas (N.D. Ill. 1981), 89 F.R.D. 639, 641 (citations and punctuation omitted). See also Podell v. Citicorp Diners Club (2nd Cir. 1997), 112 F.3d 98, 103. In Lugtig, the court delineated the following procedure for admitting a deposition that contains changes: The original answer to the deposition questions will remain part of the record and can be read at trial. [Citations omitted.] Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made. In fact, the Rule’s instruction that the changes be made “upon the deposition” implies that the original answers will remain. Policy also supports that conclusion. The witness who changes his testimony on a material matter between the giving of his deposition and his appearance at trial may be impeached by his former answers, and the cross-examiner and the jury are likely to be keenly interested in the reasons he changed his testimony. There is no apparent reason why the witness who changes his mind between the giving of the deposition and its transcription should stand in a better case. Wright v. Miller, General Practice & Procedure § 2118. Lugtig, 89 F.R.D. at 641-42. ¶44 We hold that the above statements set forth a correct application of Rule 30(e), M.R.Civ.P., and conclude that the District Court properly admitted Dr. Hastetter’s entire deposition into evidence. However, because certain alterations or elaborations Dr. Hastetter made to his deposition answers conflict with his original testimony and his death foreclosed the opposing party’s right to cross-examine him at trial, an issue arises regarding the evidentiary value of these substantive changes. ¶45 Albert cites to J.H. Harvey Company v. Reddick (Ga. 1999), 522 S.E. 2d 749, for the proposition that unresolved contradictions between original deposition testimony and corrections to the deposition are to be construed against a party-deponent. In interpreting § 9-ll-30(e), Georgia Code Ann., which includes the same provision for deposition change as Rule 30(e), M.R.Civ.P., the Harvey court concisely summarized the reasoning of the federal courts as follows: There are several important safeguards which curtail abuse [of the right to amend a deposition] on the part of the deponent. First, the deponent’s original answers remain part of the record and can be read at trial to impeach the witness or for further clarification. (Citation omitted.) Lugtig, supra at 641. This is because “a deposition is not a ‘take home examination’ and an ‘errata sheet’ will not eradicate the import of previous testimony taken under oath.”Rois v. Welch, 856 F. Supp. 1499, 1502 (D.Kan. 1994), aff'd, Rois v. Bigler, 67 F.3d 1543 (10th Cir. 1995). Second, if the changes are “so substantial as to cause the deposition to become incomplete or useless without further testimony,” then the examiner may reopen the deposition and propound further questions to the witness concerning the nature and reason for the changes. Allen & Co.[v. Accidental Petroleum Corp. (S.D.N.Y. 1970), 49 F.D.R. 337] at 341; see also Lugtig, supra at 642. J.H. Harvey Company, 522 S.E. 2d at 755. The Georgia court held that where the deponent is a party, his self-contradictory, vague or equivocal testimony must be construed against him and cannot create an issue of fact for the purpose of summary judgment unless the conflicts are adequately explained. J.H. Harvey Company, 522 S.E. 2d at 755. ¶46 Dr. Hastetter’s deposition similarly challenged the District Court with conflicting evidence without the benefit of witness cross-examination. Because any out-of-court statement by a party is an admission, when substantive changes or contradictions exist between the original and corrected deposition that are not adequately explained by the deponent, additional testimony before the trier of fact may be necessary to resolve the evidentiary conflicts. The right to cross-examine witnesses is fundamental to our judicial process. To guard against abuse of the right to make substantive changes to deposition testimony when the opposing party is not present, the opposing party has the right to cross-examine the deponent at trial. In the event that a party-deponent is unavailable to address apparent conflicts in amended deposition testimony, the district courts must exercise sound discretion in weighing the value of the evidence. Rather than direct our courts to construe conflicting testimonial evidence in any particular manner, we have consistently stated that the district courts are in the best position to observe and judge the credibility of witnesses and we will not second guess a court’s determination regarding the strength and weight of conflicting testimony. Renner, ¶ 12 (citing Double AA Corp. v. Newland & Co. (1995), 273 Mont. 486, 494, 905 P.2d 138, 142). ¶47 This Court also recognizes the importance of spontaneous deposition testimony. Depositions serve a purpose distinct from interrogatories, which anticipate deliberate responses. For example, we held in Hart-Albin Co. v. McLees, Inc. (1994), 264 Mont. 1, 870 P.2d 51, that portions of a videotaped deposition of a party could be entered into evidence at trial in order to “allow the jury to observe frank and unrehearsed answers to questions.” Hart-Albin, 264 Mont. at 8, 870 P.2d at 55. ¶48 The following excerpts from Dr. Hastetter’s original and amended testimony discuss Hastetter’s neighborly accommodation for Albert’s use of the road crossing the Trust’s properties: Original answer: Q. “Well, what neighborly things did you do?” A. “None.” Changed answer: A. I suspected at various times, Mr. Lewis Albert crossed my lands to go to his land, and I thought it was neighborly that I would allow him to cross my lands, though I have no personal knowledge of Mr. Albert crossing my lands on the trail. Throughout the years at various times, I had the Division fence repaired between my lands and Mr. Albert’s land, and allowed cattle being grazed upon his land, to cross onto my land for water. I have thought of these things after the Deposition, and add them to my answer. Original answer: Q. “In your answer you say that you allowed Mr. Albert to use the road?” A. “I didn’t allow him. I didn’t disallow him.” Changed answer: A. I didn’t speak to Mr. Albert about his using the trail across my land. I thought it was just neighborly to allow him to use the trail if he needed to get to his land. It was just neighborly, for him to pass through my lands to get to his land. Original answer: Q.”You said you didn’t allow him or disallow him. You did nothing about his use of the roadway, is that correct?” A. “He used it. It was good neighbors-.” Changed answer: A. I never discussed with Mr. Albert his using the trail on my lands to get to his land, until I received a request from his attorney Mrs. Savage, and Mr. Albert’s use of the trail, was okay by me, as a neighbor. I disagree that I knew at anytime Mr. Albert would be claiming his use would be adverse to my ownership, or possession. I was accommodating to Mr. Albert, and Mr. Albert never discussed with me using the trail adverse or hostile to my ownership as the Trustee or Owner. ¶49 The only explanation Dr. Hastetter offered for the changes on the correction sheets was, “I have thought of these things after the Deposition and add them to my answer.” The District Court found Dr. Hastetter’s amended testimony substantively altered his original responses, and stated: Although Dr. Hastetter in his deposition corrections indicates he thought it was just neighborly to allow use of the trail, the Court views such statement with great distrust since it is placed on a correction page, not subject to cross-examination and conflicts with the answers that were given during the deposition itself. ¶50 Albert testified that hard feelings developed between the parties from the beginning of Hastetter’s ownership of the land adjacent to Albert’s pasture. Disputes arose over Albert’s use of water from Hastetter’s dammed reservoir, run-off from Hastetter’s reservoir that flooded Albert’s well house, and Dr. Hastetter’s refusal to contribute to the repair of the fence between the properties. Albert also testified that Dr. Hastetter called him a number of times to retrieve wandering . stock from Hastetter’s land without first checking the cattle brands to discover the animals did not belong to Albert. The parties never socialized and never helped one another with branding, cattle moving or fence maintenance. In his original deposition, Dr. Hastetter testified that he was not aware of anything that Albert had done for him “except sue me.” ¶51 Rather than finding Albert used the roadway with Hastetter’s tacit permission under a theory of neighborly accommodation, the District Court found the “better evidence to be that Albert used the roadway because he wanted to and no one ever stopped him from doing so.” Where substantial credible evidence supports the trial court’s findings, we will sustain the findings on appeal because the trial court is in the best position to weigh the evidence, assess the credibility of witnesses and determine whether use was prescriptive or permissive in the face of a claim of neighborly accommodation. Swandal Ranch Co. v. Hunt (1996), 276 Mont. 229, 236, 915 P.2d 840, 844-45; Warnack, 278 Mont. at 83-84, 923 P.2d at 1089-90; Rafanelli, 278 Mont. at 33, 924 P.2d at 246. ¶52 Dr. Hastetter was not available to explain to the court the reasons for the extensive changes he made to his deposition testimony. Without the opportunity to cross-examine the witness, the court appropriately exercised its discretion in dismissing the theory of neighborly accommodation based on the weight of the evidence presented at trial, which depicted neither a friendly nor helpful relationship between Albert and Dr. Hastetter. We conclude that the District Court did not abuse its discretion by viewing Dr. Hastetter’s deposition changes with “great distrust” when the amended answers contradicted or conflicted with Dr. Hastetter’s original testimony. CONCLUSION ¶53 We hold the District Court’s conclusion that a prescriptive easement enured to the benefit of Albert’s half-section pasture is supported by clear and convincing evidence. We note that the court correctly delineated the statutory five-year period of adverse use as commencing when Albert took possession of his pasture and began to use the road regularly in 1958. Accordingly, Albert gained legal title to the easement prior to the purchase of the servient tenement by Dr. Hastetter. Consequently, the claim that Albert’s use had been with Hastetter’s permission is without legal significance. The designation of the statutory period beginning in 1958 was overlooked on appeal by both parties and does not affect the judgment. ¶54 Affirmed. JUSTICES LEAPHART, TRIEWEILER, REGNIER and RICE concur.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 Donald, the natural father of L.M.A.T. and B.L.F.T., appeals from two Nineteenth Judicial District Court orders that were entered during child protection proceedings for his daughters. Although the State had petitioned for permanent legal custody and termination of parental rights, following the evidentiary hearing, the District Court did not proceed on the issue of termination, but rather entered an order adjudicating L.M.A.T. and B.L.F.T. as youths in need of care and granting the Department of Public Health and Human Services (DPHHS) temporary legal custody for six months. The court also granted DPHHS the authority to forego reunification efforts with Donald. On appeal, Donald contends he did not receive proper notice of the proceedings prior to the filing of the State’s Petition for Permanent Legal Custody and Termination of Parental Rights with Right to Consent to Adoption (hereinafter, Petition for Permanent Legal Custody) and alleges the State’s Petition for Permanent Legal Custody and the District Court’s order granting DPHHS temporary legal custody did not meet statutory notice requirements. Donald also contends the District Court failed to conduct a timely show cause hearing following the State’s Petition for Permanent Legal Custody and appeals the District Court’s order authorizing DPHHS to forego reunification efforts with him, arguing that the court failed to make sufficient findings. We affirm. ¶2 Donald presents the following issues on appeal: 1. Whether failure to personally serve the father, who was incarcerated in another state, with notice of proceedings prior to filing a petition for permanent legal custody and termination of parental rights constitutes reversible error; 2. Whether the petition for permanent legal custody and subsequent order granting temporary legal custody, contained the required statutory notices; 3. Whether the District Court failed to conduct a timely show cause hearing; and 4. Whether the District Court erred when it granted the State’s request for determination that preservation or reunification services for the father were unnecessary. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Following reports of abuse and neglect, the State filed a Petition for Temporary Investigative Authority (TIA) and Protective Services on November 17,2000, and L.M.A.T. and B.L.F.T. were removed from their mother’s home. L.M.A.T. (now 5 years old) and B.L.F.T. (nearly 3 years old) remain in foster care where they have been since December of 2000. Throughout these proceedings, Donald has been incarcerated in Washington State, having been found guilty on March 2, 2000, of the attempted rape of a child in the second degree. ¶4 On November 21,2000, a Summons and Order to Show Cause and a copy of the November 17, 2000 Petition for TIA were served on Donald by mail at a corrections facility in Airway Heights, Washington. Following a show cause hearing on December 4, 2000, during which the children’s mother, Catherine, did not oppose the TIA petition, the District Court entered an order granting TIA to DPHHS for 90 days. The accompanying Certificate of Service listed Donald’s address as “unknown,” and the record is not clear whether he received a copy of this December 6, 2000 order. ¶5 Following a review hearing on February 26, 2001, the District Court continued the TIA for two weeks, and re-set the hearing for March 12,2001. A copy of the District Court order continuing the TLA was served on Donald by mail at a corrections facility in Aberdeen, Washington. On March 2, 2001, the State filed a Petition for Temporary Legal Custody. On that same day, Donald was served by mail at the Aberdeen facility with a Summons and Order to Show Cause for the March 12, 2001 hearing, and also copies of the Petition for Temporary Legal Custody and the proposed treatment plan for Catherine. ¶6 After another continuance, the review hearing commenced on March 19, 2001, during which Catherine agreed to the Petition for Temporary Legal Custody and her treatment plan. On March 21,2001, the District Court entered an Order Granting Temporary Legal Custody to DPHHS for a six-month period. A Certificate of Service, dated March 26, 2001, indicates this order and a copy of Catherine’s treatment plan were served on Donald by mail at his Aberdeen address. ¶7 At a review hearing on September 17, 2001, the State requested a 90-day extension of temporary legal custody, since it intended to file for permanent legal custody. The District Court granted the extension and appointed indigent counsel for Catherine. On September 18,2001, the State filed the Petition for Permanent Legal Custody, and attached a copy of Donald’s Judgment and Sentence and Warrant of Commitment from Washington. Also on September 18, 2001, Amy Guth, who had been acting as Guardian Ad Litem for L.M.A.T. and B.L.F.T. since November 20, 2000, filed a Motion to Appoint Counsel, requesting that she be appointed to represent Donald pursuant to the public defender contract. The District Court granted this motion the next day. ¶8 The District Court entered an order on September 19, 2001, granting continued temporary legal custody to DPHHS for a period of 90 days. This order was served on Donald by mail at his Aberdeen address. On that same day, the District Court also issued a Summons and Order to Show Cause relating to the State’s Petition for Permanent Legal Custody, setting the hearing date for November 5, 2001. The Summons and Order to Show Cause was personally served on Donald at the Aberdeen correction facility on October 2, 2001. Donald’s appointed counsel was served by mail with copies of the Summons and Order to Show Cause and the Petition for Permanent Legal Custody on September 19, 2001. ¶9 During the show cause hearing on November 5, 2001, Catherine was prepared to relinquish her rights as to B.L.F.T., but wished to continue her treatment plan and possibly reunite with L.M.A.T. Donald’s counsel also appeared, and represented that Donald contested termination of his parental rights as to both girls. Donald’s counsel also informed the court that Donald would be incarcerated in Washington until 2004, at which time he would presumably be eligible for parole. On November 8,2001, the District Court granted continued temporary legal custody and scheduled the hearing on the State’s Petition for Permanent Legal Custody for January 4, 2002. ¶10 Catherine did not appear on January 4, 2002, so the District Court vacated the hearing date and continued temporary legal custody pending further adjudication of whether L.M.A.T. and B.L.F.T. were youths in need of care. At this time, a letter from Donald was filed with the court, wherein he expressed an interest in reuniting with his children upon release from prison. ¶11 On January 24, 2002, the State filed a Request for Determination, asking the District Court to determine that preservation or reunification services need not be provided as they relate to Donald. The State based its request on Donald’s conviction for attempted rape of a child in the second degree and his continued incarceration in Washington. ¶12 The hearing on the State’s Petition for Permanent Legal Custody was held on January 24, 2002. At the hearing, Donald’s counsel objected to the proceedings as untimely. The court overruled the objection and upon the request of the State and in light of our recent decision, In re T.C., 2001 MT 264, 307 Mont. 244, 37 P.3d 70 (district court improperly terminated parent’s rights without first adjudicating whether children were youths in need of care), the hearing proceeded on allegations that the children were youths in need of care and request for temporary legal custody to DPHHS. ¶13 During the hearing, Beverly Miller (Miller), a social worker on the case, explained that DPHHS requested that it be excused from providing preservation or reunification services for Donald because B.L.F.T. had never seen Donald and Donald could not work on beginning a relationship with either child until he was released. Miller testified that Donald was convicted in Washington for attempted sexual intercourse with an unrelated thirteen year old. Miller told the court that Donald was sentenced to 89 months, and after credit for time served, he had 78 months (six years, six months) to serve beginning April 2000, and thus would not be discharged from his sentence until 2006. Miller also explained that if the children had to wait until Donald was available to begin parenting, the children’s foster parents may not form necessary attachments, which would lead to less bonding for the children and a loss of trust. The court received copies of Donald’s Washington Judgment and Sentence and Warrant of Commitment, which indicated he was arrested on June 4,1999 and convicted on March 2, 2000. Donald remains incarcerated in Washington, serving his sentence. Donald’s counsel presented no evidence and at the end of the hearing, moved to dismiss on grounds of failure of proof. The court denied the motion ¶14 On January 30, 2002, the District Court entered an Order Authorizing Department to Forego Reunification Efforts with Donald, noting that Donald’s conviction of attempted rape of a child in the second degree was an “aggravated circumstance,” as defined in § 41-3-423, MCA (2001). The District Court also entered an order adjudicating L.M.A.T. and B.L.F.T. as youths in need of care and granting temporary legal custody to DPHHS for six months. It is from these two orders that Donald appeals. The children’s mother has not appealed any of the protection proceedings. STANDARD OF REVIEW ¶15 This Court reviews a district court’s findings of fact to determine whether the findings are clearly erroneous. See In re A.M., 2001 MT 60, ¶ 33, 304 Mont. 379, ¶ 33, 22 P.3d 185, ¶ 33 (citing In re J.N., 1999 MT 64, ¶ 11, 293 Mont. 524, ¶ 11, 977 P.2d 317, ¶ 11). 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 the district court made a mistake. In re A.M., ¶ 33 (citation omitted). This Court reviews a district court’s conclusions of law to determine whether the court interpreted the law correctly. In reA.M., ¶ 33 (citation omitted). We review transfer of a child’s custody from his or her parents to DPHHS for abuse of discretion since such a transfer of custody is dependent upon an initial discretionary determination that the child is abused or neglected. See Matter of Custody of J.H., 1998 MT 128, ¶ 15, 289 Mont. 111, ¶ 15, 958 P.2d 1191, ¶ 15 (citing Matter of C.M. (1997), 281 Mont. 183, 186, 932 P.2d 1063, 1065). DISCUSSION Issue 1 ¶16 Does failure to personally serve the father, who was incarcerated in another state, with notice of proceedings prior to filing a petition for permanent legal custody and termination of parental rights constitute reversible error? ¶17 Donald argues that the State failed to properly serve him with notice of any of the proceedings prior to the State’s Petition for Permanent Legal Custody, which was filed on September 18,2001, and served on his appointed counsel, September 19, 2001 (Donald was personally served on October 2, 2001, with the District Court’s September 19, 2001 Summons and Order to Show Cause on the Petition for Permanent Legal Custody). Donald contends those previous proceedings were therefore void as applied to him because he received notice of those prior proceedings by mail, not by personal service. In support of his contention, Donald cites §§ 41-3-422(4)-(7), MCA (2001) . Section 41-3-401, MCA (1999), provides in relevant part: (3) A petition alleging abuse or neglect is a civil action brought in the name of the state of Montana. The Montana Rules of Civil Procedure apply except as modified in this part. Proceedings under a petition are not a bar to criminal prosecution. (4) The parents or parent, guardian, or other person or agency having legal custody of the youth named in the petition, if residing in the state, must be served personally with a copy of the petition and summons at least 5 working days before the date set for hearing. If the person or agency cannot be served personally, the person or agency may be served by publication in the manner provided by the Montana Rules of Civil Procedure for other types of proceedings. ¶18 In interpreting a statute, we first look to the plain meaning of the words it contains. City of Great Falls v. DPHHS, 2002 MT 108, ¶ 16, 309 Mont. 467, ¶ 16, 47 P.3d 836, ¶ 16 (citation omitted). Section 41-3-401(4), MCA (1999) (now renumbered at § 41-3-422(6), MCA (2001)), provides that personal service is required for parents “if residing in the state.” At no time during these proceedings has Donald resided in Montana. Therefore, the State was not required under § 41-3-401(4), MCA (1999), to personally serve Donald in these proceedings. While these provisions do not specify what method of service is required for parents living outside the State, we conclude, and the State concedes, that when the whereabouts of parents or guardians having legal custody are known, the better practice is to personally serve them with a copy of all petitions in accordance with § 41-3-422, MCA (2001). ¶19 While we stress the importance of proper notice in all child protection proceedings and recognize that Donald received personal service of these proceedings only once, that is not dispositive of the issue before us. The District Court orders that Donald seeks to invalidate would include those orders granting and continuing the TIA and those orders granting and extending temporary legal custody to DPHHS. Although Catherine, who had physical custody of the children, disputed some of the factual allegations, she did not oppose the State’s petition for TIA, and agreed to the petition for temporary legal custody and her treatment plan. At the September 17, 2001 hearing, Catherine did not object to the State’s request to continue temporary legal custody, but stated she would contest termination of parental rights. Donald was incarcerated at all times during these proceedings. Therefore, it would have been impossible for him to exercise his legal custodial rights to parent L.M.A.T. and B.L.F.T. during this time frame. ¶20 Moreover, while the evidentiary hearing on January 24,2002, was initially set to consider the State’s Petition for Permanent Legal Custody and Termination of Parental Rights, the District Court did not make such a determination, but rather adjudicated the children as youths in need of care and granted DPHHS temporary legal custody for a six-month period. The court recognized our recent holding from In re T, C., where we held that a stipulation to temporary legal custody is not the equivalent of a stipulation that a child is a youth in need of care, and without such a specific adjudication, a district court cannot terminate parental rights. See In re T.C., ¶¶ 18-19. Significantly, the District Court has not ordered termination of either parent’s rights in any of these proceedings. The court scheduled a hearing on the Petition for Permanent Legal Custody and Termination of Parental Rights for July 16, 2002. The court also set a permanency hearing for February 22, 2002, in light of its determination that DPHHS could forego reunification efforts with Donald. However, this hearing date has since been vacated by the District Court, since it was divested of jurisdiction upon Donald’s appeal to this Court. ¶21 This Court has repeatedly stated that “no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless.” In re J.M., 2001 MT 51, ¶ 16, 304 Mont. 303, ¶ 16, 21 P.3d 618, ¶16 (citing In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, ¶ 55, 995 P.2d 427, ¶ 55). We conclude that Donald failed to demonstrate how personal service of the proceedings prior to the Petition for Permanent Legal Custody would have significantly impacted these proceedings. Nor has Donald shown that invalidation of any of the proceedings would have a significant impact on his parental rights, since none of the proceedings prior to the .State’s Petition for Permanent Legal Custody sought to terminate Donald’s parental rights, and neither parent’s rights have been terminated by the. District Court. Moreover, formal adjudication of the children as youths in need of care did not occur until January of 2002, at which time Donald had been personally served and was represented by counsel. Accordingly, we conclude that failure to personally serve Donald notice of those proceedings prior to filing the Petition for Permanent Legal Custody was not reversible error. Issue 2 ¶22 Did the petition for permanent legal custody and subsequent order granting temporary legal custody, contain the required statutory notices? ¶23 Donald argues that because the State’s Petition for Permanent Legal Custody and the District Court’s January 30,2002 orders did not contain the notices mandated by §§ 41-3-422(13) and (14), MCA (2001), they are invalid and cannot be enforced. Subsection (13) requires DPHHS, when serving a petition in an abuse and neglect proceeding, to advise parents or legal guardians of their right to counsel and right to contest the allegations, as well as the required timeliness for hearings. See § 41-3-422(13), MCA (2001). Similarly, when a District Court issues an order in an abuse and neglect proceeding, it is required to include notice concerning statutory requirements for timeliness of hearings, presumptions of the best interests of the child, and that completion of a treatment plan does not guarantee return of a child. See § 41-3-422(14), MCA (2001). ¶24 However, these subsections were not applicable to the child protection proceedings concerning L.M.A.T. and B.L.F.T. When the 2001 Legislature added subsections (13) and (14) to § 41-3-422, MCA, it provided the following savings clause: “This act does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before the effective date of this act.” See 2001 Mont. Laws Ch. 281, Sec. 19. The Compiler’s Comments for § 41-3-422, MCA (2001), indicate the effective date of the Chapter 281 Amendments was October 1, 2001. Therefore, because the child protection proceedings for L.M.A.T. and B.L.F.T. were initiated by the State’s Petition for TLA and Protective Services on November 17, 2000, §§ 41-3-422(13) and (14), MCA (2001), were not applicable. Accordingly, neither the State nor the District Court committed reversible error by omitting the notice provisions. Issue 3 ¶25 Did the District Court fail to conduct a timely show cause hearing? ¶26 Donald argues that under § 41-3-432, MCA (2001), the District Court was required to conduct a show cause hearing within ten days of September 18, 2001, the day the State filed its Petition for Permanent Legal Custody. Section 41-3-432(l)(a), MCA (2001), provides that “[a] show cause hearing must be conducted within 10 days, excluding weekends and holidays, of the filing of an initial child abuse and neglect petition unless otherwise stipulated by the parties pursuant to 41-3-434 or unless an extension of time is granted by the court.” Donald contends that, since the District Court’s Summons and Order to Show Cause on the Petition for Permanent Legal Custody was the first document personally served on him, the petition qualified as the “initial” pleading as contemplated by the statute, and thus he argues the court’s hearing on November 5,2001, was held well past the ten-day requirement. ¶27 We conclude that the petition for permanent legal custody and termination of parental rights did not constitute an “initial” filing. Here, the initial filing was the State’s Petition for TIA and Protective Services, filed on November 17, 2000. Accordingly, § 41-3-403(l)(c), MCA (1999), applied. It provides that upon the filing of a petition for temporary investigative authority and protective services, the court must conduct a show cause hearing within twenty days of issuing an order granting relief as required for the immediate protection of a child. Section 41-3-403(l)(c), MCA (1999). Following the State’s petition for TIA and protective services, the District Court conducted a show cause hearing on December 4, 2000, which fell within the twenty-day requirement mandated by § 41-3-403(l)(c), MCA (1999). ¶28 Moreover, the statute Donald relies on, § 41-3-432, MCA (2001), became effective on October 1,2001. See Compiler’s Comments, § 41-3-432, MCA (2001). Therefore, even if we accept Donald’s argument that the Petition for Permanent Legal Custody was the “initial” filing, § 41-3-432, MCA (2001), would not apply, since it was not in effect when the State filed the petition on September 18, 2001. ¶29 For the foregoing reasons, we conclude the District Court did not fail to conduct a timely show cause hearing. Issue 4 ¶30 Did. the District Court err when it granted the State’s request for determination that preservation or reunification services for the father were unnecessary? ¶31 Generally, DPHHS must make reasonable efforts to reunite a family after the children have been removed from the home. See § 41-3-423(1), MCA (2001) (formerly § 41-3-403(2), MCA (1999)). However, a district court “may make a finding that [DPHHS] need not make reasonable efforts to provide preservation or reunification services if the court finds that the parent has subjected a child to aggravated circumstances, including but not limited to abandonment, torture, chronic abuse, or sexual abuse or chronic, severe neglect of a child.” Section 41-3-423(2)(a), MCA (2001) (formerly § 41-3-403(2)(a), MCA (1999)). ¶32 In 2001, the Legislature added that a court’s “finding that preservation or reunification services are not necessary pursuant to this section must be supported by clear and convincing evidence.” See 2001 Mont. Laws Ch. 281, Sec. 8, adding § 41-3-423(4), MCA (2001). However, like §§ 41-3-422(13) and (14), MCA (2001), (See ¶ 24 herein), this amendment did not affect rights and duties related to proceedings that began prior to the October 1, 2001 effective date, and therefore would not apply in these child protection proceedings. While § 41-3-403(2), MCA (1999), allowed a district court to make a finding regarding the necessity of preservation and reunification efforts, it did not provide any guidance as to the State’s burden of proof. ¶33 It is well-established that a natural parent’s right to care and custody of his child is a fundamental liberty interest which must be protected by fundamentally fair procedures. See In re A.C., 2001 MT 126, ¶ 20, 305 Mont. 404, ¶ 20, 27 P.3d 960, ¶ 20 (citations omitted). Accordingly, in regard to the statutorily-required findings supporting termination of parental rights, we have stated that the burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In reA.C., ¶ 20 (citation omitted). While we recognize that in these proceedings neither parent’s rights have been terminated, we conclude that because a court’s determination that reunification services are not required may necessarily impact termination of a parent’s rights, the district court’s findings under § 41-3-403(2), MCA (1999), must be supported by clear and convincing evidence. In cases involving the termination of parental rights, clear and convincing proof is simply a requirement that a preponderance of the evidence be definite, clear, and convincing, or that a particular issue must be clearly established by a preponderance of the evidence or by a clear preponderance of proof. This requirement does not call for unanswerable or conclusive evidence. The quality of proof, to be clear and convincing, is somewhere between the rule in ordinary civil cases and the requirement of criminal procedure-that is, it must be more than a mere preponderance but not beyond a reasonable doubt. In re E.K., 2001 MT 279, ¶ 32, 307 Mont. 328, ¶ 32, 37 P.3d 690, ¶ 32 (citation omitted). ¶34 We have recently clarified that when reviewing a district court’s findings in a termination of parental rights case, even for clear and convincing evidence, the applicable standard of review remains the same; “[t]his Court reviews a district court’s findings that the statutory criteria supporting termination are met to determine whether those findings are clearly erroneous-that is, whether they are supported by substantial evidence, whether the district court misapprehended the effect of the evidence, or whether this Court is left with a definite and firm conviction that the district court made a mistake.” In reA.C., ¶ 36 (citations omitted). ¶35 We conclude that the District Court’s finding that DPHHS was not required to provide reunification services was supported by substantial and uncontroverted evidence. At the evidentiary hearing on January 24,2002, the District Court admitted copies of Donald’s Judgment and Sentence and Warrant of Commitment from Washington State, which provided clear and convincing evidence that Donald was convicted of attempted rape of a child in the second degree and was sentenced to a term of 89 months, with credit for time served. Without objection, the court heard testimony from Miller that Donald’s conviction was a result of him attempting to have sexual intercourse with a thirteen year old, and that he was not related to the victim. Miller also explained that waiting for Donald to discharge his sentence would negatively affect the required bonding the children needed. Donald did not present any evidence rebutting the assertions by Miller, nor did he assert that his Washington conviction was invalid or not yet final. ¶36 Contrary to Donald’s contentions, the State was not required to present evidence as to the finality of his conviction. In criminal appeals, we have consistently held that “prior convictions are presumptively valid, and a defendant who challenges the validity of his prior conviction during a collateral attack has the burden of producing direct evidence of its invalidity.” State v. Anderson, 2001 MT 188, ¶ 20, 306 Mont. 243, ¶ 20, 32 P.3d 750, ¶ 20 (citing State v. Okland (1997), 283 Mont. 10, 18, 941 P.2d. 431, 436) (lack of direct evidence as to a conviction’s validity is not sufficient to shift the burden to the State to prove validity). Nor was the State required to present evidence concerning the circumstances of the conviction. The plain language of § 41-3-403(2)(a), MCA (1999), allows a court to conclude preservation or reunification services are not required if it finds one of the criteria is met. Here, the court made the necessary finding that Donald’s conviction of attempted rape of a child in the second degree qualified as “subjecting] a child to aggravated circumstances.” Section 41-3-403(2), MCA (1999), includes “sexual abuse” of a child as an example of “aggravated circumstances.” We conclude that a conviction for attempted rape of a child met this definition, and the District Court’s findings were not clearly erroneous. ¶37 Accordingly, we conclude the District Court did not err when it granted the State’s request for determination that preservation or reunification services for Donald were unnecessary. ¶38 We affirm. CHIEF JUSTICE GRAY, JUSTICES NELSON, LEAPHART and RICE concur. Tn his reply brief, Donald asserts for the first time on appeal that the District Court did not have jurisdiction over Donald until he was personally served on October 2, 2001. We will not address an issue raised for the first time in a reply brief. See Unified Industries, Inc. v. Easley, 1998 MT 145, ¶ 28, 289 Mont. 255, ¶ 28, 961 P.2d 100, ¶ 28 (citations omitted); and Rule 23(c), M.R.App.P. Accordingly, we decline to address this argument. Except for subsection (5), which was inserted in 2001, these subsections were previously found at §§ 41-3-401(3)-(5), MCA (1999), and were renumbered and amended in some minor respects in 2001. We note that § 41-3-422, MCA (2001), became effective as of October 1, 2001, and accordingly, we will apply § 41-3-401, MCA (1999), for consistency with the remainder of this Opinion.
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JUSTICE REGNIER delivered the Opinion of the Court. ¶1 Darlyn, the birth-mother of J.M., appeals from the Findings of Fact and Conclusions of Law issued by the Thirteenth Judicial District Court, Yellowstone County, terminating her parental rights with respect to J.M. Darlyn contends that the District Court relied upon inadmissible evidence. We affirm. BACKGROUND ¶2 J.M. was born on April 13,1998. The Department of Public Health and Human Services (“DPHHS”) received a referral regarding J.M.'s birth indicating that Darlyn, J.M.'s mother, had a prior history with DPHHS and that she and J.M.'s birth father had intellectual disabilities. A little more than two weeks after J.M.'s birth, on April 29, 1998, the State filed a Petition for Temporary Investigative Authority and Emergency Protective Services with regard to J.M. In a Report to the Court, DPHHS informed the court that Darlyn had been placed in foster care in 1982 and had become pregnant by her step-father at a very young age. DPHHS also informed the court that J.M.'s father had been convicted of indecent liberties with a minor and had refused sex offender treatment while incarcerated. J.M. was removed from his parent's care immediately following his release from the hospital. ¶3 DPHHS entered into treatment plans with both parents on June 10,1998. The parents entered a second treatment plan on October 28, 1998, and a third treatment plan on January 19, 1999. On April 27, 1999, the State petitioned the court to terminate the parents' rights with respect to J.M. On March 24, 2000, the court issued its Findings of Fact, Conclusions of Law and Order terminating the birth parents' parental rights with respect to J.M. and granting DPHHS custody of J.M. The court concluded that the parents had not complied with the treatment plans and that their condition and conduct rendered them unfit or unable to provide J.M. with adequate care. Darlyn appeals. STANDARD OF REVIEW ¶4 We review trial court evidentiary rulings to determine whether the court abused its discretion. Estate of Silver, 2000 MT 127, ¶ 16, 299 Mont. 506, ¶ 16, 1 P.3d 358, ¶ 16. DISCUSSION ¶5 Did the District Court abuse its discretion when it admitted evidence of the parents' interaction with a “Baby Think It Over” doll? ¶6 During the September 23,1999, hearing on the State's petition to terminate parental rights, the State called Ron Walters, a DPHHS social worker who had been involved in J.M.'s case from May 1998 to April 1999. Walters testified that on October 26, 1998, DPHHS provided the parents with a “Baby Think It Over” doll. Walters stated that the doll contains a control module which simulates a baby's needs by crying and requiring care and is used to teach parents about the time demands of a baby. If the doll's “parent” does not insert a key and tend to the doll when the doll cries, the doll registers the incident as a neglect incident and records the total minutes of unattended crying. The control module is also programmed to respond to violent shaking or impact and records such episodes as “abuse incidents.” ¶7 As Walters began to testify about the results of J.M.'s parents' interaction with the “Baby Think It Over” doll, defense counsel for both parents raised objections. Darlyn's counsel argued that the State had not supplied sufficient foundation for the reliability of the doll. J.M.'s father's counsel argued that the failure rate of these dolls had not been provided. The State's attorney and J.M.'s guardian ad litem responded that the doll was not being introduced as a scientific investigation, but rather was information used by DPHHS to affirm or deny its concerns regarding the parenting abilities of J.M.'s parents and that the court could determine the value of the testimony. The court admitted Walters' testimony regarding the parents' interaction with the doll. ¶8 Walters testified that the parents had the doll from October 26 to October 29, 1998, without recording any abuse or neglect incidents. Walters stated that the parents' final visitation with the doll occurred on November 2, 1998. According to Walters, the control module recorded no neglect incidents but did record one abuse incident. Walters testified that the doll records a sharp blow or impact as an abuse incident. He discussed the incident with J.M.'s parents, who had no explanation for the incident. Walters was then asked whether there had been any problems with that particular doll or any erroneous recordings of such incidents. Walters responded, “Not to my knowledge. The doll belonged to Kathy Fox, and they [sic] had reported no problems.” ¶9 In its order terminating parental rights, the District Court stated: At the end of October 1998, the parents were provided with a “Baby Think it Over” doll, which is an infant simulator used in local high school parenting classes. It records incidents of neglect and significant abuse if not tended to. The simulator recorded an incident of abuse on November 2, 1998. The parents had no explanation for this. The doll did not show that it had been tampered with, and it had no problems with malfunctions after that time. At that time, the parents had completed over two months of hands-on parenting training. The infant simulator is by no means the sole basis of determining parenting abilities as it measures only a parent's ability or willingness to respond to an infant's time demands. It cannot measure other important things such as ability to feed a child, ability to assist the child in his development, nurturing, or other items important to parenting. ¶10 On appeal, Darlyn contends that the District Court erred when it admitted evidence regarding the “Baby Think It Over” doll. She argues that the State failed to provide sufficient foundation for the admission of this evidence, such as whether the doll was properly functioning at the time it was used and whether the results were reliable. Darlyn claims that this evidence is analogous to the results of polygraph examinations which have been held inadmissible due to their unreliability. The State offers no argument concerning the admissibility of evidence of the parents' interaction with the “Baby Think It Over” doll. ¶11 The disputed testimony regarding the “Baby Think It Over” doll can be summed up as follows: The doll recorded an abuse incident. An abuse incident consists of an incident in which the doll suffered a sharp blow. The parents offered no explanation for the fact that the doll recorded an abuse incident. Lastly, Walters was not aware that the doll had ever malfunctioned. ¶12 We decline to address Darlyn's contention that testimony concerning the “Baby Think It Over” doll should be inadmissible as a matter of law because it is somehow analogous to a polygraph examination. However, we will address Darlyn's contention that the State failed to provide sufficient foundation for the admission of this evidence. ¶13 Evidence which is not relevant is not admissible. Rule 402, M.R.Evid. Relevant evidence is defined as “evidence 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.” Rule 401, M.R.Evid. Therefore, evidence that the doll recorded an abuse incident was admissible if it tended to make the existence of a consequential fact more probable. See 2 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 401.04(2)(b) (Joseph M. McLaughlin, ed., 2d ed. 2000) (stating that “[t]he question to be asked in determining the relevance of evidence is whether a reasonable person might believe the probability of the truth of the consequential fact to be different if that person knew of the proffered evidence”). ¶14 What consequential fact was the State attempting to establish by introducing testimony that the “Baby Think It Over” doll recorded an incident of abuse? The State's petition for termination alleged that the parents had not complied with their treatment plans and that the treatment plans were not successful. The State also alleged that the conduct or condition rendering the parents unfit, unable or unwilling to give J.M. adequate parental care appeared unlikely to change within a reasonable time. The doll's recordation of an abuse incident would only tend to establish these consequential facts if the State had supplied the court with a reason to believe that the doll's recordation of an abuse incident reflected the actual occurrence of abuse by one of the parents. However, the only evidence the State presented regarding the doll's reliability was the following colloquy between Walters and counsel for the State: Q. Have there been any other problems with that doll or [evidence of the doll] falsely or erroneously recording such incidents? A. Not to my knowledge. The doll belonged to Kathy Fox, and they [sic] had reported no problems. ¶15 The State did not supply sufficient foundation for the admission of testimony regarding the abuse incident recorded by the “Baby Think It Over” doll because the State failed to produce evidence of the doll's reliability. Given the scarcity of the State's evidence regarding the doll's reliability, it would be just as reasonable for the court to assume that the doll simply malfunctioned. Therefore, the fact that the doll recorded an incident of abuse was irrelevant and thus inadmissible. It was not probative of the fact that the parents' treatment plans were not successful nor was it probative of the fact that the conduct or condition rendering them unfit was unlikely to change. We hold that the District Court abused its discretion in admitting this testimony. ¶16 An abuse of discretion in an evidentiary ruling, however, does not necessarily constitute reversible error. In re A.N., 2000 MT 35, ¶ 55, 298 Mont. 237, ¶ 55, 995 P.2d 427, ¶ 55. We have repeatedly stated that “no civil case shall be reversed by reason of error which would have no significant impact upon the result; if there is no showing of substantial injustice, the error is harmless.” In re A.N., ¶ 39. We have also stated that “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., ¶ 55. ¶17 Darlyn maintains that the admission of this evidence should be considered reversible error because the District Court specifically referred to it in its findings of fact. Darlyn also argues that the introduction of this evidence was “fundamentally unfair.” The State responds that there is an overwhelming abundance of evidence in the record supporting the District Court's decision.to terminate parental rights. ¶18 We do not believe that the admission of this evidence was “fundamentally unfair” nor do we believe that its admission constituted reversible error simply because the court referred to it in its findings of fact. Rather, the issue is whether the error had a “significant impact upon the result.” In re A.N., ¶ 39. We agree with the State that the evidence did not have a significant impact upon the court's termination of parental rights. The State offered the court with an abundance of evidence demonstrating that Darlyn's parenting abilities were inadequate. ¶19 The court may order termination of the parent-child legal relationship upon a finding that the child is an adjudicated youth in need of care and both of the following exist: (1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and (2) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time. Section 41-3-609, MCA. The burden is on the party seeking termination to demonstrate by clear and convincing evidence that every requirement set forth in the statute has been satisfied. In re P.M., 1998 MT 264, ¶ 12, 291 Mont. 297, ¶ 12, 967 P.2d 792, ¶ 12. We review a district court's finding that the State demonstrated by clear and convincing evidence that the statutory criteria governing the termination of parental rights were satisfied to determine whether that finding was clearly erroneous. In re A.N., ¶ 22. ¶20 The State presented sufficient evidence to support the determination that Darlyn's court approved treatment plans were neither complied with nor successful. For instance, Merry Richmond, a DPHHS social worker who was assigned to Darlyn's case in May 1999, testified that Darlyn did not successfully comply with her treatment plans because she did not prove that she was capable of providing a safe and stable family environment or providing minimally adequate parenting. Richmond agreed that Darlyn was consistently choosing a relationship with a sex offender who refused treatment even though she knew it could result in the termination of her parental rights. Richmond believed that Darlyn was willing to put her child at risk. ¶21 The State presented sufficient evidence to support the determination that the conduct or condition of Darlyn rendering her unfit is unlikely to change within a reasonable time. For instance, Dr. Donna Veraldi, a clinical psychologist who performed a psychological evaluation of Darlyn, stated that Darlyn had a history of trauma and cognitive delays and that it is hard for her to identify problems and to find solutions to problems. ¶22 We hold that the District Court properly determined that Darlyn had not successfully complied- with her treatment plans and that the conduct or condition rendering Darlyn unfit to parent J.M. was not likely to change within a reasonable time. Accordingly, we hold that, although the District Court abused its discretion in admitting testimony concerning the “Baby Think It Over” doll, that error was harmless. ¶23 Affirmed. CHIEF JUSTICE GRAY, JUSTICES NELSON, TRIEWEILER and LEAPHART concur.
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JUSTICE REGNIER delivered the Opinion of the Court. ¶1 Tara Koestner was convicted of reckless driving in the Kalispell Municipal Court. She appealed her conviction and a pre-trial order denying her request for a jury trial. The District Court, Eleventh Judicial District, Flathead County, concluded that it did not have jurisdiction to consider the appeal and affirmed the Kalispell Municipal Court's order. Koestner presents the following issues on appeal: 1. Did the District Court err when it concluded that it had no jurisdiction to consider Koestner's appeal from the Kalispell Municipal Court? 2. Did the District Court err when it subsequently affirmed the Kalispell Municipal Court's order denying Koestner's request for a jury trial? ¶2 We affirm. BACKGROUND ¶3 On August 7, 1999, Tara Koestner, age 15, was cited for Reckless Driving, in violation of § 61-8-301, MCA, after her vehicle overturned in Lawrence Park within the city of Kalispell, Montana. ¶4 On September 15,1999, an Omnibus Hearing was held before the Kalispell Municipal Court. Koestner appeared at the hearing and requested a jury trial, which was set for November 9,1999. On October 21, 1999, the City of Kalispell moved for a continuance due to a scheduling conflict of a witness. The matter was reset for jury trial on Tuesday, December 21, 1999. ¶5 On Friday, December 17, 1999, Koestner, accompanied by her father, verbally requested a continuance because of a family emergency. Apparently, Koestner was informed by the prosecutor that the City would not object to the request if she waived her right to a jury trial and agreed to a bench trial. Koestner was granted the weekend to make her decision. On Monday, December 20, 1999, Koestner signed a Waiver of Jury Trial. The Court granted a continuance and reset the matter for a bench trial on February 3, 2000. ¶6 Koestner subsequently retained counsel and on January 19, 2000, moved the Kalispell Municipal Court for a continuance of the bench trial and notified the Court of an election for jury trial. The City objected to Koestner's jury demand. On January 21, 2000, the Kalispell Municipal Court issued an order denying both Koestner's motion to continue and her request for jury trial. The case proceeded to trial, and the Kalispell Municipal Court found Koestner guilty of Reckless Driving. Koestner received a sentence of a $175 fine, court costs of $20, and a witness fee of $10. ¶7 Koestner appealed both her conviction and the Court's order denying her request for a jury trial. The District Court concluded that it did not have jurisdiction to hear the appeal. Although it recognized that it did not have jurisdiction to consider the appeal, the District Court nevertheless pointed out in its order denying jurisdiction that the Kalispell Municipal Court's denial of Koestner's jury demand was correct. Koestner now appeals the order of the District Court. STANDARD OF REVIEW ¶8 The district court's determination of whether it has the power to review a municipal court's decision is a question of law which we review to determine whether its interpretation is correct. See City of Missoula v. Robertson, 2000 MT 52, ¶ 14, 298 Mont. 419, ¶ 14, 998 P.2d 144, ¶ 14. ISSUE ONE ¶9 Did the District Court err when it concluded that it had no jurisdiction to consider Koestner's appeal from the Kalispell Municipal Court? ¶10 Koestner contends that the District Court had jurisdiction to hear her appeal because, absent a valid Kalispell city ordinance addressing jurisdiction, Rule 1 of the Montana Uniform Municipal Court Rules of Appeal to District Court does not specifically limit the District Court's jurisdiction. The City contends that the District Court appropriately relied on Rule 1, U.M.C.R.App., in reaching its decision regarding its lack of jurisdiction. ¶11 The District Court correctly concluded that the Montana Uniform Municipal Court Rules of Appeal to the District Court, § 25-30-2100 to -2400, MCA, apply to appeals from a municipal court judgment. First, the District Court noted that an appeal from a municipal court to a district court is limited to a review of the record and to questions of law. Section 3-6-110, MCA. The District Court also stated that an appeal is further limited by Rule 1, U.M.C.R.App. Rule 1, in relevant part provides: (b) Limitation of appeals. Appeal from a municipal court judgment shall be limited by city ordinance in the following cases: (1) In civil causes, the ordinance shall require that a minimum amount in controversy shall exceed $1,000.00, before the district court has jurisdiction to hear the appeal. (2) In criminal causes, the ordinance shall require that a minimum amount in controversy, fine or restitution shall exceed $300.00 before the district court has jurisdiction to hear the appeal, except if the judgment includes incarceration, no minimum fine may be required for appeal. (3) Appeals may be taken in criminal cases as provided in §§ 46-20-103 and -104, MCA. ¶12 The fine imposed on Koestner by the Municipal Court was $175. No jail time was ordered. The District Court concluded that it was bound by the above statute, specifically Rule 1(b)(2), U.M.C.R.App., in determining whether it had jurisdiction to consider the appeal. Since Koestner was not incarcerated and her fine was less than $300, the District Court concluded it was without jurisdiction to hear the appeal. We agree. ¶13 Koestner argues on appeal that under the Montana Uniform Municipal Court Rules of Appeal to District Court, a city must have an ordinance in place to trigger the statutory minimum amount necessary to bring an appeal. Since the City never presented evidence that such an ordinance was in existence, she maintains that the District Court did have jurisdiction because § 3-6-110, MCA, provides that an appeal from the municipal court to the district court is “confined to review of the record and questions of law.” Koestner argues that § 3-6-110, MCA, does not include any words of limitation. ¶14 Koestner failed to raise this argument in the District Court and raises the issue for the first time on appeal. We will not entertain issues on appeal that were not raised in the initial appeal from municipal court to district court. See Robertson, ¶¶ 26-27. Thus, we conclude that the District Court properly determined that it could not hear Koestner's appeal because it did not reach the threshold amount in controversy as set forth in Rule 1(b)(2), U.M.C.R.App. ¶15 Koestner could have petitioned the District Court to accept jurisdiction notwithstanding the limitations of Rule 1(b)(2), U.M.C.R.App. Rule 3, U.M.C.R.App., provides that, in the interest of justice, a district court may consider an appeal from the municipal court regardless of the amount in controversy. No such petition was filed. Therefore, the District Court had no jurisdiction to hear this appeal. ISSUE TWO ¶16 Did the District Court err when it affirmed the Kalispell Municipal Court's order denying Koestner's request for a jury trial? ¶17 As stated above, the District Court was without jurisdiction to consider Koestner's appeal. Thus, any discussion of the District Court regarding the propriety of the Municipal Court's denial of her request for a jury trial is dicta and we decline to address it. ¶18 Affirmed. JUSTICES LEAPHART, TRIEWEILER, COTTER and NELSON concur.
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On March 2, 2000, the defendant was sentenced to the following: Count I: Five (5) years in the Montana State Prison; and Count II: Six (6) months in the Gallatin County Detention Center, to run consecutively with Count I. On August 25, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Brock Albin. The state was represented by Marty Lambert. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the unanimous decision of the Sentence Review Division that the sentence shall be amended to the following: Count I: five (5) year commitment to the Department of Corrections; the sentence imposed in Count II shall remain the same. It is the Board's recommendation to the Department of Corrections that the Defendant be screened for entry into the Treasure State Correctional Training Center. All of the conditions imposed by the trial court are affirmed, with the addition that the defendant be required to pay for and successfully complete a counseling assessment with a focus on violence, dangerousness, and chemical depéndency as required by §45-5-206, MCA. The defendant shall follow through on any recommendations made by the counseling provider; the counseling provider is to be approved by the sentencing court; the counseling must include a counseling assessment and a minimum of 25 hours of counseling in addition to the assessment; the assessment and counseling must be with a person licensed under Title 37, chapter 17, 22, or 23; and the counseling must be directed to the defendant's violent conduct. Done in open Court this 25th day of August, 2000. DATED this 11th day of September, 2000. The reason for the amendment is that the Board feels this sentence will better ensure the defendant's need for rehabilitative treatment, and for the ultimate protection of the victim and society in general. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
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On December 19, 1996, the defendant was sentenced to the following: Count I: Forty (40) years in the Montana State Prison, plus an additional ten (10) years for the use of a weapon in the commission óf the crime, to run consecutively to the underlying offense; Count III: Seventeen (17) years in the Montana State Prison, plus an additional eight (8) years for the use of a weapon, to run consecutively with the underlying offense. The sentence in Count III is to run concurrently with the sentence imposed in Count I. On August 24, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Allen Beck. The state was represented by Daniel Schwarz. The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon, IT IS ORDERED, ADJUDGED AND DECREED that the sentence shall be amended as follows: Count I: Sixty (60) years in the Montana State Prison, with forty (40) years suspended, plus an additional ten (10) years for the use of a weapon during the commission of the crime, to be served consecutively to Count I; the sentence imposed in Count III shall remain the same. Hon. Ted L. Mizner, District Court Judge
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01-192 03/22/01 Granted Original Proceeding Supervisory Control
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On March 30, 2000, the defendant was sentenced to the following: Count I: Five (5) years in the Montana State Prison; Count II: Five (5) years in the Montana State Prison, to run consecutively to the sentence imposed in Count I. Counts III, IV, and V: Six (6) months, on each count, in the Gallatin County Detention Center, to run concurrently with each other and with Count I. On August 25, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The defendant was present and was represented by Stan Peeler. The state was represented by Marty Lambert. Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed. It is the unanimous decision of the Sentence Review Division that the sentence shall be amended to the following: Count I: Ten (10) years in the Montana State Prison, with five (5) years suspended; and Count II: Ten (10) years in the Montana State Prison, all suspended, to run consecutively to the sentence imposed in Count I. The sentences imposed in Counts III, IV, and V shall remain the same. Prior to the defendant being considered for parole or early discharge, the defendant must successfully complete the following at the prison: the Chemical Dependency Program, the Moral Reconation Treatment Program, the Criminal Thinking Errors Program, and the Anger Management Program. Defendant is subject to the following conditions with respect to parole or probation: 1) That the defendant shall be under the supervision of the Department of Corrections of the State of Montana and shall obey all rules of probation; 2) That the defendant shall pay a probationary supervision fee of $10.00 per month or $120.00 per year, pursuant to §46-23-10, MCA, on a schedule to be determined by the Probation Officer; 3) That the defendant shall pay the statutory surcharge fee(s) in the amount of $85.00; 4) That the defendant shall pay the crime victim fee of $50.00; 5) That the defendant shall pay the Court Information Technology fee in the amount of $25.00; 6) The Defendant shall make all of the above payments to the Clerk of District Court in Gallatin County, on a schedule to be determined by the Probation Officer; 7) The Defendant shall obey all city, county, state and federal laws, all current court orders, and shall conduct himself as a good citizen at all times; 8) The Defendant shall not own, possess, or control any firearm's, ammunition, deadly weapons, explosives, or destructive devices; 9) The Defendant shall not possess or be in control of any scanners or other law enforcement monitoring devices while under the supervision of the Department of Corrections; 10) The Defendant shall not purchase, possess, or consume any intoxicating beverages or enter any establishment where alcoholic beverages are the primary source of sales; 11) The Defendant shall submit to random blood, breath and/or urine screening tests for the presence of alcohol and/or drugs at the reasonable request of the Probation Officer without a search warrant; 12) The Defendant shall submit to a search of his person, residence, and /or vehicle at the reasonable request of the Probation Officer without a search warrant; 13) The Defendant shall have no contact or communication, direct or indirect, with the victim or any prosecution witness; 14) The Defendant shall participate in chemical dependency treatment, after-care, or relapse prevention throughout the entire term of his sentence, as directed by the Probation Officer, at the Defendant's own expense; Done in open Court this 25th day of August, 2000. DATED this 11th day of September, 2000. 15) As directed by the Probation Officer, the Defendant shall obtain a mental health evaluation and follow any treatment plan recommended, including but not limited to drug therapy, at his own expense; 16) As directed by the Probation Officer, the Defendant shall enter, participate in and successfully complete an Anger Management Program, at his own expense; 17) The Defendant shall not gamble or frequent establishments featuring casino gambling; 18) The Defendant shall enter into and complete a pre-release program and/or intensive supervision program upon his release to parole or probation. The reasons for the amendment are that the sentence is clearly inadequate, both for the defendant's rehabilitation needs and for community protection. Chairman, Hon. Jeffrey H. Langton, Member, Hon. Marge Johnson, Member, Hon. David Cybulski.
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00-192 01/11/01 Affirmed Dist. 4 (Missoula)
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On June 19, 2000, the defendant was sentenced to five (5) years in the Montana State Prison. 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. The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon, IT IS ORDERED, ADJUDGED AND DECREED that the sentence is amended to a five (5) year commitment to the Department of Corrections. It is the Board’s recommendation that when the Department of Corrections determines that the defendant is qualified for community corrections placement, that the defendant be considered for placement at the Connections Corrections Program in Butte, Montana. Hon. Ted L. Mizner, District Court Judge.
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On August 13, 1999, the defendant was sentenced to five (5) years in the Montana State Prison, to run concurrently to the sentence imposed in Cause Number DC-93-555. 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. Done in open Court this 24th day of August, 2000. DATED this 11th day of September, 2000. 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." (§46-18t 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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00-283 02/15/01 Affirmed/ Reversed Dist. 3 (Deer Lodge)
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On March 30, 2000, the defendant was sentenced to the following: Count I: Five (5) years in the Montana State Prison; Count II: Five (5) years in the Montana State Prison, to run consecutively to the sentence imposed in Count I. Counts III, IV, and V: Six (6) months, on each count, in the Gallatin County Detention Center, to run concurrently with each other and with Count I. On August 25, 2000, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. DATED this 26th day of September, 2000. The defendant was present and was represented by Stan Peeler. The state was represented by Marty Lambert. The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon, IT IS ORDERED, ADJUDGE AND DECREED that the sentence shall be amended to the following: Count I: Ten (10) years in the Montana State Prison, with five (5) years suspended; and Count II: Ten (10) years in the Montana State Prison, all suspended, to run consecutively to the sentence imposed in Count I. The sentences imposed in Count III, IV, and V shall reman the same. Prior to the defendant being considered for parole or early discharge, the defendant must successfully complete the following at the prison: the Chemical Dependency Program, the Moral Reconation Treatment Program, the Criminal Thinking Errors Program, and the Anger Management Program. Hon. Ted L. Mizner, District Court Judge.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 Jack Swearingen (Swearingen) appeals from the Fourth Judicial District Court's September 3, 1999 Opinion and Order denying his petition for postconviction relief. We reverse and remand for further proceedings consistent with this opinion. Background ¶2 On December 10, 1997, Swearingen, represented by counsel, pleaded guilty under a plea agreement to two counts of sexual abuse of children, both felonies, in violation of § 45-5-625, MCA. He was sentenced May 13, 1998, to the Department of Corrections on one count and to the Montana State Prison on the other count. This latter sentence to the prison was suspended on conditions. On January 21, 1999, Swearingen, pro se, filed a petition for postconviction relief. The. court set the petition for hearing on April 14, 1999, and Swearingen represented himself at the hearing. On September 3, 1999, the court denied Swearingen's petition on procedural grounds and on the merits. Swearingen timely appealed. Further facts are set forth in our discussion, to the extent necessary. Issues ¶3 On appeal, Swearingen argues two issues: First, he maintains that the District Court had a mandatory obligation to appoint counsel to represent him in his postconviction proceeding and, failing to do so, the court committed reversible error. Second, Swearingen claims that the court erred as a matter of law in denying his petition for postconviction relief. We determine that the first issue is dispositive and, therefore, do not address the second. Discussion ¶4 Section 46-21-201(2), MCA (1997), provides: If the death sentence has not been imposed and a hearing is required or if the interests of justice require, the court shall appoint counsel for a [postconviction] petitioner who qualifies for the appointment of counsel under Title 46, chapter 8, part 1. ¶5 In construing a statute we follow certain well-established rules. This Court is simply required to ascertain and declare what is in terms or in substance contained in the statute, neither inserting what has been omitted, nor omitting what has been inserted. Section 1-2-101, MCA. Moreover, if the intention of the legislature can be determined from the plain meaning of the words used, we may not go further and apply other means of interpretation. Curtis v. Dist. Court of 21st Jud. Dist. (1994), 266 Mont. 231, 235, 879 P.2d 1164, 1166 (citing State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333). Where the statutory language is “plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe.” Curtis, 266 Mont. at 235, 879 P.2d at 1166. ¶6 Here, § 46-21-201(2), MCA (1997), clearly and unambiguously provides that if a hearing on a postconviction is required, the court shall appoint counsel for a postconviction petitioner who qualifies for the appointment of counsel under Title 46, Chapter 8, part 1. We have held that “shall” means “must” and that use of the term “shall” connotes a mandatory obligation. Montco v. Simonich (1997), 285 Mont. 280, 287, 947 P.2d 1047, 1051 (“Both 'shall' and 'must' are mandatory, rather than permissive.”). See also State v. Bartlett (1995), 271 Mont. 429, 432, 898 P.2d 98, 100 (“shall” is compulsory); and State ex rel. Palmer v. Hart (1982), 201 Mont. 526, 533, 655 P.2d 965, 968-69 (“shall” mandates a particular act; the term does not grant discretion). ¶7 In this case the District Court set Swearingen's petition for postconviction relief for hearing. The court did not need to do that. Pursuant to § 46-21-201(l)(a), MCA (1997), the court could have dismissed Swearingen's petition summarily on the files and records of the case or the court could have ordered a response from the State and then could have dismissed the petition for failure to state a claim. Presumably, then, the court ordered a hearing because it concluded that one was required. Having made that determination, § 46-21-201(2), MCA (1997), mandatorily obligated the court to appoint counsel to represent Swearingen at the hearing. Having failed to do so, the court committed reversible error. ¶8 Notwithstanding, the State argues that there was no statutory obligation to appoint counsel because Swearingen never made a request for counsel. In making this argument, the State urges that we read § 46-21-201(2), MCA (1997), and § 46-8-104, MCA (1997), together. This latter statute provides that the court may assign counsel to defend any petitioner in any postconviction proceeding if he desires counsel and is unable to employ counsel. The State criticizes Swearingen for failing to give the court notice that he desired counsel. ¶9 We agree that the statutes should be read together, but we decline the State's invitation to construe the statutes in the manner suggested. Facially, at least, there does appear to be a conflict between the two statutes. Section 46-21-201(2), MCA(1997), makes the assignment of counsel mandatory if a postconviction hearing is required and the defendant is indigent. On the other hand, § 46-8-104, MCA (1997), appears to make the appointment of counsel in a postconviction proceeding discretionary, contingent upon the defendant's “desire” for counsel, and his indigence. Notwithstanding this apparent inconsistency, however, there is no requirement in either statute that the defendant actually give the court some sort of “notice” of his desire for counsel. Indeed, in State v. Fry (1982), 197 Mont. 354, 359, 642 P.2d 1053, 1056, referring to § 46-8-104, MCA, we held that the court had a duty to inquire into the defendant's indigence status and his desire for counsel. In the case at bar, there is nothing in the record that indicates that the court made such an inquiry or that Swearingen otherwise knowingly and intelligently waived his statutory right to counsel under § 46-21-201(2), MCA (1997). ¶10 Accordingly, we hold, that under this statute, if the trial court determines that a hearing on a postconviction petition is required and if the defendant is unrepresented by counsel, then it is incumbent upon the court to inquire into the indigence status of the defendant and if he is unable to hire counsel, and qualifies for appointed counsel under Title 46, Chapter 8, part 1, then the court must appoint counsel to represent the defendant on his postconviction petition. ¶11 Finally, the State argues that, even assuming, arguendo, that § 46-21-201(2), MCA (1997), was violated, Swearingen has failed to demonstrate prejudice. Therefore, the District Court's failure to appoint counsel should not subject the denial of Swearingen's petition to reversal. We disagree. ¶12 Section 46-1-103(3), MCA, provides that “[a]ny irregularity in a proceeding specified by [Title 46] that does not affect the substantial rights of the accused must be disregarded.” Notwithstanding, where another provision of Title 46 specifically requires the appointment of counsel in a particular proceeding or under certain circumstances, as does § 46-21-201(2), MCA (1997), it would be wholly inconsistent with the legislature's statutory mandate to require the defendant to demonstrate prejudice resulting from the court's violation of the law enacted precisely to protect the defendant from the dangers inherent in having to proceed without counsel. ¶13 Indeed, we presume that the legislature requires criminal defendants be represented by counsel under certain circumstances or in certain proceedings in recognition of the truism that those un trained in the law do not usually understand their rights; are generally not capable of objecting to and, thus, preserving procedural and substantive legal error; and are typically ineffective in marshaling the facts, introducing evidence, making legal arguments and in defending against the efforts of the State. See Ranta v. State, 1998 MT 95, ¶ 30, 288 Mont. 391, ¶ 30, 958 P.2d 670, ¶ 30. ¶14 This case proves the point. It is apparent from the record and Swearingen's arguments on appeal, that he did not capably represent himself at his postconviction hearing. Swearingen had difficulties in properly framing nonobjectionable questions to ask one witness and was admonished by the court. He had problems following the court's questions and instructions. He had problems accessing the prison law library because he is wheelchair bound. He claimed to have had difficulty in getting his file from his trial attorney against whom his ineffective-assistance-of-counsel claims were directed. ¶15 Swearingen was forced to proceed without the benefit of counsel required by the law. As a result he suffered the very sort of harm that § 46-20-201(2), MCA (1997), was enacted to guard against. We reject the State's argument that Swearingen was required to demonstrate prejudice. ¶ 16 The trial court's denial of Swearingen's petition for postconviction relief is reversed and this cause is remanded to the District Court with instructions that the court appoint counsel for Swearingen and accord him a new evidentiary hearing on his postconviction petition. CHIEF JUSTICE GRAY, JUSTICES LEAPHART, REGNIER and TRIEWEILER concur.
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JUSTICE TRIEWEILER delivered the Opinion of the Court. ¶1 The Plaintiff, Superior Enterprises, LLC, brought this action in the District Court for the Fourth Judicial District in Mineral County to recover for fire damage to its sawmill which it claimed was caused by the electrical lines of the Respondent, Montana Power Company (MPC). Following a trial by jury, a verdict in favor of MPC was returned. Superior Enterprises appeals the District Court’s refusal to exclude an expert witness which MPC had not disclosed prior to trial. We reverse and remand for a new tried. ¶2 The sole issue on appeal is whether the District Court abused its discretion when it allowed Ralph Parkin to testify as an expert witness even though he had not been previously disclosed by MPC as an expert witness. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Superior Enterprises, LLC, owned a sawmill located near Superior, Montana. On November 26 or 27, 1996, a fire destroyed several buildings, industrial equipment and inventory at the mill site. Superior Enterprises claims the fire was caused by damaged electrical lines. Three to four days before the fire, a chip truck snagged communication lines overhanging the road adjacent to the plant. Those communication lines were attached to the same utility pole to which the electrical service fines were attached. Superior Enterprises’ theory at trial was that MPC negligently failed to inspect the damaged lines, failed to disconnect the power, and failed to advise Superior Enterprises to hire an electrician to inspect the lines even though Superior Enterprises had contacted the MPC emergency service number on two separate occasions. ¶4 At trial, Superior Enterprises offered expert opinion evidence from two witnesses, Bruce Goodwin, deputy state fire marshal, and Don Armintrout, a private fire investigator. Both witnesses expressed the opinion that the damaged electrical service lines were the cause of the fire. During the presentation of its evidence, MPC called retired fire chief Ralph Parkin as a witness. Counsel for Superior Enterprises objected based on MPC’s failure to disclose Parkin as a witness prior to trial. MPC responded that Parkin was being called as an impeachment, witness. The District Court overruled the objection and Parkin was allowed to testify. Superior Enterprises had listed Parkin as a lay witness in its pretrial order and on its witness disclosure list prior to trial, but decided not to call Parkin as a witness at trial. Parkin’s son and daughter-in-law were seated as members of the jury panel. ¶5 On April 9, 2001, the jury returned a verdict for MPC and the District Court subsequently entered judgment in MPC’s favor. On May 10, 2001, Superior Enterprises filed a Notice of Appeal of the District Court’s judgment. STANDARD OF REVIEW ¶6 The district court has the discretion to rule on the admissibility of evidence. We review those rulings for an abuse of discretion. Massman v. City of Helena (1989), 237 Mont. 234, 241-42, 773 P.2d 1206, 1211. DISCUSSION ¶7 Did the District Court abuse its discretion when it allowed Ralph Parkin to testify as an expert witness even though he had not been previously disclosed by MPC as an expert witness? ¶8 Superior Enterprises contends that the District Court abused its discretion when it allowed Ralph Parkin, a retired fire chief, to testify for MPC. Parkin offered testimony which contradicted Superior Enterprises’ theory of its case. Superior Enterprises asserts that the testimony was inadmissible pursuant to the requirement that when asked, a party must disclose its anticipated expert witnesses prior to trial. Rule 26(b)(4), M.R.Civ.P. As relief, Superior Enterprises urges this Court to order a new trial. ¶9 MPC, on the other hand, claims that Parkin was called as an impeachment witness. Because Parkin had been a witness disclosed by Superior Enterprises in response to formal discovery and in its final pretrial order, MPC contends that calling Parkin did not constitute surprise to Superior Enterprises. MPC also asserts that Superior Enterprises did not object to the expert nature of Parkin’s testimony, and, therefore, may not raise that objection for the first time on appeal. ¶10 Because a proper objection is necessary to preserve an issue for appeal, we will first consider the adequacy of Superior Enterprises’ objection. MPC contends that Superior Enterprises’ only objection to the testimony of Parkin was based on MPC’s failure to disclose him as a witness, not as an expert witness. Without objecting to the expert nature of Parkin’s testimony, MPC claims Superior Enterprises failed to preserve the issue on appeal. ¶11 In order to preserve an objection to admission of evidence for purposes of appeal, the objecting party must make a timely objection and must state “the specific ground of objection, if the specific ground was not apparent from the context; ....” Rule 103(a)(1), M.R.Evid. An objection is sufficiently specific “if it is accompanied by a reasonably definite statement of the grounds for the objection.” Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234 (citing Edward W. Cleary et al., McCormick on Evidence § 52, at 128 (3rd ed. 1984)). ¶12 Here, Superior Enterprises made the following objection: The Court: Mr. Bohyer, your objection to this witness? Mr. Bohyer: Yes, Your Honor. In the pretrial order, this witness is not listed by the Defendant as one of the witnesses that they intend to call. I would point out that in the pretrial order, in terms of witnesses, we’ve identified a bunch of them, including adverse. We also identified Mr. Parkin on our list. He was not called. The Defendant did not list this witness as one of its own to call in its case in chief and I object on that basis. ¶13 Superior Enterprises’ objection advised the District Court that MPC had never disclosed that it intended to call Parkin as a witness, expert or otherwise. The District Court was apparently aware that Parkin was testifying as an expert based on the following exchange: Mr. Parkin: Speaking with some of the folks that were there, they indicated that at that time that - The Court: Excuse me. When I overrule the objection, let me tell you what the rules are. You are allowed to form a conclusion as an expert witness based on what people have told you, but you’re not allowed to repeat what they have told you. Do you understand what I am saying? [Emphasis added.] Therefore, in the context of this case, we decline to draw a distinction between the failure to disclose a witness and the failure to disclose an expert witness, and we conclude the objection was adequate. ¶14 We must next determine whether MPC’s failure to disclose Parkin as a witness was prejudicial to Superior Enterprises. Although characterized by MPC as an impeachment witness, Parkin offered testimony regarding the cause of the fire and directly refuted the testimony of Superior Enterprises’ two expert witnesses, Bruce Goodwin and Don Armintrout. He testified as follows: Q: Okay. And with your knowledge of fires and the heat that would burn a timber of that size, could that wire have been involved in the fire at the time that that beam burned? A: It appears that there’s still insulation on the wiring, and I don’t know, it looks likes [sic] it’s aluminum wiring. And with as much heat was involved in that building, the insulation should have been burnt off completely and probably the wire separated or melted down, if it’s aluminum. It doesn’t take much heat to melt aluminum. Q: Likewise, could you have a beam with that kind of insulation on it if it - Could that beam and insulation or wire had [sic] burned together with the heat that was there? A: The insulation, well, certainly would have burned off if it would have been that much fire to burn that kind of- That’s a big beam. Q:... I’ve been told this is a textbook picture of how a wire could work its way into a beam and spark and slowly burn it up. Have you even seen a wire work its way into a beam and - or put a notch like that in a beam and slowly bum it up? A: Not to my knowledge on any fires that I’ve been on. Q: Have you even seen a notch like that in a beam that wasn’t from a precut in the beam to fit something else, in your experience? A: Not in my experience, no. Q: And, again, would there be insulation on the wires that are in that beam? A: Most certainly should be. Q: Certainly should be? A: Should be, yes. Q: Okay. And if they were there and had insulation on them and were involved in the fire, would they have insulation on them, still? A: No. It would be melted off. Parkin’s testimony relates information which is not within common knowledge or experience of lay people and is, therefore, in the nature of expert testimony. Expert witnesses offered by the defendant who-simply refute the plaintiffs theory of the case are not “impeachment” witnesses. If they were, everyone called by the defendant would be an impeachment witness. As an expert witness, Parkin should have been disclosed. ¶15 Prior to trial, MPC was given several chances to disclose Parkin as a witness, yet failed to do so. Superior Enterprises sent MPC the following interrogatory request: INTERROGATORY NO. 4: In accordance with Rule 26(b)(4), Montana Rules of Civil Procedure, please state the name, telephone number, and present address of each person you expect to call as an expert at the trial of this action. With respect to each such expert, please set forth the follow information: (a) The subject matter on which each expert is expected to testify; (b) State in detail the substance of all facts about which each such expert is expected to testify; (c) State in detail the substance of all opinions to which each such expert is expected to testify; (d) State in detail a summary of the grounds for each such opinion held by each expert and state in detail the substance of all facts upon which such opinions are based; and (e) Please describe each and every document, photograph or thing supplied by MPC to the expert. On September 22, 1998, MPC responded as follows: “None have been identified. MPC acknowledges the continuing nature of this request.” ¶16 Despite MPC’s acknowledgment of its continuing duty to supplement its response with the identity of each person expected to be called as an expert witness, the subject matter on which the person is expected to testify, and the substance of the person’s testimony, as required by Rule 26(e)(1)(B), M.R.Civ.P., MPC failed to do so. ¶17 In addition, the District Court entered a scheduling order, agreed upon by both parties, which required each party to disclose its experts, pursuant to Rule 26(b)(4), M.R.Civ.P., by February 15,2001. MPC did not disclose any experts. ¶18 The spirit of the Montana Rules of Civil Procedure requires liberal disclosure on the part of all parties, including the disclosure of witnesses. Smith v. Babcock (1971), 157 Mont. 81, 92, 482 P.2d 1014, 1020. Failure to disclose an expert witness constitutes reversible error. Miranti v. Orms (1992), 253 Mont. 231, 235, 833 P.2d 164, 166 (district court abused its discretion when it allowed two witnesses to testify as experts, when they had only been listed as lay witnesses, because it severely limited the objecting party’s ability to effectively cross-examine the witnesses); Vestre v. Lambert (1991), 249 Mont. 455, 462, 817 P.2d 219, 223 (district court committed reversible error when it allowed the defendant to solicit undisclosed expert testimony from a witness previously called to discuss factual issues, when neither party had listed the witness as an expert); Babcock, 157 Mont. at 91-92, 482 P.2d at 1020 (district court erred in permitting an expert witness to testify on behalf of the defendant at trial when defendant failed to list expert in an interrogatory answer). Failure to disclose an expert witness will usually prejudice the opposing party because it has (1) no time to prepare for the witness, (2) no time to effectively plan for cross-examination of the witness, and (3) no time to obtain an expert to refute or question the testimony of the witness. Babcock, 157 Mont. at 92, 482 P.2d at 1020. ¶19 We conclude that the failure of MPC to disclose Parkin as an expert witness resulted in prejudice to Superior Enterprises. Although Superior Enterprises listed Parkin as a witness, neither party listed him as an expert witness. Superior Enterprises did not learn Parkin would testify until he was called to the stand by MPC. Although Superior Enterprises had contact with Parkin prior to the trial, the extent of that contact and whether Superior Enterprises knew of Parkin’s causation theories and was prepared to rebut them is unknown. Superior Enterprises did not depose Parkin, presumably because they had no reason to believe he would testify as an expert witness. For purposes of trial preparation, there is a big difference between knowing about a factual witness and understanding that he will be called as an expert witness by your opponent. Therefore, MPC’s argument that Superior Enterprises was not prejudiced because it had listed Parkin as a witness is unpersuasive. ¶20 Because MPC did not identify Parkin as an expert witness in response to discovery requests by Superior Enterprises and a scheduling order agreed upon by the parties, we conclude that the District Court abused its discretion when it allowed Parkin to testify. Therefore, we reverse and remand for a new trial. JUSTICES COTTER, REGNIER and RICE concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Harold Englin and Mary Brown (Owners) appeal from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, holding that the Board of Comity Commissioners’ (Commissioners) denial of the Owners’ zone change request was not arbitrary or capricious. We affirm. ¶2 Englin and Brown raise the following issues on appeal: ¶3 1. Did the District Court err when it held that the Commissioners’ zoning decision was not arbitrary or capricious? ¶4 2. Did the District Court abuse its discretion by excluding evidence of a subsequent zone change application? Facts and Procedural Background ¶5 Englin and Brown own three acres of land (the Property) located at 1442 Ethelyn Avenue, Billings, Montana. They acquired the Property by inheritance in 1982, at which time the Property was zoned as Residential-9600. This zoning classification permits single family residences with lot sizes no smaller than 9600 square feet. The Property is bordered on the north by Beall Trucking which is zoned Highway Commercial. To the south, the Property is bordered by a single family residence and a vacant lot, both zoned Residential-9600. To the east is a storage barn for a local limousine service which is zoned Controlled Industrial. To the west is the Lockwood Evangelical Church which is zoned Residential-9600. ¶6 In December 1989 the Owners applied for a zone change on the Property from Residential-9600 to Highway Commercial. Highway Commercial zoning classification permits commercial and service businesses intended to provide services to the traveling public. The Yellowstone County Zoning Commission (Zoning Commission) recommended that the application for zone change be granted. On December 21, 1989, the Commissioners denied the application. ¶7 In November 1997, the Owners again applied for a zone change of the Property from Residential-9600 to Highway Commercial. The Zoning Commission held a public hearing and subsequently recommended denying the application. In a letter dated December 2, 1997, the Commissioners informed the Owners that it had denied their application for a zone change. ¶8 The Owners then filed this action in the District Court, arguing that the Commissioners’ denial of their 1997 zone change application violated their due process rights because it was arbitrary or capricious and that it constituted a taking by inverse condemnation. The Commissioners filed a motion for summary judgment and, sifter a hearing on the motion, the District Court granted summary judgment in favor of the Commissioners. ¶9 The Owners appealed the summary judgment to this Court. We affirmed the District Court as to the takings issue, but remanded on the substantive due process claim because the Commissioners had not issued specific findings in support of the denial of the zone change request. ¶10 After remittitur was filed, the District Court remanded the case to the Commissioners “to provide separate findings as to why it denied Appellants zone change request.” The Commissioners provided the findings and the District Court held a hearing on the substantive due process claim on July 11, 2001. Subsequently, the court entered findings of fact and conclusions of law, dismissing the claim. The Owners appeal. Discussion ¶11 Did the District Court err when it held that the Commissioners’ zoning decision was not arbitrary or capricious? ¶12 We review a district court’s findings of fact to determine whether they are clearly erroneous. We review a district court’s conclusions of law to determine whether the interpretation is correct. Greater Yellowstone Coalition, Inc. v. Board of County Commissioners of Gallatin County, 2001 MT 99, ¶ 20, 305 Mont. 232, ¶ 20, 25 P.3d 168, ¶ 20. ¶13 This appeal concerns the District Court’s conclusion that the Commissioners did not act arbitrarily in denying the Owners’ zoning change application. The Owners essentially seek review of factual determinations by the District Court. However, if substantial evidence supports the District Court’s findings and they are not otherwise clearly erroneous, we will not substitute our judgment for that of the trier of fact. Greater Yellowstone, ¶ 21. ¶14 The Fourteenth Amendment to the United States Constitution and Article II, Section 17 of the Montana Constitution protect persons from being deprived of life, liberty or property by state governmental action without due process of law. The guarantee of due process has both a procedural and a substantive component. Substantive due process bars arbitrary governmental actions regardless of the procedures used to implement them and serves as a check on oppressive governmental action. Newville v. State, Dept. of Family Services (1994), 267 Mont. 237, 249, 883 P.2d 793, 800. An examination of whether a person’s substantive due process rights have been violated requires that we decide whether the challenged governmental act is reasonably related to a legitimate governmental objective. Newville, 267 Mont. at 249, 883 P.2d at 800. ¶15 Section 76-2-201, MCA, states that zoning regulations may be adopted “[flor the purpose of promoting the public health, safety, morals, and general welfare.” Section 76-2-203(1), MCA, provides that zoning regulations must be made: in accordance with the growth policy and must be designed to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote public health and general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; and to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. ¶16 “The purpose of zoning is not to provide for the highest or best use of each particular lot or parcel of land within the zones or community, rather it is to benefit the community generally by the sensible planning of land uses taking into consideration the peculiar suitabilities and most appropriate use of land throughout the community.” Mack T. Anderson Insurance Agency v. City of Belgrade (1990), 246 Mont. 112, 117, 803 P.2d 648, 651 (emphasis in original). This Court will not sit as a super-legislature or super-zoning board. Anderson Ins., 246 Mont. at 120, 803 P.2d at 652. ¶17 In 1989, the Zoning Commission considered the factors enumerated in § 76-2-203, MCA, and recommended that the Commissioners approve the Owners’ zone change request. Although the Commissioners copied verbatim the Zoning Commission’s findings, they denied the zone change request. However, not all of the findings relating to the statutory factors were positive. The findings stated that the zone change was designed in accordance with the comprehensive plan, it “should not create any more congestion in the area than what is already found until improvements of Ethelyn Avenue are made,” it “possibly may not promote health and general welfare to the adjacent residential uses due to the potential increase of noise, traffic, etc.,” and it may decrease the value of a nearby church and residential dwelling. ¶18 In 1997, the Zoning Commission again considered the same twelve factors after holding a public hearing and, unlike in 1989, it recommended that the application for zone change be denied. It found that the zone change “will not retain and improve existing residential neighborhoods ... will not protect against the encroachment of incompatible or unrelated uses ... could increase traffic in the general area ... [and] could alter the value of buildings in the area.” The Commissioners again denied the zone change request. ¶19 The Owners argue that the conflicting recommendations of the Zoning Commission in 1989 and 1997 show that the Commissioners’ decision was arbitrary. They state that “[pjroperty cannot rationally at one time be acceptable for a Highway Commercial zoning classification and then at another time be unacceptable when none of the adjoining uses has been altered.” ¶20 County planning boards are required to make written recommendations to the Commissioners, but these recommendations are advisory only. Section 76-2-204, MCA. The Commissioners had the discretion to reject the recommendation, particularly because the 1989 findings had both negative and positive factors. The conflicting recommendations of the Zoning Commission do not establish that the Commissioners acted arbitrarily. In any event, the Commissioners had the discretion to accept or reject the planning staffs recommendation. The Owners did not appeal the Commissioners’ 1989 denial, and it is not for this Court to address that decision now. ¶21 Next, the Owners argue that the following findings of fact are clearly erroneous: (1) “the Property’s access is not adjacent to a primary or secondary highway as required, and, thus, the Property would be difficult to serve the needs of tourist, traveler, recreationist or the general traveling public;” (2) “granting the zone change would increase the noise and traffic in a relatively placid neighborhood;” (3) “granting the zone change would not be compatible with the majority of surrounding land uses;” and (4) “designating the Property as Highway Commercial would not be in accord with the County’s Comprehensive Plan.” ¶22 The Owners argue that the Property is only 330 feet from Highway 87 East and is located in “very close proximity to the Interstate 90, Lockwood/Billings interchange.” They note that Highway Commercial zoning does not require the property to be adjacent to an interstate highway. ¶23 Englin testified that the only access to the Property is over a dirt road, the Property does not front a paved road or a major roadway and the Property is not easily accessible. A map of the area indicates as much. Therefore, after reviewing the record, we conclude that substantial evidence exists for the District Court’s finding that the location of the Property would make it difficult to serve the needs of travelers. ¶24 Next, the Owners argue that noise was already a problem in the neighborhood and that the neighborhood was not “placid.” Several owners of adjoining lots testified at the public hearing about the noise level from Beall Trucking and their concern that changing the zoning on the Property would increase the noise in the neighborhood. Although the evidence does not support the court’s finding that the neighborhood is “placid,” substantial evidence exists to support the finding that the zone change would increase noise and traffic in the neighborhood. ¶25 The Owners argue that the Property is surrounded on three sides by commercial use and the finding that the zone change is not compatible with the majority of surrounding uses is “simply wrong. It is a whitewash.” ¶26 The evidence before the Commissioners and before the District Court established that the Property is surrounded on one side by high intensity commercial use and on three sides by either low intensity commercial use or residential use. One neighbor testified before the Commissioners that he uses his property to produce “a large amount of produce of garden vegetables.” A representative from the Lockwood Community Church testified that the church’s playground is adjacent to the Property. The church also maintains a softball field and a volleyball court near the Property. ¶27 After reviewing the record, we conclude that substantial evidence supports the District Court’s finding that the zone change would not be compatible with the majority of the surrounding land uses. ¶28 Finally, the Owners argue that the Zoning Commission’s finding in 1989 that the zone change accords with the Comprehensive Plan supports their contention that the 1997 finding is erroneous. In 1989, the Zoning Commission stated that “the Billings Area Comprehensive Plan shows this particular location as being an area that is not suitable for cropland.... The use of this land is currently transitional in nature. A few head of cattle are presently grazing on this piece of ground.” In 1997, the Zoning Commission stated, “The new zoning will not retain and improve existing residential neighborhoods. The new zoning will not protect against the encroachment of incompatible or unrelated uses.” ¶29 As stated previously, the record shows the majority of the surrounding land usage is residential or low intensity commercial use. A designation of the Property as Highway Commercial would not retain or improve the character of this area. ¶30 This sentiment was reflected at the hearing before the Commissioners. The Commissioners seemed to agree thatResidential9600 was not the appropriate zoning for the Property. Their concern, though, centered around the wide gap between Residential-9600 zoning and Highway Commercial zoning. The senior planner for the county noted that “there’s a wide range of other zoning districts; multi family or light commercial that maybe the applicant can pursue.” ¶31 After reviewing the record, we conclude that substantial evidence supports the District Court’s finding that the zone change would not be in accord with the County Comprehensive Plan. ¶32 We conclude that the District Court correctly held that the Commissioners adequately considered the statutory factors, that the Commissioners properly based their decision on the statutory factors and that the Commissioners’ decision was reasonably related to the legitimate governmental objective of promoting public health, safety and welfare. We hold that the Commissioners’ denial of the Owners’ zone change application was not arbitrary or capricious. ¶33 Did the District Court abuse its discretion by excluding evidence of a subsequent zone change application? ¶34 The Owners argue that the District Court abused its discretion by refusing to hear testimony and receive exhibits concerning a zone change application that they submitted to the Commissioners on the same property in July 2000. This zone change application requested a less intense commercial designation than the commercial designation sought in the present case, yet it was also denied. The Owners argue that this evidence was relevant because it showed “the continued intent by the Commissioners to act arbitrarily concerning the property at bar.” ¶35 The Commissioners argue that what occurred three years after the decision in this case is not relevant to the issue of whether the Commissioners acted arbitrarily or capriciously in 1997. ¶36 The District Court excluded the evidence of the subsequent zone change request, stating that the case had been ongoing since 1997 and had been before the Supreme Court and that “if I allowed you now to go beyond the information that the Supreme Court had, that Judge Baugh had, really would be a new case.” ¶37 Eule 401, M.E.Evid., provides that relevant evidence is any evidence 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. ¶38 Whether evidence is relevant and admissible is left to the sound discretion of the district court, and the determination will not be overturned on appeal absent an abuse of that discretion. Lopez v. Josephson, 2001MT 133, ¶ 14, 305 Mont. 446, ¶ 14, 30 P.3d 326, ¶ 14. “The question is not whether this Court would have reached the same decision, but, whether the district court acted arbitrarily without conscientious judgment or exceeded the bounds of reason.” Lopez, ¶ 14. ¶39 On remand, this Court noted that, ‘Without any separate findings made by the Board in support of its denial of Appellants’ zone change request, we are unable to determine the basis of the Board’s consistent denial.” Therefore, the District Court remanded the case to the Commissioners, directing them to issue specific findings supporting their denial of the zone change request in 1997. Under these circumstances, we agree that evidence concerning a 2000 zone change request was irrelevant and immaterial to the question before the District Court-that is, whether the Commissioners acted arbitrarily or capriciously in denying the zone change request in 1997. We also agree with the District Court that injecting the 2000 request into this proceeding would be tantamount to amending the petition and that would be inappropriate at this late date. ¶40 We conclude that the District Court did not abuse its discretion by excluding evidence of the subsequent zone change application. ¶41 The District Court is affirmed. JUSTICES NELSON, COTTER, REGNIER and TRIEWEILER concur.
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JUSTICE TRIEWEILER delivered the Opinion of the Court. ¶1 By Information filed in the District Court for the Eighth Judicial District in Cascade County, the Defendant, Richard Lee Price, was charged with driving under the influence of alcohol (DUI), a fourth or subsequent offense, and four misdemeanors: failure to wear a seatbelt, driving while the privilege to do so is revoked, failure to yield the right of way, and failure to exhibit proof of insurance. Prior to trial, Price pled guilty to the misdemeanors. Following a jury trial, Price was convicted of the DUI charge and for that offense was sentenced to twelve months imprisonment, and an additional four years of probation. For the misdemeanors, the District Court fined Price and sentenced him to two days in jail for driving with a revoked license and ten days in jail for failure to exhibit proof of insurance. All sentences were to run consecutively. The misdemeanor jail sentences were deemed served because Price had served eighteen days in jail awaiting trial. The District Court credited the remaining six days of time served to Price’s DUI sentence. Price appeals from his DUI conviction and the District Court’s application of time served. We affirm both the conviction and the sentence of the District Court. ¶2 The following issues are presented on appeal: ¶3 1. Did sufficient evidence exist to support Price’s DUI conviction? ¶4 2. Did the District Court properly award credit for time served? FACTUAL AND PROCEDURAL BACKGROUND ¶5 On March 15,1999, the State charged Price by Information with one count of DUI, a fourth or subsequent offense, in violation of § 61-8-401, MCA (1997), as well as four misdemeanor offenses. In support of the DUI charge, the State alleged that “Defendant operated or was in actual physical control of a motor vehicle, a 1988 gray Chevrolet Beretta, on a way of this state open to the public, Fourth Street North, while under the influence of alcohol.” The misdemeanors for which Price was charged included failure to wear a seatbelt, driving while the privilege to do so is revoked, failure to yield the right of way, and failure to exhibit proof of insurance. All offenses were alleged to have occurred in Great Falls, Montana, on March 5, 1999. ¶6 Price pled guilty to the misdemeanors prior to trial. The DUI charge was tried before a jury on January 18, 2000. At trial, the State first called Great Falls police officer Shane Sorenson as a witness. Sorenson testified that at approximately 9:30 p.m. on March 15,1999, he was on duty in his patrol car when he observed Price drive his vehicle from a stop sign and into the path of an approaching vehicle, which struck Price’s vehicle on the driver’s door. After the accident, Sorenson approached each vehicle to check for possible injuries. Price informed Sorenson that his neck hurt. Sorenson then crawled into the back seat of Price’s vehicle and immobilized Price’s neck until medical personnel arrived. ¶7 Sorenson noticed that Price had alcohol on his breath and that his speech was slurred. According to Sorenson, Price was asked by medical personnel whether he had been drinking that night, and Price responded affirmatively. Sorenson, however, was concerned that Price’s incoherence may have been caused by a possible concussion given the nature of the accident. ¶8 Sorenson testified he then met with Price at the hospital approximately forty-five minutes to an hour after the accident. Sorenson noticed that Price’s speech was still slurred, his eyes appeared to be bloodshot, and he still smelled of alcohol. Price was read his Miranda warning and given the Montana Implied Consent Advisory. Although Price initially agreed to give a blood sample, he subsequently refused citing his fear of needles. Price then agreed to give a breath sample. However, after Sorenson retrieved his portable breath tester, Price again refused, based on his professed belief that breath tests were inaccurate. Sorenson then issued Price a DUI citation “[gjiven the secondary indicators that I observed, given the eyes being bloodshot and glazed, given the incoherence and slurred speech, given the odor of the alcoholic beverages, then the primary indicator being impaired judgment, being that he pulled out directly in front of an oncoming vehicle at night with it’s [sic] headlights on....” Sorenson did admit that if Price had taken a breath test which produced negative results for alcohol, he would not have issued Price a citation. ¶9 Price testified that when he pulled up to the stop sign prior to the accident, he and his girlfriend, Shelly Simons, were involved in an argument, and that out of frustration and anger, he accelerated. Price testified that after the accident, everything was a “blur,” and that the impact of the collision caused his slurred voice. ¶10 Price did admit that he had been drinking prior to the accident. Price testified that at about 3:30 or 4:00 p.m., he and Simons shared approximately three-quarters of a quart of beer. Sometime later, Price drank what he characterized as “less than a beer” at Jakers, a local restaurant and casino. At about 7:00 p.m., Price and Simons went to a friend’s house, where they stayed until about 9:00 p.m. At the friend’s house, Price had a couple more beers. In all, Price admitted to consuming the equivalent of five beers in a six hour span. However, Price testified to his belief that the alcohol did not affect his driving. ¶11 Two other witnesses testified. Simons, who was with Price at the time of and preceding the accident, testified that Price’s voice was not “incoherent or slurred” before the accident. She also testified that despite his consumption of alcohol, Price was not intoxicated. The final witness at trial was Price’s emergency room physician, Dr. Betty Kuffel. Kuffel testified that when Price arrived at the hospital, he was “completely restrained and smelled of alcohol. He was cooperative. His speech was slurred and he appeared intoxicated.” She identified no medical condition such as a head injury that would have accounted for Price’s slurred speech. ¶12 Price filed a motion for a directed verdict based on his contention that there was insufficient evidence to support the conviction. His motion was denied. The jury convicted Price of DUI on January 18, 2000. On May 15, 2000, the District Court sentenced Price to the Department of Corrections for twelve months, followed by an additional four years of probation. For the misdemeanors, the District Court imposed fines and sentenced Price to two days in jail for driving with a revoked license and ten days in jail for failure to exhibit proof of insurance. All sentences were to run consecutively and the misdemeanor jail sentences were deemed served because Price had already served eighteen days in jail awaiting trial. The District Court then credited Price with six days of time served toward his DUI sentence. ¶13 Price objected to the manner in which the District Court awarded credit for time served, and requested full credit for time served toward each charge for which he was held following his arrest. On May 16, 2000, Price filed a Notice of Appeal. The District Court issued a final written judgment on June 26, 2000. STANDARD OF REVIEW ¶14 We review the sufficiency of the evidence to support a jury verdict to determine whether, 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. State v. Merrick, 2000 MT 124, ¶ 7, 299 Mont. 472, ¶ 7, 2 P.3d 242, ¶ 7. ¶15 The District Court’s award of credit for time served in this case was based on a statutory interpretation. A statutory interpretation is a conclusion of law, which we review to determine whether the district court’s interpretation of the law is correct. State v. Sullivan (1994), 266 Mont. 313, 318, 880 P.2d 829, 832. DISCUSSION ISSUE 1 ¶16 Did sufficient evidence exist to support Price’s DUI conviction? ¶17 Price contends that the State failed to provide sufficient evidence to support his DUI conviction. Specifically, he argues that Officer Sorenson’s admission that he would not have cited Price for DUI had he taken a breath test and tested negative was an admission that there was insufficient evidence to convict. ¶18 The State asserts that there was sufficient evidence, without a breath test, to convict Price of DUI. The State contends that Sorenson’s response was not an admission that the evidence was insufficient, but simply a response to a hypothetical question. The State asserts that the conviction in this case was supported by a variety of factors, including Sorenson’s observation of Price’s driving behavior, Price’s incoherent and slurred speech, the odor of alcohol on Price, Price’s admission that he had been drinking, Price’s bloodshot eyes, and the emergency room physician’s observations. ¶19 In State v. Lias (1985), 218 Mont. 124, 127, 706 P.2d 500, 502, we explained the substantial evidence test: In applying the substantial evidence test to determine whether there was sufficient evidence to support the jury verdict, this Court is governed by established principles. In applying the test the evidence is viewed in a light most favorable to the prevailing party. The weight of the evidence and the credibility of the witnesses are exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail. The test is met if a reasonable mind would accept the evidence as supporting the conclusion reached. [Citations omitted.] The maimer in which a vehicle is driven can be evidence of driving under the influence of alcohol. State v. Peterson (1989), 236 Mont. 247, 250, 769 P.2d 1221, 1223. The State is not required to produce evidence of a quantifiable blood alcohol content to demonstrate a defendant is under the influence of alcohol. See generally State v. Brady, 2000 MT 282, ¶ 28, 302 Mont. 174, ¶ 28, 13 P.3d 941, ¶ 28 (stating in the context of a DUI case that “the State is not obligated to supply any specific type of evidence: a jury may consider the facts and circumstances of an accident and the observations and opinions of witnesses, giving effect to the evidence it finds credible.”). ¶20 In this case, substantial evidence supported the jury’s verdict. Sorenson himself, who testified to investigating “probably 30” DUI charges within the past year, witnessed Price’s driving behavior. Price recklessly entered an intersection from a stop sign without regard to oncoming traffic. Following the accident, Sorenson observed that Price’s speech was incoherent and slurred, and that he smelled of alcohol. Price himself admitted that he had been drinking prior to the accident. The emergency room physician testified that Price smelled of alcohol, his speech was slurred and that he appeared intoxicated. Taken as a whole, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Price was driving under the influence of alcohol. Therefore, the DUI conviction is affirmed. ISSUE 2 ¶21 Did the District Court properly award credit for time served? ¶22 The District Court sentenced Price to jail time for three charges. For the misdemeanors, Price was sentenced to two days in jail for driving with a revoked license and ten days for failure to provide insurance. For the DUI conviction, Price was sentenced to twelve months to the Department of Corrections. The District Court ordered Price’s sentences to run consecutively. To account for the time Price spent in county jail awaiting trial, the District Court credited Price with eighteen days of time served. The District Court first applied Price’s credit to the misdemeanor jail sentences, a combined twelve days, and then applied the remaining six days of credit toward the DUI sentence. ¶23 Price contends that the District Court erroneously applied § 46- 18-403(1), MCA, the statute which requires credit for incarceration prior to conviction. Price contends that the District Court was required to grant him full credit for time served on each sentence imposed. Therefore, according to Price, not only should his two and ten day misdemeanor jail sentences have been deemed served, but he should also have received an eighteen day credit against his DUI sentence. ¶24 The State, on the other hand, contends that the District Court correctly interpreted § 46-18-403(1), MCA, when it applied the eighteen days of credit once against the total time to be served for the three consecutive sentences. The State asserts that awarding the full amount of time served toward each sentence, when sentences run consecutively rather than concurrently, would lead to an absurd result and is inconsistent with the approach uniformly taken in other jurisdictions. ¶25 Section 46-18-403(1), MCA, provides: Credit for incarceration prior to conviction. (1) Any person incarcerated on a bailable offense and against whom a judgment of imprisonment is rendered must be allowed credit for each day of incarceration prior to or after conviction, except that the time allowed as a credit may not exceed the term of the prison sentence rendered. ¶26 Statutory language must be construed according to its plain meaning and, if the language is clear and unambiguous, no further interpretation is necessary. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. This Court must attempt to discern and give effect to the intention of the Legislature, § 1-2-102, MCA; State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333, and construe each statute so as to avoid an absurd result “and to give effect to the purpose of the statute.” Infinity Ins. Co. v. Dodson, 2000 MT 287, ¶ 46, 302 Mont. 209, ¶ 46, 14 P.3d 487, ¶ 46 (citing Christenot v. State, Dept. of Commerce (1995), 272 Mont. 396, 401, 901 P.2d 545, 548). ¶27 We conclude that Price’s interpretation is not warranted by the plain language of the statute and would result in a fundamental unfairness in the administration of criminal sentencing among similarly situated defendants. The Hawaii Supreme Court recently stated the inherent problem: Statutes giving credit for presentence confinement were designed to ensure equal treatment of all defendants whether or not they are incarcerated prior to conviction. Granting presentence credit, therefore, seeks to place an in-custody criminal defendant who cannot afford to post bail in the same position as his counterpart with bail money. Once credit has been granted, no additional purpose is served by granting a second or “double credit” against a later consecutive sentence. Courts in other jurisdictions having similar statutes agree that a defendant who receives consecutive sentences is entitled to presentence credit only once against the aggregate of the consecutive terms, while a defendant sentenced to concurrent terms in effect receives credit against each sentence. [Citations omitted.] State v. Tauiliili (Haw. 2001), 29 P.3d 914, 918. In addition to the potential inequity foreseen by the Hawaii court, the statute does not provide for repeated application of time served. It simply requires that the defendant be credited with time served. That is what was done in this case. ¶28 Price’s interpretation of § 46-18-403(1), MCA, would also defeat the Legislature’s purpose for permitting consecutive sentences. See § 46-18-401, MCA. As noted by the Wisconsin Supreme Court: The state offered in its brief a situation where a defendant is charged with multiple misdemeanors. In the state’s hypothesis, a criminal who is charged with 25 separate batteries and is in nine months pretrial custody and then receives a nine months sentence on each count consecutively would be immediately discharged if multiple-time credits were to be allowed. While the hypothesis cited is an example of logical overkill, we consider it sufficiently persuasive to convince us that good public policy comports with the meaning we give the sentencing-credit statute. State v. Boettcher (Wis. 1988), 423 N.W.2d 533, 539. Although in this case the defendant had earned only eighteen days of presentence credit, it is not unusual that defendants spend six months to a year in jail awaiting trial in complex criminal cases. We agree with the logic expressed by the Wisconsin Supreme Court. For the foregoing reasons, we hold that § 46-18-403(1), MCA, entitles defendants to credit for presentence incarceration only once against the aggregate of all terms imposed when multiple sentences are imposed consecutively. ¶29 Our interpretation of § 46-18-403(1), MCA, is consistent with that uniformly followed in other jurisdictions which have interpreted similar statutes. See, e.g., State v. Tauiliili (Haw. 2001), 29 P.3d 914, 918; Blankenship v. State (Md. Ct. Spec. App. 2000), 763 A.2d 741; State v. Sanchez (Neb. Ct. App. 1994), 520 N.W.2d 33; State v. Percy (Vt. 1992), 612 A.2d 1119; People v. Watts (Mich. Ct. App. 1991), 464 N.W.2d 715; State v. Miranda (N.M. 1989), 779 P.2d 976; State v. Cuen (Ariz. Ct. App. 1988), 761 P.2d 160; State v. Riley (Mo. Ct. App. 1988), 761 S.W.2d 745; Nissel v. Pierce (Or. 1988), 764 P.2d 224; Endell v. Johnson (Alaska App. 1987), 738 P.2d 769, 771; State v. Arcand (N.D. 1987), 403 N.W.2d 23; People v. Pluskis (Ill. App. Ct. 1987), 515 N.E.2d 480; Schubert v. People (Colo. 1985), 698 P.2d 788; Effinger v. State (Minn. 1986), 380 N.W.2d 483; State v. Decker (N.H. 1985), 503 A.2d 796; State v. Aaron (N.M. Ct. App. 1985), 703 P.2d 915; State v. Jenkins (Kan. Ct. App. 1984), 690 P.2d 396; State v. Cruz-Mata (Ariz. 1983), 674 P.2d 1368; State v. Hoch (Idaho 1981), 630 P.2d 143; Simms v. State (Ind. Ct. App. 1981), 421 N.E.2d 698; People v. Brown (Cal. Ct. App. 1980), 107 Cal.App.3d 858; Commonwealth v. Carter (Mass. App. Ct. 1980), 411 N.E.2d 184; People ex rel. Bridges v. Malcolm (N.Y. 1978), 379 N.E.2d 156; State v. Richardson (N.C. 1978), 245 S.E.2d 754; Wilson v. State (Wis. 1978), 264 N.W.2d 234; Cox v. State (Kan. 1974), 522 P.2d 173; Miller v. State (Fla. Dist. Ct. App. 1974), 297 So.2d 36; United States ex rel. Derengowski v. United States Attorney Gen. (8th Cir. 1972), 457 F.2d 812; Holland v. State (Md. Ct. Spec. App. 1971), 284 A.2d 874; State v. Johnson (Iowa 1969), 167 N.W.2d 696. ¶30 In this case, Price was entitled to receive “credit for each day of incarceration,” and the District Court properly awarded Price credit for each day served. Of the eighteen days of presentence incarceration, twelve days were credited against the sentences imposed for the two misdemeanor offenses. The District Court then applied the remaining six days of pretrial incarceration toward Price’s DUI sentence. Therefore, Price was given “credit for each day of incarceration” - no more, no less. Accordingly, we conclude that the District Court’s interpretation of the law regarding credit for time served was correct. ¶31 For the foregoing reasons, we affirm the judgment of the District Court. JUSTICES NELSON, COTTER, REGNIER and LEAPHART concur.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 Marvin Drake (Marvin) filed a motion in the First Judicial District Court in Lewis and Clark County, to modify the arrangement for residential custody of his two children, Gavin and Danielle. The court held a hearing and granted his request in April 2001. Jessica Drake, n/k/a Jessica Koterba (Jessica), the children’s mother, filed a timely appeal. We affirm the order of the District Court. ISSUES ¶2 The primary issue before this Court is whether the District Court erred in granting Marvin’s motion to modify the parenting plan. In that connection, we have been asked to decide whether the District Court improperly allowed hearsay evidence to be introduced during the hearing, and whether the District Court abused its discretion by failing to specifically refer to a Department of Public Health and Human Services (DPHHS) Family and Child Services investigation report in its Findings of Fact, Conclusions of Law and Order. FACTUAL AND PROCEDURAL BACKGROUND ¶3 Upon Marvin and Jessica’s divorce in October 1995, the parents were granted joint legal custody of their two young children, Gavin, then 6 years old, and Danielle, then 3. Additionally, Jessica was designated as primary residential custodian and Marvin was provided with visitation rights. After the divorce, both parents continued living in Helena and Marvin consistently exercised his rights to spend time with the children. Approximately three years later, Jessica told Marvin she intended to move to Lewistown to pursue a nursing degree. Marvin sought to modify residential custody to keep the children in Helena but his modification request was denied. ¶4 Jessica, Anthony, her then-twelve year old son from a previous relationship, Gavin and Danielle moved to Lewistown in mid-December 1998. In August 1998, Jessica married Scott Koterba, her present husband. Scott has two children from a previous marriage who visit Scott, Jessica and the other children every other weekend. ¶5 In June 1999, approximately six months after moving to Lewistown and just before Gavin and Danielle were leaving to spend the summer in Helena with Marvin in accordance with the parenting plan, Jessica took Gavin to a Lewistown physician, Dr. Berberet. She wanted him to be tested for Attention Deficit/Hyperactivity Disorder (AD/HD) because Gavin was having problems in school. Dr. Berberet recommended that- a complete evaluation be conducted. ¶6 The complete evaluation was conducted on September 16, 1999. Dr. Berberet diagnosed Gavin with AD/HD and prescribed medication to be taken on a daily basis through the school week. Marvin and Jessica were given the discretion based on Gavin’s behavior whether to administer the medication on the weekends. Dr. Berberet subsequently saw Gavin in December 1999, March and October 2000 and March 2001. Marvin claims that he did not discover that Gavin had been diagnosed with AD/HD or medicated for it until December 1999. Jessica disputes this. ¶7 Simultaneously, at Marvin’s direction, both children started counseling in Helena as well. In late July 1999, Marvin took Gavin, then 10, and Danielle, then 7, to Dr. Burns, a licensed clinical psychologist in Helena. Marvin maintains that at that time he did not know that Gavin had seen Dr. Berberet. Marvin asked Dr. Burns to meet with the children because Marvin was concerned that Gavin was possibly suffering from Attention Deficit Disorder (ADD) and Danielle might be experiencing depression or some other type of mental health disorder. This first visit was merely a consultation, and Dr. Burns did not perform any tests or form a diagnosis. ¶8 Dr. Burns subsequently met with the children in December 1999 and February 2000. The December session was another counseling session and no psychological testing was performed. During the February 2000 session with Dr. Burns, however, both children underwent extensive psychological tests. Subsequently Dr. Burns diagnosed Danielle with adjustment disorder with anxiety and underlying emotional distress, and Gavin with adjustment disorder with mixed anxiety and depressed mood. Dr. Bums was unable to conclusively diagnose Gavin with ADD or AD/HD, but he could not rule it out. Dr. Burns concluded that there was an emotional and situational element to Gavin’s behavior problems because his behavior appeared to be more extreme and disruptive when he was in Lewistown with Jessica than it was when he was in Helena with Marvin. Had Gavin’s problem been purely biological as a result of ADD, Dr. Burns believed he would have displayed similar behavior problems whether at Marvin’s or at Jessica’s. ¶9 Sometime in the spring of 2000, at approximately the time the children stopped seeing Dr. Burns, they began a series of counseling sessions with Maggie Moffatt, a licensed clinical professional counselor who was on contract with the school Gavin and Danielle attended. The children had been referred to her by the school counselor who indicated that Gavin was not focusing well or paying attention in class and he was occasionally aggressive with some other children. Also, Danielle was having trouble taking direction and was being “willful.” Ms. Moffatt concluded that the children were having adjustment issues with Jessica’s marriage. The children met with Ms. Moffatt every other week for approximately one to one-and-one-half hours. Jessica, Scott, and Jessica’s son from a previous relationship, Anthony, also participated in some of these sessions. Ms. Moffatt testified that during these sessions, the children occasionally expressed a preference for where they wished to live. She stated that “the majority” of the time Gavin said he wanted to live with Marvin but Danielle vacillated in her preference between her parents. The sessions were discontinued in early June when the children left to spend the summer in Helena with Marvin. Ms. Moffatt stated that she believed “major strides” had been made during the three months of family counseling. ¶10 In November 2000, Marvin again requested modification of the residential custody arrangement. This action was prompted in part by Marvin learning that Jessica was attending some of her nursing classes in Havre rather than Lewistown. (Jessica had testified in the December 1998 hearing on Marvin’s first request for modification that all of her classes would be held in Lewistown.) When Jessica attended classes in Havre, the children were frequently left in the care of others. On several occasions they were required to arrive at day care before 6:00 a.m. or remain at day care until 10 or 11 p.m. and spend some nights with the day care provider. Additionally, Marvin perceived that his children continued to experience difficulty adjusting to Jessica’s marriage to Scott. STANDARD OF REVIEW ¶11 We review a district court’s findings related to custody or visitation modification to determine whether those findings are clearly erroneous. In re Marriage of Nevin (1997), 284 Mont. 468, 472-73, 945 P.2d 58, 61 (citing In re Marriage of Elser (1995), 271 Mont. 265, 270, 895 P.2d 619, 622, overruled on other grounds by Porter v. Galarneau (1996), 275 Mont. 174, 911 P.2d 1143). In Elser, we said that “findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court’s review of the record convinces it that a mistake has been made.” Elser, 271 Mont. at 270, 895 P.2d at 622. If the findings on which its decision are based are not clearly erroneous, this Court will reverse a district court’s decision regarding custody modification or visitation only when an abuse of discretion is demonstrated. Elser, 271 Mont. at 270, 895 P.2d at 622 (citation omitted). DISCUSSION ¶12 A District Court is authorized to modify a parenting plan if it determines that the child’s circumstances have changed since the prior plan was entered and that the modification serves the best interests of the child. Section 40-4-219, MCA. When facing the unenviable and frequently difficult task of deciding what is in a child’s best interest, the district court is guided by § 40-4-212, MCA, which outlines several relevant factors to be considered, including, among others, the positions of the parents vis-á-vis the modification, the mental and physical health of the child, and the age and wishes of the child. ¶13 During trial, the District Court gave consideration to statements that the children had made to Dr. Burns during his sessions with them. Jessica objected on the grounds that such statements by the children constituted inadmissible hearsay. The District Court overruled her objection. ¶14 During the course of the three sessions with Dr. Burns, the children indicated on multiple occasions that they were unhappy with their living situation in Lewistown and wished to live with their father in Helena. Dr. Bums included these statements in his reports, which were admitted into evidence at the hearing, and repeated them while testifying at the hearing. Dr. Burns also testified at the hearing about the various tests Gavin and Danielle completed during his evaluation of them. He explained how each child performed on these tests and his interpretation of their performance. Dr. Burns concluded not only from their specific statements but from the information obtained during all three visits that the children were unhappy with their Lewistown living arrangement, that they did not want to be separated from one another, and that they wanted to live with their father. He also concluded that it was very important to Gavin that his desire to five with his father be heavily considered by his parents and anyone else making a custody decision. ¶15 “Hearsay is a statement, including both oral assertions and nonverbal conduct intended as an assertion, made by a person not currently testifying and offered in evidence to prove the tmth of the matter asserted.” In the Matter of A.N. and C.N., 2000 MT 35, ¶ 53, 298 Mont. 237, ¶ 53. Montana Rule of Evidence 802 states that “[hjearsay is not admissible except as otherwise provided by statute, [the Montana evidence] rules, or other rules applicable in the courts of this state.” ¶16 Jessica has several complaints regarding the District Court’s acceptance of Dr. Burns’ testimony. She argues that this Court has declined to extend the Montana Rule of Evidence 803(4) exception to statements made by a child to a counselor, reasoning that “the circumstantial guarantee of trustworthiness underlying the medical treatment exception is ‘less forceful’ in cases involving children....” See State v. Henderson (1994), 265 Mont. 454, 462, 877 P.2d 1013, 1018. Moreover, Jessica maintains that the District Court could have requested an independent evaluation to be performed under § 40-4-214(2), MCA, after which hearsay statements made by the children during the course of the evaluation would be admissible. See In Re Marriage of Bukacek (1995), 274 Mont. 98, 907 P.2d 931. She further argues that because the District Court refused to allow her to state what the children had told her about their residential preferences, ruling that such statements were inadmissible hearsay, the same rationale should be applied to their statements to Dr. Bums. ¶17 It should be noted that under § 40-4-214(1), MCA, the court could have interviewed the children to determine their wishes. Jessica, however, specifically objected to the children being interviewed by the court and the court honored her request not to interview Gavin and Danielle. ¶18 We need not determine whether Dr. Burns’ testimony was admissible under Rule 803(4) because we conclude that it qualifies as professional advice available to the court under § 40-4-214(2), MCA. We have held that “[c]hildren’s preferences for custody are a factor which should be considered by the district court (citation omitted). However, the court need not interview the children to discern their preferences (citation omitted). It may rely on the evaluation of a professional counselor.”Bukacek, 274 Mont. at 105, 907 P.2d at 935. In Bukacek, the court appointed a professional counselor to interview the children. The counselor then set forth his opinions about the children’s preferences in his custody evaluation report which the district court considered in its order. Bukacek, 274 Mont. at 105-06, 907 P.2d at 935-36. The Bukacek court relied upon In Re Marriage of Bolt (1993), 259 Mont. 54, 58, 854 P.2d 322, 324, where we stated “[t]he wishes of the children were considered by the court through counseling by a family counselor ... who spent time with the children in order to determine the cause of the problems they were experiencing and how the children could be helped.” Bolt, 259 Mont. at 58, 854 P.2d at 324. In Bolt, the Court did not specify whether the counselor who provided professional advice to the court was appointed or had been retained by one of the parties at some previous time. ¶19 Special appointment of an independent professional counselor is not necessary in all circumstances. In this case, appointment was unnecessary because the children had already undergone extensive counseling and evaluation by a medical doctor as well as by one counselor hired by Jessica and one counselor hired by Marvin. The District Court admitted the entire testimony of all professionals who had counseled these children. It then weighed that testimony and rendered its decision. We conclude that the testimony of all the counselors was admissible under § 40-4-214(2), MCA. ¶20 Moreover, Jessica has not challenged Dr. Burns’ qualifications but rather argues that because he was hired by Marvin, his evaluation was not independent. This perceived lack of independence is a factor the District Court could have considered when assessing the credibility of Dr. Burns and weighing his evidence. It would not have rendered the evidence inadmissible. We have held on numerous occasions that the district court is in a superior position to weigh evidence and the credibility of witnesses, and therefore we will not overturn a district court in a child custody matter unless we determine that there has been a clear abuse of discretion. Bukacek, 274 Mont. at 105, 907 P.2d at 935; Bolt, 259 Mont. at 58, 854 P.2d at 324. Nor will we substitute our judgment for that of the fact finder as to the weight of evidence and credibility of witnesses. Adoption of J.M.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969. ¶21 Jessica also argues that the District Court failed to review the records from DPHHS Family and Child Services requested by the court. These records pertained to an April, 1999 investigation of Jessica, Jessica’s then-fiancé Scott Koterba, and the children conducted in Lewistown. Because the court did not mention these records in its Findings of Fact, Conclusions of Law and Order, Jessica asserts that the court failed to review them and such failure was an abuse of discretion. She cites In Re Marriage of Abrahamson (1996), 278 Mont. 336, 341,924 P.2d 1334, 1337, in which this Court held that if a district court orders a custody evaluation or investigation, but this Court is “not able to determine if the District Court even considered the report,” we may conclude that the District Court abused it discretion. ¶22 However, Abrahamson is not applicable in this case for two reasons. First, these records were not generated as a result of a court-ordered custody evaluation or investigation. Second, the District Court judge stated during the hearing that he had reviewed the material when it arrived. ¶23 Furthermore, the district court is not required to make specific findings on every fact presented or every piece of evidence offered. It need only include “the essential and determining factors upon which [its] conclusions rest ’’Moseman v. Moseman (1992), 253 Mont. 28, 31, 830 P.2d 1304, 1306. This rule applies not only to the DPHHS records but also to Jessica’s complaint that the District Court failed to make specific findings of uncontradicted facts. ¶24 During the hearing, the District Court heard a great deal of testimony regarding changes or events in Gavin’s and Danielle’s lives since their move to Lewistown. Importantly, Jessica testified that the children were having adjustment problems related to her marriage to Scott and that she told Gavin that he could live with his father when he turned 12 years old (Gavin turned 12 two months after the April 2001 hearing). Also, a deputy juvenile probation officer testified about Gavin’s involvement in vandalizing a house with some other Lewistown boys and the resulting charge of criminal mischief and Gavin’s one year probation. Gavin’s fifth grade teacher testified that Gavin had developed the reputation as a third-grade “troublemaker” during his first year at his Lewistown school but by the mid-fourth grade appeared to be doing better, and that Gavin’s medication allowed him to be more attentive and less disruptive. ¶25 It is significant that the same District Court judge presided over the dissolution of Marvin and Jessica’s marriage and entered the first parenting plan in 1995, conducted the hearing when Marvin sought custody modification in 1998, and then presided over this modification request and hearing in 2001. The District Court therefore had a working familiarity with this family upon which it could critically weigh evidence and decide what was in the best interests of the children. We conclude that the District Court’s Findings of Fact, Conclusions of Law and Order were supported by substantial evidence and, therefore, were not clearly erroneous. The District Court did not misapprehend the effect of the evidence, nor does this Court’s review of the record convince us that a mistake has been made. We affirm. CHIEF JUSTICE GRAY, JUSTICES TRIEWEILER, REGNIER and LEAPHART concur.
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JUSTICE TRIEWEILER delivered the Opinion of the Court. ¶1 The Appellant, Alice P. Kloss, opened financial services accounts with the Defendants, Edward D. Jones & Co. and Paul Husted, in 1992 and 1998. The agreement between Kloss and Jones contained predispute arbitration clauses. After Kloss filed a complaint in the District Court for the Eighth Judicial District in Cascade County in which she sought damages caused by Husted’s wrongful conduct, Jones filed a Motion to Compel Arbitration. The District Court granted the motion and Kloss appealed. While the appeal was pending, Jones located Kloss’ 1998 brokerage agreement which was at issue in the District Court. This Court remanded this matter to the District Court for supplemental findings of fact and conclusions of law based on the 1998 account agreement. Following an evidentiary hearing, the District Court granted Jones’ Motion to Compel Arbitration. Kloss now appeals from the order compelling arbitration. We reverse the order of the District Court. ¶2 Of the issues presented on appeal, we find the following to be dispositive: ¶3 1. Did the District Court err when it concluded that the arbitration clauses contained in the 1992 and 1998 Full Service Agreements were enforceable? ¶4 2. Did the District Court err when it failed to consider whether Defendants owed Kloss a fiduciary duty to explain the arbitration agreement? ¶5 3. Did the District Court err when it denied Kloss’ motion for attorney’s fees and costs? FACTUAL BACKGROUND ¶6 The Appellant, Alice P. Kloss, is a 95 year old widow who was referred to Defendant Paul Husted in 1985. Husted has been employed by Defendant Edward D. Jones & Co. in Great Falls, Montana, as a stockbroker since 1981. Kloss opened a full service brokerage account with Jones on July 30, 1989, which permitted her to purchase securities and maintain a money market account. ¶7 Kloss established a living trust account with Jones in April of 1992. Like the 1989 account, the living trust account agreement contained a mandatory arbitration provision which required that “[a]ny controversy arising out of or relating to any of my accounts or transactions with you, your officers, directors, agents and or/employees ... shall be settled by arbitration ....” ¶8 In early 1998, Kloss went to Husted’s office to discuss investment options for a bond that had matured and Husted informed her that she had quite a bit of money and should set up a charitable trust with her bond proceeds. Husted then arranged for Kloss to meet with an attorney, who drafted the documents which created an irrevocable charitable trust. ¶9 On May 28,1998, Kloss activated the charitable trust account by executing a Customer Account Agreement for Full Service and Customer Loan Accounts (hereinafter 1998 Agreement). The 1998 Agreement also contained a pre-dispute arbitration clause but was not signed by Kloss. Rather, Kloss signed a detachable signature card that acknowledged she received a copy of the 1998 Agreement and incorporated the Agreement’s arbitration clause by reference: The Full Service Account and the Customer Loan Account Agreements contain a pre-dispute arbitration clause that is incorporated by reference from the general account provisions on pages 1 and 2. By my signature below, I acknowledge that I have received a copy of this document. The agreements themselves included the following explanations of rights waived by submission of disputes to arbitration: The 1992 “Customer Account Agreements for Full Service and Customer Loan Accounts-General Account Provisions” contains a section as follows: ARBITRATION 1. Arbitration is final and binding on the parties. 2. The parties are waiving their right to seek remedies in court, including the right to jury trial. 3. Pre-arbitration discovery is generally more limited than and different from court proceedings. 4. The arbitrators’ awards is not required to include factual findings or legal reasoning, and any party’s right to appeal or to seek modification of rulings by the arbitrators is strictly limited. 5. The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. ¶10 After the charitable trust was executed, Husted selected and sold assets from Kloss’ living trust to fund the charitable trust. The assets sold for approximately $352,000.00, which Husted deposited into a charitable remainder trust in the name of Alice P. Kloss. ¶11 In July 1998, Kloss began to have second thoughts about the charitable trust. She contacted her nephew and requested that he come to Montana, where she gave him power of attorney and decided to revoke the charitable trust. She then obtained counsel and filed a petition to revoke the charitable trust. After a hearing, Judge Kenneth Neill granted her petition. ¶12 Kloss then filed this complaint in the District Court for the Eighth Judicial District in Cascade County on December 28, 1998. Kloss alleged that Jones violated Montana statutes regarding the sale of securities, was negligent, committed unfair and deceptive business practices, breached its fiduciary obligations, and committed fraud. Kloss sought attorney fees, costs, expenses, and taxes incurred from the creation and revocation of the charitable trust. Jones filed a Motion to Compel Arbitration and Stay Proceedings on February 17, 1999. Evidentiary hearings were held on October 27,1999, and February 1, 2000. ¶13 On June 12, 2000, the Honorable Marge Johnson entered an Order granting Jones’ Motion to Compel Arbitration and Stay Proceedings, in spite of her finding that Kloss had not been provided with a copy of the 1992 Agreement. The 1998 Agreement was not discussed in Judge Johnson’s decision. ¶14 On July 6, 2000, Kloss appealed to the Montana Supreme Court and filed her initial brief. During the course of the appeal, however, Jones located the detached signature card that acknowledged Kloss’ receipt of the 1998 Agreement. Jones requested that the appeal be stayed so that the District Court could make supplemental findings of fact and conclusions of law based on the 1998 Agreement rather than the 1992 Agreement which was the subject of Judge Johnson’s Order. ¶15 On January 9, 2001, we remanded this case to the District Court for supplemental findings of fact and conclusions of law based on the 1998 Agreement. We additionally remanded Kloss’ Motion for Attorney’s Fees and Costs. ¶16 The District Court, the Honorable Julie Macek presiding, held an evidentiary hearing on March 20, 2001. On March 26, 2001, the District Corut issued an order which granted the Defendant’s Motion to Stay Proceedings and Compel Arbitration. On May 7, 2001, the District Court issued an order denying Kloss’ Motion for Attorney’s Fees and Costs. Kloss now appeals from these orders. We affirm in part and reverse in part the orders of the District Court. DISCUSSION ISSUE 1 ¶17 Did the District Court err when it concluded that the arbitration clauses contained in the 1992 and 1998 Full Service Agreements were enforceable? ¶18 Both district judges concluded, based on slightly different reasoning, that the identical arbitration clauses found in the 1992 and 1998 contracts were binding and should be enforced. Before we can review the correctness of those conclusions, it is necessary to set forth the findings made by each district judge. Those findings are not challenged on appeal and are, therefore, assumed to be the determinative facts on which our opinion is based. Judge Johnson made the following relevant findings: 7. The Full Service Agreement was drafted by Edward Jones, and printed on an Edward Jones form. The document at issue is a form dated 12/91. 8. Clients do not have any input on the contents of the agreement. It is presented to them as is for their signature and they must sign the agreement as is if they wish to open an account with the Defendants. 9. While there are certainly other investment brokers in Great Falls, no evidence was presented which would lead me to believe Mrs. Kloss had any meaningful choice in accepting or rejecting an arbitration provision of such a contract or that other stockbrokers offered contracts at that time for similar accounts which did not contain an arbitration provision. I have no reason to believe that was not a fairly standard practice at that time, and that she had no meaningful choice regarding acceptance of the agreement if she wished to open an investment account, which is what I do believe and find as a fact. 10. The arbitration provision is a unilateral provision of the brokerage houses contained in a contract presented to clients as is with no meaningful opportunity to negotiate its presence in the contract .... It is reasonable to assume that such contracts commonly contain such a provision today, regardless of the brokerage house with which a client is dealing. 12. Mrs. Kloss liked and trusted Mr. Husted and expected that he would explain to her anything she needed to know that was significant. 13. She did have an opportunity to read the agreement before she signed it, and was capable of doing so, but did not do so, relying instead upon Mr. Husted to advise her of the significant features of the agreement. 14. Mr. Husted, in opening accounts, such as that which Mrs. Kloss opened with him in 1992, explains what he believes to be the significant features from an investment perspective,.... 15. Mr. Husted did not consider the arbitration provision to be a significant provision of the contract. 17. He [Husted] does not routinely explain and did not explain to Mrs. Kloss the arbitration provision of the contract. 18. She did not read and was not aware of the arbitration provision of the contract. ¶19 Judge Macek made the following findings which are relevant to our decision: 22. The Full Service Agreement [1998 Agreement] was drafted by and printed on an Edward D. Jones form. 23. Clients do not have input on the contents of said form. If clients wish to open a fall service account with Defendant they must sign the agreement. 24. Kloss had the opportunity to read the terms of the agreement before she signed it. Kloss did not do so. 25. Husted’s normal procedure in opening accounts, which he followed with Kloss, is to explain what he believes to be the significant features of the account from an investment perspective, .... 26. Husted did not consider the arbitration provision to be a significant provision of the contract. 28. Husted does not routinely explain the arbitration provision to clients and did not explain it to Kloss. 36. Edward D. Jones & Co. is engaged in interstate commerce. ¶20 In spite of what she found to be the facts, Judge Johnson concluded, based on our decision in Chor v. Piper, Jaffray & Hopwood, Inc. (1993), 261 Mont. 143, 862 P.2d 26, that Jones had no obligation to explain to Kloss the terms of its contract with her and that even if the contract in question was a contract of adhesion, it was not unenforceable because it was not unconscionable based on the criteria set forth in Iwen v. U.S. West Direct, 1999 MT 63, 293 Mont. 512, 977 P.2d 989. Judge Johnson did not draw any conclusion or make any finding as to whether the arbitration provision was within Kloss’ reasonable expectations. ¶21 Following her findings, Judge Macek concluded that Jones had no duty to explain the terms of the contract based on our decision in Chor and that Kloss is presumed to have read and understood the terms of the contract. Judge Macek also concluded that the agreements in question were not contracts of adhesion because Kloss could have done business with other brokerage houses (Macek made no finding to contradict Johnson’s finding that the agreements at other brokerage houses would also have included an arbitration provision) and, finally, Judge Macek concluded that even if the agreements in question were contracts of adhesion, they were not unenforceable because they were within Kloss’ reasonable expectations and were not unconscionable pursuant to our decision in Iwen. Judge Macek concluded that the arbitration provisions were within Kloss’ reasonable expectations because they were included within the agreements. ¶22 On appeal, Kloss argues that the arbitration clause was part of a contract of adhesion and that waiver of her constitutional right to jury trial should not be presumed from signing a contract of adhesion. Jones contends that form contracts between securities brokers and their clients are not contracts of adhesion, nor are the arbitration clauses contained in such contracts unconscionable. ¶23 In Iwen, we were presented with the issue of whether an arbitration provision in an advertiser’s yellow page directory agreement was enforceable and barred the advertiser’s direct action in district court. We concluded first of all that a district court’s order compelling arbitration is subject to de novo review. Iwen, ¶ 17 (citing Zolezzi v. Dean Witter Reynolds, Inc. (9th Cir. 1986), 789 F.2d 1447). We acknowledged that pursuant to the Federal Arbitration Act, found at 9 U.S.C. §§ 1-16 (1998), arbitration provisions found in contracts affecting interstate commerce are valid “save upon such grounds as exist at law or in equity for the revocation of any contract.” See 9 U.S.C. § 2 (1998) and Iwen, ¶ 23. We also noted that while generally applicable contract law defenses may be used to set aside arbitration agreements, states may not craft special rules which only apply to arbitration provisions for the purpose of defeating arbitration. Iwen, ¶ 26. Finally, we stated that a generally applicable contract law defense arises in contracts of adhesion which will not be enforced against the weaker party when it is: (1) not within the reasonable expectations of said party, or (2) within the reasonable expectations of the party, but, when considered in its context, is unduly oppressive, unconscionable or against public policy. Iwen, ¶ 27. We ultimately concluded that the arbitration provision at issue in Iwen was unconscionable because it lacked mutuality. In other words, U.S. West retained the right to proceed in district court while Iwen was precluded from doing so. ¶24 A contract of adhesion is a contract whose terms are dictated by one contracting party to another who has no voice in its formulation. Corbin on Contracts, § 1.4 at 13 (1993). The law pertaining to contracts of adhesion is not merely an academic exercise in which we engage to resolve contract disputes. It is a recognition of the reality that contracts do not always reflect terms that were bargained for at arms length. Instead, terms are sometimes dictated by one party to another who has no bargaining power and no realistic options. The law pertaining to contracts of adhesion recognizes that in certain circumstances, traditional assumptions associated with contract law are unfounded. However, determining that a contract is a contract of adhesion is not the end of the inquiry in Montana. In Passage v. Prudential-Bache Securities, Inc. (1986), 223 Mont. 60, 727 P.2d 1298, we described contracts of adhesion in the securities context and the circumstances under which they are unenforceable. Contracts of adhesion arise when a standardized form of agreement, usually drafted by the party having superior bargaining power, is presented to a party, whose choice is either to accept or reject the contract without the opportunity to negotiate its terms. Here, the investor is faced with an industry wide practice of including Arbitration Clauses in standardized brokerage contracts. As the investor faces the possibility of being excluded from the securities market unless he accepts a contract with such an agreement to arbitrate, such clauses come within the adhesion doctrine. However, mere inequality in bargaining power does not render a contract unenforceable, nor are all standardized contracts unenforceable. As a consequence of current commercial realities, form forum clauses will control, absent a strong showing it should be set aside. For such a contract or clause to be void, it must fall within judicially imposed limits of enforcement. It will not be enforced against the weaker party when it is: (1) not within the reasonable expectations of said party or (2) within the reasonable expectations of the party, but, when considered in its context, is unduly oppressive, unconscionable, or against public policy. [Citations omitted.] Passage, 223 Mont. at 66, 727 P.2d at 1301-02 (quoting Finkle and Ross v. A.G. Becker Paribas, Inc. (D.C.N.Y. 1985), 622 F.Supp. 1505, 1511-12). ¶25 We enforced the arbitration agreements in Passage because there was no evidence that they were not within the parties’ reasonable expectation nor was there evidence that they were unconscionable. ¶26 In Chor, we were again called on to decide whether arbitration provisions in securities agreements were contracts of adhesion and, if so, whether the arbitration clause is unconscionable. We concluded that the arbitration agreement was not a contract of adhesion because the consumer had testified that she had brokerage agreements with other firms which did not require her to arbitrate future disputes. We also held that the arbitration provision was clearly within Chor’s reasonable expectations based on her own testimony that she understood her obligation to arbitrate based on her review of the agreement. Finally, we concluded that the broker in that case had no obligation to explain the effect of the arbitration clause because a fiduciary duty had not been established. We held that: In the absence of discretionary authority by a stockbroker to buy and sell in a customer’s account, no fiduciary relationship is created in a broker-customer relationship. Caravan Mobile Home Sales v. Lehman Bros. Kuhn Loeb (9th Cir. 1985), 769 F.2d 561, 567. Chor, 261 Mont. at 153, 862 P.2d at 32. ¶27 We conclude that both Passage and Chor are distinguishable, based on their facts, from this case. First, based on Judge Johnson’s findings which are neither appealed nor contradicted by Judge Macek’s findings, Kloss’ agreements with Jones are clearly contracts of adhesion. They were standardized forms prepared by Jones and presented to Kloss who had no opportunity to negotiate the terms of the contracts if she chose to invest through Jones. Furthermore, the arbitration clause was found by Judge Johnson to be an industry-wide practice. Kloss would have been excluded from the securities market unless she accepted the agreement to arbitrate. ¶28 Furthermore, unlike the facts in Passage and Chor, the District Court’s findings clearly establish that the arbitration provision by which Kloss waived her right of access to this State’s courts, her right to a jury trial, her right to reasonable discovery, her right to findings of fact based on the evidence, and her right to enforce the law applicable to her case by way of appeal were clearly not within Kloss’ reasonable expectations. Kloss relied on Husted to explain to her anything in the contract that was significant. Husted, in fact, admitted that his normal practice when opening accounts was to explain significant features of the account to the investor. However, he did not explain the arbitration provision (a provision by which Kloss waived at least two constitutional rights, i.e., a right of access to the courts pursuant to Article II, Section 16, and her right to a jury trial pursuant to Article II, Section 26 of the Montana Constitution) to Kloss. Finally, based on the routine practice between the parties, Kloss did not read the contract and was not aware of the arbitration provision in the contract. ¶29 Judge Macek’s conclusion that the arbitration provision was within Kloss’ reasonable expectation simply because it was contained in the contract that she signed would defeat the protections provided by principles of law pertaining to contracts of adhesion. If the only question was whether the written terms of a contract included the challenged provision, reasonable expectations would never become an issue. Contracts of adhesion would always be enforced based on their plain language without regard to what the consumer knew or understood. However, that is not the law pertaining to contracts of adhesion as previously set forth in our prior decisions which apply to any contract. ¶30 We have also been asked to conclude on appeal that the arbitration provisions found in Kloss’ agreements with Jones are unconscionable. However, having concluded that the agreements were not within Jones’ reasonable expectations, we need not reach the issue of conscionability. Furthermore, as a guide to future litigants who raise the issue of conscionability in the context of arbitration provisions, we take this opportunity to state that that issue cannot be decided without a more fully developed record. We have set forth the factors to be considered in liven, however, a number of factual issues should be addressed before those factors can be appropriately applied. For example: 1. Are potential arbitrators disproportionately employed in one or the other party’s field of business? 2. Do arbitrators tend to favor “repeat players” as opposed to workers or consumers who are unlikely to be involved in arbitration again? In other words, is there a tendency by arbitrators to avoid decisions which will result in the loss of future contracts for their services? 3. What are the filing fees for arbitration compared to the filing fees in Montana’s district courts? 4. What are arbitrators’ fees? Do they make small claims prohibitive? Do they discriminate against consumers or workers of modest means? 5. Are arbitration proceedings shrouded in secrecy so as to conceal illegal, oppressive or wrongful business practices? 6. To what extent are arbitrators bound by the law? 7. To what extent are arbitrators bound by the facts? 8. What opportunity do claimants have to discover the facts necessary to prove a claim such as a company’s business practices? ¶31 These are all issues which we consider relevant to the ultimate issue of whether an arbitration provision in a contract of adhesion is oppressive or unconscionable. Therefore, we would advise future claimants not to come to this Court with claims of oppression or unconscionability unless the record in regard to these issues has been adequately developed. ¶32 For these reasons we conclude, based on generally applicable contract law defenses, that the District Court erred when it concluded that the arbitration clauses contained in the 1992 and 1998 Full Service agreements were enforceable. ISSUE 2 ¶33 Did the District Court err when it failed to consider whether Defendants owed Kloss a fiduciary duty to explain the arbitration agreement? ¶34 Kloss contends that the District Court erred when it found that the parties were dealing at arms length and that the Defendants consequently had no obligation to explain the arbitration provision. According to Kloss, Husted had a fiduciary relationship with Kloss because he had the discretion to trade securities in her account. The Defendants argue that Husted did not have the discretion to trade in Kloss’ account and that Kloss misreads the provision which she claims gave Husted discretionary authority. ¶35 Whether Kloss and Husted, as broker and client, enjoyed a fiduciary relationship is highly fact intensive. “The question is not whether there is a fiduciary duty, which there is in every broker-customer relationship; rather, it is the scope or extent of the fiduciary obligation, which depends on the facts of the case.” Duffy v. Cavalier (1989), 215 Cal. App. 3d 1517, 1535, 264 Cal.Rptr. 740, 752. In Chor, we held that although § 30-10-301(1), MCA, may create an implied code of conduct for brokers, a violation of which may constitute a breach of the duty the broker owes to a client, that duty is not necessarily fiduciary in nature. “In the absence of discretionary authority by a stockbroker to buy and sell in a customer’s account, no fiduciary relationship is created in a broker-customer relationship.” Chor, 261 Mont. at 153, 862 P.2d at 32. Therefore, pursuant to our analysis in Chor, a fiduciary relationship is created whenever a broker has discretion to buy and sell in the client’s account. ¶36 Here, Jones and Husted had discretion to buy and sell securities in Kloss’ account pursuant to the 1992 Agreement. Specifically, the “Liquidation of Collateral or Account” section of the Agreement states: You may sell any or all property held in any of my accounts and cancel any open orders for the purchase or sale of any property without notice, in the event of my death or whenever in your discretion you consider it necessary for your protection. Furthermore, Kloss testified that Husted exercised that discretion when he selected and sold securities from her account to fund the newly created charitable trust without consulting her regarding which securities to sell. ¶37 Therefore, based on the plain language of the Agreement and Husted’s selection and sale of securities in Kloss’ account, we conclude that Kloss and Husted had a fiduciary relationship. In the words of Chief Judge Cardozo of the Court of Appeals of New York, a fiduciary duty is “the duty of the finest loyalty” and encompasses “[n]ot honesty alone, but the punctilio of an honor the most sensitive.” Meinhard v. Salmon (1928), 249 N.Y. 458, 463-64, 164 N.E. 545, 546. In light of the substantial fiduciary obligations owed to his client, Husted should have explained the arbitration clause, a clause which effectively waived the constitutional rights of a 95 year old widow with no bargaining power and a relative lack of sophistication in such matters. However, as the District Court found, Husted did not consider the arbitration provision to be a significant provision of the contract and therefore did not explain the arbitration provision to Kloss. The irony of the Defendants’ position is not lost on this Court, as the supposedly insignificant arbitration provision they now seek to enforce to the detriment of Kloss’ constitutionally protected rights of access to court and trial by jury is now squarely at the center of this appeal. ¶38 We hold that Husted owed Kloss a fiduciary duty which included explaining the consequences of the arbitration provision Jones now seeks to enforce. Accordingly, we conclude that the District Court erred when it failed to consider whether a fiduciary duty existed. ISSUE 3 ¶39 Did the District Court err when it denied Kloss’ motion for attorney’s fees and costs? ¶40 Kloss contends that the District Court erred when it denied the claim for the opportunity to conduct discovery in an effort to prove that Kloss was entitled to attorney fees based on Jones’ untimely disclosure of the detachable signature card. That issue was remanded to the District Court, which according to Kloss, should have made the determination of whether she was entitled to attorney fees. ¶41 Jones responds that the District Court did not err when it denied discovery on the attorney fee issue after reading the entire file, including prior transcripts and court orders. Jones contends that the District Court had the discretion to conclude that further evidence of the issue of attorney fees was unnecessary. ¶42 Attorney fees and costs may be awarded when: An attorney or party to any court proceeding who, in the determination of the court, multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorney fees reasonably incurred because of such conduct. § 37-61-421, MCA. ¶43 In its May 7, 2001, Order, the District Court found that the Defendants did not unreasonably or vexatiously multiply the proceedings. After reviewing the record, we conclude that the District Court’s finding was not clearly erroneous. Consequently, we affirm the District Court’s order denying the motion for attorney fees and costs. ¶44 This case is remanded to the District Court for further proceedings consistent with this opinion. JUSTICES COTTER, NELSON and LEAPHART concur.
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JUSTICE TRIEWEILER delivered the Opinion of the Court. ¶1 Petitioner, Debra L. Udelhoven, filed a Petition for Judicial Review of a Modification Consent Order of the Department of Public Health and Human Services (DPHHS), Child Support Enforcement Division (CSED), in the District Court for the Tenth Judicial District Court in Judith Basin County. The Modification Consent Order reduced the child support obligation of the Respondent, Mark T. McGurran. CSED moved to dismiss the petition for failure to exhaust administrative remedies and lack of jurisdiction. The District Court granted the motion to dismiss based on lack of jurisdiction. Udelhoven appeals the District Court’s dismissal. We reverse the order of the District Court. ¶2 The sole issue on appeal is whether the District Court erred as a matter of law when it dismissed the Petition for Judicial Review for lack of jurisdiction based on its conclusion that the petition should have been filed in a different county. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On January 11, 2001, Mark T. McGurran filed a Request for Review of a CSED administrative child support order which had been issued on November 17,1998. The November 17,1998, order required McGurran to pay $703 every month to Debra L. Udelhoven for the support of their son. It also required that he provide health insurance coverage for their child. ¶4 On April 4, 2001, CSED issued a Modification Consent Order which reduced McGurran’s child support obligation from $703 a month to $432 a month. McGurran remained responsible for providing health insurance coverage. The effective date of the modification was April 1, 2001. Prior to that date, CSED had sent a copy of the proposed modification to both McGurran and Udelhoven. In a letter dated February 28, 2001, CSED informed Udelhoven that the Modification Consent Order would take effect if arbitration was not requested by April 2,2001. CSED did not receive an arbitration request prior to that date. ¶5 On or about April 16,2001, Udelhoven filed a Petition for Judicial Review of the Modification Consent Order in the District Court for Judith Basin County. At the time the petition was filed, Udelhoven resided in Colorado and CSED had its primary office in Lewis & Clark County. ¶6 CSED filed a Motion to Dismiss the Petition for Judicial Review on two grounds. First, CSED claimed that Udelhoven had failed to exhaust her administrative remedies because she had not requested arbitration. Second, CSED claimed that the District Court lacked subject matter jurisdiction because the action was filed in the wrong county. The District Court granted CSED’s Motion to Dismiss based on its conclusion that because the petition was filed in the wrong county, it was without jurisdiction. On June 25,2001, Udelhoven appealed the District Court’s order granting CSED’s Motion to Dismiss. STANDARD OF REVIEW ¶7 “[A] district court’s determination that it lacks jurisdiction over a matter is a conclusion of law which we review to determine whether the district court’s interpretation of the law is correct.” In re McGurran, 1999 MT 192, ¶ 7, 295 Mont. 357, ¶ 7, 983 P.2d 968, ¶ 7 0citing Hilands Golf Club v. Ashmore (1996), 277 Mont. 324, 328, 922 P.2d 469, 472). DISCUSSION ¶8 Did the District Court err as a matter of law when it dismissed the Petition for Judicial Review for lack of jurisdiction based on its conclusion that the petition should have been filed in a different county? ¶9 Udelhoven contends that the District Court confused the concepts of jurisdiction and venue, and, as a result, erred as a matter of law when it granted CSED’s Motion to Dismiss for lack of jurisdiction. Udelhoven argues that jurisdiction refers to the inherent power of a court to decide a controversy, whereas venue designates the particular county or city in which a court with jurisdiction may hear and determine the case. Accordingly, because all Montana district courts have subject matter jurisdiction over petitions for judicial review of administrative decisions, Udelhoven asserts that CSED’s failure to file in the proper county did not divest the District Court of subject matter jurisdiction. Udelhoven, therefore, contends that the District Court’s conclusion that it lacked jurisdiction based on improper venue was incorrect as a matter of law. ¶10 CSED contends that its Motion to Dismiss for lack of jurisdiction was proper because the Legislature has the sole discretion to define the scope of judicial review of administrative decisions and has provided certain requirements which define the district court’s authority. It asserts that Udelhoven’s failure to follow the requirements of § 2-4-702(2)(a), MCA, which includes filing in the proper venue, divested the District Court of jurisdiction. ¶11 The District Court agreed with CSED. The District Court concluded that “MCA § 2-4-702(2)(a) is more than a mere venue statute; it is the legislative designation under Montana’s Constitution, Article VII, § 4 of the particular courts to have jurisdiction for judicial review.” The District Court interpreted § 2-4-702(2)(a), MCA, as a requirement that “a petition for judicial review must be filed in the correct venue for the court to obtain jurisdiction.” We conclude that the District Court’s interpretation of the law is incorrect. ¶12 This Court has long recognized the distinction between “jurisdiction” and “venue.” In general terms, jurisdiction is a court’s authority to hear and determine a case, and goes to the “power” of the court. Stanton Trust & Savings Bank v. Johnson (1937), 104 Mont. 235, 235, 65 P.2d 1188, 1189. Jurisdiction cannot be waived or conferred by consent of the parties where there is no basis for jurisdiction tinder the law. In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380. ¶13 Venue, on the other hand, refers to the place where the case is to be heard, or where the power of the court can be exercised. Stanton Trust, 104 Mont. at 235, 65 P.2d at 1189. Venue is a personal privilege of the defendant and, thus, may be waived. It is, in fact, deemed waived unless a motion to change the venue is made at the defendant’s initial appearance. Rule 12(b)(ii), M.R.Civ.P. ¶14 The distinction between jurisdiction and venue is clearly expressed in the most recent edition of Black’s Law Dictionary, which states: The distinction must be clearly understood between jurisdiction, which is the power to adjudicate, and venue, which relates to the place where judicial authority may be exercised and is intended for the convenience of the litigants. It is possible for jurisdiction to exist though venue in a particular district is improper, and it is possible for a suit to be brought in the appropriate venue though it must be dismissed for lack of jurisdiction. The most important difference between venue and jurisdiction is that a party may consent to be sued in a district that otherwise would be an improper venue, and it waives its objection to venue if it fails to assert it promptly. Black’s Law Dictionary 1554 (7th ed. 1999) (citing Charles Alan Wright, The Law of Federal Courts § 42, at 257 (5th ed. 1994)). Although the cited treatise author was referring to federal courts, the distinction is equally applicable to Montana state courts. Another noted legal scholar distinguished jurisdiction from venue in the following way: Jurisdiction deals with the power of a court to hear and dispose of a given case; .... Venue is of a distinctly lower level of importance; it is simply a statutory device designed to facilitate and balance the objectives of optimum convenience for parties and witnesses and efficient allocation of judicial resources. Black’s Law Dictionary 1553-54 (7th ed. 1999) (citing Jack H. Friedenthal et al., Civil Procedure § 2.1, at 10 (2d ed. 1993)). ¶15 Here, Udelhoven’s filing of a Petition for Judicial Review vested the District Court with jurisdiction. Pursuant to Article VII, Section 4, Subsection 1 of the Montana Constitution, “[t]he district court has original jurisdiction in ... all civil matters and cases at law and in equity.” See also § 3-5-302(l)(b) and -(c), MCA. Statutorily, jurisdiction to review administrative decisions is conferred on district courts by § 2-4-702(2)(a), MCA, of the Montana Administrative Procedure Act, which states in relevant part that: Except as provided in subsection (2)(c), proceedings for review must be instituted by filing a petition in district court within 30 days after service of the final decision of the agency or, if a rehearing is requested, within 30 days after the decision is rendered. Because Montana district courts are vested with jurisdiction over appeals from final administrative decisions in contested cases, the Tenth Judicial District could hear and decide Udelhoven’s Petition for Judicial Review. ¶16 Whether venue was proper in Judith Basin County involved an entirely different issue for the District Court’s consideration. Section 2-4-702(2)(a), MCA, in addition to granting jurisdiction to the District Court, also sets forth the proper place where a contested administrative decision can be heard, and provides: Except as otherwise provided by statute, the petition must be filed in the district court for the county where the petitioner resides or has the petitioner’s principal place of business or where the agency maintains its principal office. Such a requirement is nothing more than a venue provision, and is no different than any other venue provision contained within Montana Code Annotated. Venue provisions are not jurisdictional. See generally § 25-2-112, MCA (“The designation of a county in this part [Title 25, Chapter 2, Part 1] as a proper place of trial is not jurisdictional and does not prohibit the trial of any cause in any court of this state having jurisdiction.”). ¶17 The distinction between jurisdiction and venue is further illustrated by the requirement in § 2-4-702(2)(b), MCA, that a petition for judicial review must “include a concise statement of the facts upon which jurisdiction and venue are based ....” (Emphasis added.) Requiring that facts upon which both jurisdiction and venue are based be separately set forth recognizes that they are different requirements. ¶18 The District Court’s conclusion that the venue provision set forth in § 2-4-702(2)(a), MCA, is jurisdictional is incorrect as a matter of law. Upon proper motion, this matter should have been transferred to the proper county. However, CSED instead filed its Motion to Dismiss for lack of jurisdiction. By failing to file a motion to change venue at the time of CSED’s first appearance, CSED waived its right to later object to venue. Rule 12(b)(ii), M.R.Civ.P.; see also Spiker Communications v. Dept. of Commerce, 1998 MT 32, ¶ 10, 287 Mont. 345, ¶ 10, 954 P.2d 1145, ¶ 10. The District Court in Judith Basin County is, therefore, a proper place for trial of this matter absent agreement by the parties to transfer venue. ¶19 Accordingly, we reverse and remand to the District Court for further proceedings consistent with this Opinion. JUSTICES LEAPHART, COTTER, REGNIER and RICE concur.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 James Andrew McNally (McNally) was charged in the Twenty-First Judicial District Court with Driving Under the Influence (DUI), fourth or subsequent offense, a felony, to which he plead no contest. Prior to sentencing, McNally sought to reduce the charge from a felony to a misdemeanor, by arguing that his prior convictions in Colorado for driving while impaired did not constitute previous convictions under a similar statute for the purposes of determining the number of prior DUI convictions under Montana law. The District Court concluded that Colorado's law was substantially similar to Montana's DUI statute, and accordingly sentenced McNally for a fourth DUI, a felony. McNally appeals the District Court's ruling. We reverse. ¶2 The dispositive issue presented is whether McNally's prior convictions under Colorado's "Driving While Ability Impaired" provision qualified as DUI convictions when sentencing McNally for Felony DUI under Montana's DUI statutes. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On September 1,2000, McNally was charged by Information with Count I, DUI, fourth or subsequent offense, a felony, and Count II, Driving While License Suspended or Revoked, a misdemeanor. On February 12, 2001, the parties reached an agreement, whereby McNally agreed to plead no contest to Count I, while still reserving the right to file a motion to reduce the charge to a misdemeanor, and the State dismissed Count II. Prior to sentencing, McNally filed a sentencing brief, arguing that his prior convictions in Colorado for "Driving While Ability Impaired" (DWAI) did not constitute previous convictions under a similar statute for the purposes of enhancing Count I to Felony DUI under § 61-8-734, MCA, and thus asserted he could be sentenced only for a first offense DUI, a misdemeanor. It was undisputed that McNally had four previous convictions under Colorado's DWAI statute. ¶4 The District Court conducted McNally's sentencing hearing on April 4,2001. After hearing arguments from both parties on McNally's motion and reviewing the Colorado and Montana DUI statutes, the District Court concluded that Colorado's impairment statute was substantially similar to Montana's DUI statute, and denied McNally's motion to reduce the charge from a felony to a misdemeanor. The District Court sentenced McNally to the Department of Corrections for a term of thirteen months, followed by four years of formal probation. McNally appeals from the District Court's oral Judgment on April 4, 2001, and the District Court's final Judgment and Commitment entered on April 25, 2001. STANDARD OF REVIEW ¶5 When this Court reviews a district court's conclusions of law regarding the application of a statute, our standard of review is "whether the tribunal's interpretation of the law is correct." State v. Peplow, 2001 MT 253, ¶ 17, 307 Mont. 172, ¶ 17, 36 P.3d 922, ¶ 17 (citing State v. Henning (1993), 258 Mont. 488, 490-91,853 P.2d 1223, 1225). See also, State v. Anderson, 2001 MT 188, ¶ 19, 306 Mont. 243, ¶ 19, 32 P.3d 750, ¶ 19 (when reviewing a district court's conclusions of law, our standard of review is plenary and we must determine whether the district court's conclusions are correct as a matter of law). DISCUSSION ¶6 Did McNally's prior convictions under Colorado's "Driving While Ability Impaired" provision qualify as DUI convictions when sentencing McNally for Felony DUI under Montana's DUI statutes? ¶7 In Montana, offenses related to driving under the influence of alcohol or drugs are generally charged under either § 61-8-401, MCA (DUI), or § 61-8-406, MCA (DUI per se). Section 61-8-401, MCA provides: (1) It is unlawful and punishable, as provided in 61-8-442, 61-8-714, and 61-8-731 through 61-8-734, for a person who is under the influence of: (a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public; (b) a dangerous drug to drive or be in actual physical control of a vehicle within this state; (c) any other drug to drive or be in actual physical control of a vehicle within this state; or (d) alcohol and any dangerous or other drug to drive or be in actual physical control of a vehicle within this state. (3) "Under the influence" means that as a result of taking into the body alcohol, drugs, or any combination of alcohol and drugs, a person's ability to safely operate a vehicle has been diminished. (4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person at the time of a test, as shown by analysis of a sample of the person's blood or breath drawn or taken within a reasonable time after the alleged act, gives rise to the following inferences: (a) If there was at that time an alcohol concentration of 0.04 or less, it may be inferred that the person was not under the influence of alcohol. (b) If there was at that time an alcohol concentration in excess of 0.04 but less than 0.10, that fact may not give rise to any inference that the person was or was not under the influence of alcohol, but the fact may be considered with other competent evidence in determining the guilt or innocence of the person. (c) If there was at that time an alcohol concentration of 0.10 or more, it may be inferred that the person was under the influence of alcohol. The inference is rebuttable. (5) The provisions of subsection (4) do not limit the introduction of any other competent evidence bearing upon the issue of whether the person was under the influence of alcohol, drugs, or a combination of alcohol and drugs. In addition to § 61-8-401, MCA, Montana also sets out a DUI per se provision, which makes it unlawful to drive or be in actual physical control of a noncommercial vehicle if a person's blood alcohol concentration (BAC) is 0.10 or more. Section 61-8-406(l)(a), MCA. ¶8 Montana's DUI per se provision is similar to Colorado's. See Colo. Rev. Stat. § 42-4-1301(2)(a) (it is unlawful to drive any vehicle if person's BAC is 0.10 or more at the time of driving or within two hours after driving). However, Colorado law defines DUI differently than Montana does, and significantly, also provides for a DWAI ("Driving While Ability Impaired") violation, which finds no counterpart in Montana law. See Colo. Rev. Stat. § 42-4-1301(l). ¶9 Under Colorado's DUI statute, "[i]t is a misdemeanor for any person who is under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, to drive any vehicle in this state." Colo. Rev. Stat. § 42-4-1301(l)(a). Colorado law defines "driving under the influence" as: driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs affects the person to a degree that the person is substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Colo. Rev. Stat. § 42~4-1301(l)(f) (emphasis added). ¶10 Colorado law also provides a third DUI-related offense, DWAI. In Colorado, "[i]t is a misdemeanor for any person who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive any vehicle in this state." Colo. Rev. Stat. § 42-4-1301(l)(b). "Driving while ability impaired" means: driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle. Colo. Rev. Stat. § 42-4-1301(l)(g) (emphasis added). ¶11 When sentencing McNally in the instant action for a felony in violation of § 61-8-401, MCA, the District Court relied upon McNally's four prior DWAI convictions in Colorado. Under Montana law, a person is guilty of a felony on the fourth or subsequent conviction for violating either § 61-8-401, MCA, or § 61-8-406, MCA. Section 61-8-731(1) MCA. When calculating the number of prior convictions for sentencing purposes^ a prior DUI conviction includes "conviction for a violation of a similar statute or regulation in another state." Section 61-8-734(l)(a), MCA. Therefore, we must determine if the District Court correctly concluded that Colorado's DWAI was "similar" to Montana's DUI provision. ¶12 A parallel issue was considered in State v. Montanye (1993), 262 Mont. 258, 864 P.2d 1234, where Montanye challenged Montana's six month suspension of his driver's license following notification that he had been convicted of DWAI in New York. Montanye argued that New York's provision was not substantially similar to Montana's DUI statute, and thus Montana could not suspend his license based on that conviction. The majority in Montanye noted that both states' laws dealt with a driver's diminished ability to drive while under the influence of alcohol and both laws carried the potential for a fine, imprisonment, and loss of license. Montanye, 262 Mont. at 261, 864 P.2d at 1236. However, as is the case here, the significant difference between the two states' provisions was the standard under which a person could be convicted: New York's DWAI provision prohibited driving when alcohol "impaired" a person's ability to drive, while Montana's DUI provision prohibited operating a vehicle when a person's ability was "diminished." ¶13 Unlike the Colorado laws which we construe here, New York's DUI statutes did not define "intoxication" or "impaired," so the majority in Montanye looked to New York case law for guidance. Based on New York's common law definition of "intoxication" (consumption of enough alcohol so that a person's "physical and mental control are markedly diminished," or "that his judgment and ability to operate a motor vehicle are adversely affected to a substantial degree"), the majority deduced that under New York law, "driving while alcohol impaired" meant "the degree of impairment is somewhat less than markedly diminished," and concluded that New York's DWAI provision was substantially similar to Montana's DUI statute. Montanye, 262 Mont. at 262 and 264, 864 P.2d at 1236 and 1238 (emphasis omitted). ¶14 In reaching this conclusion, however, the majority chose not to apply City of Helena v. Davis (1986), 222 Mont. 492, 723 P.2d 224, where we held it was error to instruct the jury that it could convict the defendant of DUI if his ability to drive had been "lessened in the slightest degree." Although the "slightest degree" instruction had been approved in State v. Cline (1959), 135 Mont. 372, 339 P.2d 657, we noted that Cline was decided under DUI law from 1955, which, unlike the current DUI statutes, did not provide any limitations on the extent of influence required to support a DUI conviction (i.e., inferences of impairment based on BAC now found at § 61-8-401(4)(a)-(c), MCA ). Davis, 222 Mont. at 496, 723 P.2d at 226-27. We concluded in Davis that due to the addition of these presumptions, instructing the jury that a person was under the influence if his ability to drive had been "lessened in the slightest degree," was no longer a proper statement of Montana's DUI law. Davis, 222 Mont. at 497, 723 P.2d at 227. ¶15 In his dissent in Montanye, in which Justices Gray and Hunt joined, Justice Trieweiler contended that given our holding in Davis, the degree of impairment required to convict a person under New York's DWAI provision would not have been sufficient to convict a person under Montana's DUI statute, and thus concluded the two provisions were not substantially similar. Montanye, 262 Mont. at 266, 864 P.2d at 1239. Justice Trieweiler argued that our holding in Davis established that "any degree of impairment," was not sufficient to convict a person of DUI in Montana. Montanye, 262 Mont. at 267-68, 864 P.2d at 1239-40. ¶16 In response to the dissent, the majority maintained that the 1987 Amendments to § 61-8-401, MCA, undermined our holding in Davis, making it inapplicable, and noted that, "[i]n 1987, the legislature determined that 'under the influence' is not exclusively determined by the blood's alcoholic content... [n]ow 'under the influence' is defined by the diminution of a person's ability to drive a vehicle." Montanye, 262 Mont. at 258, 864 P.2d at 1237-38. Justice Trieweiler countered the majority's argument by noting that although "under the influence" was defined separately after 1987, the presence or absence of such a definition was not the basis on which Davis was decided. Montanye, 262 Mont. at 267-68, 864 P.2d at 1240. ¶17 Having revisited Montanye and Davis, and for the reasons set forth below, we disagree that the 1987 Amendments stripped Davis of any precedential significance, and conclude that our holding in Davis has significance not only for the issue presented in Montanye, but also in the instant action. ¶18 Prior to 1987, § 61-8-401, MCA, did not include a definition of "under the influence." At that time, § 61-8-401, MCA (1985), provided in relevant part: (1) It is unlawful and punishable as provided in 61-8-714 for any person who is under the influence of: (a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public; (b) a narcotic drug to drive or be in actual physical control of a vehicle within this state; (c) any other drug to a degree which renders him incapable of safely driving a vehicle to drive or be in actual physical control of a vehicle within this state; or (d) alcohol and any drug to a degree that renders him incapable of safely driving a vehicle to drive or be in actual physical control of a vehicle within this state. In 1987, the Legislature amended § 61-8-401, MCA, by striking "to a degree which (that) renders him incapable of safely driving a vehicle," from subsections (l)(c) and (l)(d), and adding subsection (3), which provided that" '[u]nder the influence' means that as a result of taking into the body alcohol, drugs, or any combination thereof, a person's ability to safely operate a motor vehicle has been diminished." See 1987 Mont. Laws Ch. 612, Sec. 1. ¶19 When interpreting statutes, this Court's only function is to give effect to the intent of the Legislature. Carlson v. City of Bozeman, 2001 MT 46, ¶ 15, 304 Mont. 277, ¶ 15, 20 P.3d 792, ¶ 15 (citing Albright v. State, by and through State (1997), 281 Mont. 196, 206, 933 P.2d 815, 821). While legislative intent must first be determined from the plain meaning of the words in the statute, where the plain meaning of a statute is subject to more than one reasonable interpretation, we will examine the legislative history to discern intent. Carlson, ¶ 15 (citations omitted). Moreover, in determining legislative intent, this Court will construe criminal statutes "with a view to effect their object and promote justice." State v. Goebel, 2001 MT 73, ¶ 17, 305 Mont. 53, ¶ 17, 31 P.3d 335, ¶ 17 (citing City of Missoula v. Gillispie, 1999 MT 268, ¶ 25, 296 Mont. 444, ¶ 25, 989 P.2d 401, ¶ 25). It is apparent from a review of Montanye that the Court did not consider the legislative history underlying the 1987 Amendments in reaching its opinion. We find that history significant, and therefore analyze it here. ¶20 Section 61-8-401, MCA (1985), was amended in 1987 by House Bill 163 (HB 163), sponsored by Representative Mercer. The original draft of HB 163 proposed that "under the influence," should mean that "as a result of taking into the body alcohol, drugs, or any combination thereof, a person's ability to safely operate a motor vehicle has been lessened to the slightest degree" (emphasis added). According to minutes from the first House Judiciary Committee meeting on January 20, 1987, the specific wording ("lessened to the slightest degree") was chosen in an attempt to return the law to the pre-Davis position (i.e., so as to allow use of jury instruction that allowed conviction if defendant's ability to drive was "lessened by the slightest degree"). However, on February 10, 1987, Representative Mercer moved to amend HB 163 by striking "lessened to the slightest degree," and inserting "diminished" in its place. It was this version of HB 163 which the 1987 Legislature enacted. While the record is not clear as to the reason for the change, it is apparent that the "lessened to the slightest degree" standard for establishing whether someone is under the influence was specifically rejected by the 1987 Legislature. Thus, the Legislature recognized a distinction between the two degrees of impairment. That same distinction is important here. ¶21 We conclude that our holding in Davis was applicable to the issue presented in Montanye. In Davis, we held that a "slightest degree" instruction was not appropriate in light of the addition of the statutory provisions that allowed certain presumptions to be made concerning whether a person was under the influence of alcohol. Nothing in the 1987 Amendments altered the burden of proof required to establish that someone was under the influence; in fact, the Legislature specifically rejected the lower standard of "slightest degree." Therefore, our holding in Davis should have been considered and applied in Montanye, and accordingly we overrule Montanye at this time. ¶22 Returning to the instant case, we must compare the standards of culpability for DUI under Colorado law to the standard of culpability under Montana law. In Colorado, a person is "driving under the influence" if he or she is "substantially incapable" of safely operating a vehicle, while a person is "driving while impaired," if his or her ability to drive is affected to the "slightest degree." Montana law does not permit similar gradations of culpability. In Montana, a person simply may not be convicted for DUI if his or her ability is impaired "to the slightest degree." Thus, we apply the Davis holding to the instant action and conclude that because Colorado's DWAI provision allows a person to be convicted under a lower standard than that required under Montana's DUI statute, McNally's prior convictions in Colorado do not constitute "conviction[s] for a violation of a similar statute ... in another state," as required under § 61-8-734(l)(a), MCA, and therefore do not qualify as convictions for the purposes of enhancing McNally's DUI conviction to a felony. ¶23 Accordingly, we conclude it was error to enhance McNally's DUI conviction to a felony based on his convictions under Colorado's DWAI statute. We therefore reverse and remand for vacation of McNally's Felony DUI conviction, and for further proceedings not inconsistent with this Opinion. CHIEF JUSTICE GRAY, JUSTICES LEAPHART, REGNIER, TRIEWEILER, RICE and NELSON concur. bilthough both Colorado and Montana have DUI provisions specific to under-age drinkers (including minors) and commercial drivers, nothing in the record indicates McNally was convicted under those types of provisions. Accordingly, we will address only those provisions concerning adult, noncommercial, drivers. Montanye was decided under the Driver License Compact, which required us to determine if the New York DWAI offense was of a "substantially similar nature" to Montana's DUI provision. See, § 61-5-401, Article IV (3), MCA. Here, we are applying only § 61-8-734(l)(a), MCA, and therefore must determine if the Montana and Colorado statutes are "similar." The "under the influence" inferences based on a person's BAC which are now found at § 61-8-401(4), MCA, were originally enacted in 1957 as "presumptions." See 1957 Mont. Laws Ch. 194, Sec. 1 (amending 1955 Mont. Laws Ch. 263, Sec. 39). However, in 1991 all references to "presumed" or "presumptions" were replaced with references to "inferred" or "inferences." See 1991 Mont. Laws Ch. 789, Sec. 1. For clarity, references to this provision will continue to use the term presmnption(s).
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JUSTICE TRIEWEILER delivered the Opinion of the Court. ¶1 P.W., the father of M.W. and L.W., appeals from the Findings of Fact, Conclusions of Law and Order issued by the District Court for the Eighteenth Judicial District in Gallatin County, which awarded long-term custody of M.W. to the Department of Public Health and Human Services (DPHHS). We affirm the order of the District Court. ¶2 The sole issue on appeal is whether P.W. was denied fundamentally fair procedures in the proceedings by which the District Court awarded long-term custody of M.W. to DPHHS. FACTUAL AND PROCEDURAL BACKGROUND ¶3 P.W. is the natural father of M.W. and L.W. M.W. was born on September 30,1986. L.W. was born on April 16, 1984. P.W. is divorced from the children’s natural mother, R.B., who had not seen her children for the nine years prior to these proceedings, and does not appeal from the District Court’s order. The children have resided solely with P.W. ¶4 DPHHS removed M.W. and L.W. from P.W.’s care on July 19, 1999, and placed them in protective custody. On July 23,1999, DPHHS filed a petition for temporary legal custody pursuant to §§ 41-3-401 and -406, MCA (1999), based on DPHHS’ involvement with the children beginning in May of 1995. The District Court ordered M.W. and L.W. to remain in protective custody pending a hearing set for August 6, 1999. At that hearing, both P.W. and R.B. agreed to grant DPHHS temporary custody, based on their inability to care for the children’s special needs. The District Court declared M.W. and L.W. to be youths in need of care and granted DPHHS temporary legal custody of the children for six months. ¶5 On February 4, 2000, DPHHS filed a petition for extension of its temporary legal custody, which was set to expire on February 6, 2000. Neither P.W. nor R.B. objected, and the guardian ad litem supported the extension. On February 17, 2000, the District Court granted the extension for another six months. ¶6 On September 1, 2000, DPHHS filed a petition for long-term custody, and requested: (1) that a permanency hearing be held; (2) that following that hearing, the District Court grant DPHHS long-term custody of M.W. and L.W.; and (3) that long-term custody become the permanency plan for the children. DPHHS explained that the children were not ready to return to their parents’ care based on the severity of their ongoing psychological and emotional problems. On September 12, 2000, the District Court ordered temporary legal custody to continue “from August 17, 2000, until the hearing on the [long-term custody] petition.” The hearing was originally set for November 14, 2000, but was rescheduled by the District Court for December 4, 2000, because of a scheduling conflict. ¶7 At the start of the December 4,2000, hearing, DPHHS moved for a continuance, based on its previous belief that the parents were going to agree to the long-term custody petition. Based on that belief, DPHHS did not subpoena the children’s therapists as witnesses. The basis for DPHHS’ petition for long-term custody was not the parents’ refusal or failure to comply with their treatment plans, but that pursuant to § 41-3-412(6)(c)(i), MCA(1999), the children had emotional or mental handicaps so severe that the children could not function in a family setting. Therefore, testimony from the children’s therapists would have been necessary to determine the extent of the children’s emotional or mental handicaps. ¶8 P.W. objected to the continuance as highly prejudicial. The District Court denied DPHHS’ motion for a continuance, stating: [T]he Department and the County Attorney’s office has had adequate and sufficient time to be prepared for the hearing today. There’s not been a permanency plan hearing within the twelve months required by law if we have to do that. So we’re going to proceed. If the Court were to continue this, the Court could not hear this case in December, and I’m not certain if the Court could hear it in January so we’re proceeding. DPHHS, therefore, presented its case with one witness, the State social worker assigned to the case. The social worker testified that P.W. had completed his parenting plan, yet believed that neither parent was capable of providing for the needs of the children. Following the social worker’s testimony, the DPHHS attorney stated, “I don’t have further questions for Ms. Bennett at this time.” P.W., in turn, moved to dismiss the petition based on DPHHS’ failure to meet its burden of proof. DPHHS argued that it had not rested its case and that given the nature of the hearing, the guardian ad litem should be permitted to testify before any decision was made. Furthermore, DPHHS argued that the guardian’s testimony could be relied upon to satisfy its burden of proof. ¶9 The District Court denied P.W.’s motion to dismiss and the guardian was allowed to testify. The guardian testified that she had not had any contact with the children directly, nor had she spoken directly with either of the children’s primary therapists. However, based on her contact with P.W., P.W.’s therapist, R.B. by telephone, “the guardian program,” the prior guardian, and the social worker, she recommended that DPHHS be awarded long-term custody of both children. ¶10 P.W. raised a hearsay objection because of the guardian’s lack of direct contact with any professional who could prove the children’s mental or emotional handicaps. The Court overruled the objection, stating: Section 41-3-303(3) says that “Information contained in a report filed by the guardian ad litem or testimony regarding a report filed by the guardian ad litem is not hearsay when it is used to form the basis of the guardian ad litem’s opinion as to the best interests of the child.” ¶11 In response, P.W. challenged the constitutionality of § 41-3-303(3), MCA (1999), as a violation of his right to confront the expert witnesses on whom the guardian had based her opinions. Given the significance of the legal issue, the District Court admitted that the constitutional issue would have to be resolved before a final decision could be made. In the interim, the District Court heard the guardian’s testimony subject to P.W.’s objection, and reserved its ruling on the objection pending further briefing. The guardian’s attorney also called P.W. as a witness. He testified that although his children continued to have severe mental and emotional problems, he would be able to obtain the professional help required to assist his children. ¶12 During P.W.’s case-in-chief, P.W.’s therapist testified that P.W. was capable of caring for M.W. in a family setting pursuant to a reunification plan which she and P.W. had developed at the social worker’s suggestion. At the conclusion of testimony, P.W. renewed his motion to dismiss. In ruling on the motion, the District Court considered the ramifications of its decision. The following exchange occurred: P.W.’s Counsel: If you recall a year and a half ago when we first came, he [P.W.] was willing to submit - he’s always wanted their [DPHHS] help and their services. He realizes this isn’t a normal family where the kids go off to school, come home, eat dinner type of situation. But as the Court observed and he strongly feels, they have not gotten better in a year and a half of total loss of his control so he wants at least some of the control back. Court: I understand that but it’s either the Department or no. P.W.’s Counsel: Based on the fact they didn’t present the necessary testimony, yes. Court: No, no, let’s set that aside. If the Court dismisses the petition, the Department [DPHHS] is out of it; they’re out of it. P.W.’s Counsel: They [P.W.] can provide services without the Court intervention. Court: Well, but there’s nothing that says that they would. P.W.’s Counsel: True. Court: They’re [DPHHS] out of it for all practical purposes, legal purposes; they’re out of it. And I’m not hearing him say that he wants them out of it. P.W.’s Counsel: Your Honor, he wouldn’t be saying that to tell you the truth. The District Court denied P.W.’s renewed motion to dismiss. The District Court granted P.W. visitation rights to M.W. in the form of one telephone call per week and one in-person visit every month. ¶13 The parties briefed the constitutional issue and on January 26, 2001, the District Court issued a Memorandum and Order sustaining P.W.’s objection to the use of the hearsay testimony by the guardian. It held that: [T]he language of § 41-3-303(3), which allows the hearsay presentation by the guardian ad litem of what would otherwise be considered expert testimony, violates Article II, Section 24, of the Montana Constitution as that section is applied to the objectionable evidence before the Court, in that it is a fundamentally unfair violation of a parent’s right to confrontation. Based on that determination, the District Court ordered: Considering that this issue is an issue of first impression and with the intent to determi ne the best interests of the youth on the merits of this matter, the Department shall be given another opportunity to present its case to the Court. ¶14 A second hearing was held on February 28,2001. At that hearing, both P.W. and R.B. agreed that DPHHS should have long-term custody of L.W. With respect to M.W., P.W. objected to giving DPHHS another opportunity to present its case when it had failed to sustain its burden of proof at the December 4, 2000, hearing. The District Court denied P.W.’s objection. DPHHS then called M.W.’s former and present therapists to testify, as well as the group home manager of the facility where M.W. was then residing. On March 28,2001, the District Court entered its Findings of Fact, Conclusions of Law and Order, and granted long-term custody of M.W. and L.W. to DPHHS. The District Court concluded that M.W. “cannot function in a family setting residing with his father.” The District Court allowed P.W. continued visitation. ¶15 On May 24, 2001, P.W. appealed the District Court’s Findings of Fact, Conclusions of Law and Order of March 28, 2001, and that portion of the Memorandum and Order entered January 26, 2001, where the District Court allowed DPHHS “another opportunity to present its case.” STANDARD OF REVIEW ¶16 We review a district court’s conclusions of law to determine whether they are correct. Matter of D.H. (1994), 264 Mont. 521, 525, 872 P.2d 803, 805. This Court has recognized that “a natural parent’s right to care and custody of a child is a fundamental liberty interest, which must be protected by fundamentally fair procedures.” Matter of R.B. (1985), 217 Mont. 99, 103, 703 P.2d 846, 848. ¶17 Furthermore, when determining custody, the district court is “bound to give primary consideration to the physical, mental, and emotional conditions and needs of the children.” Matter of C.M. (1997), 281 Mont. 183, 187, 932 P.2d 1063, 1066. The best interests of the child are paramount in child custody cases and must take precedence over parental rights. C.M., 281 Mont. at 187, 932 P.2d at 1066; Matter of B.N. (1990), 245 Mont. 511, 517-18, 802 P.2d 1244, 1248. DISCUSSION ¶18 The sole issue on appeal is whether P.W. was denied fundamentally fair procedures in the proceedings by which the District Court awarded long-term custody of M.W. to DPHHS. ¶19 To begin, we should note that although P.W. originally challenged DPHHS’ petition for long-term custody with respect to both M.W. and L.W., we interpret this appeal as related only to M.W. At the February 28, 2001, hearing, P.W. conceded that DPHHS should have long-term custody of L.W. Furthermore, at the conclusion of P.W.’s brief filed for this appeal, P.W. requests this Court to “reverse the district court’s grant of long term custody of M.W. to the Department of Public Health and Human Services.” Accordingly, we will limit our review to M.W. ¶20 P.W. alleges that he was denied fundamentally fair procedures in five areas. Specifically, P.W. contends that: (1) the District Court failed to hold a permanency plan hearing within the statutory deadline; (2) DPHHS failed to submit a statutorily-required pre-hearing report to the District Court; (3) DPHHS failed to develop a plan with any elements of permanency; (4) DPHHS tried to terminate P.W.’s parental rights without satisfying the requisite statutory criteria and burden of proof; and (5) the District Court erroneously granted DPHHS a second chance to prove its case. We will address each claim in turn. ¶21 P.W. first contends that the District Court failed to hold a permanency plan hearing within the statutory deadline. Section 41-3-412(1), MCA (1999), provided in pertinent part: A permanency plan hearing must be held by the court no later than 12 months after the initial court finding that the child has been subjected to abuse or neglect or 12 months after the child’s first 60 days of removal from the home, whichever comes first, unless the proceeding has been dismissed, the child was not removed from the home, or the child has been returned to the child’s parent or guardian. On July 19,1999, M.W. was removed from the home of P.W. On July 23,1999, the District Court found probable cause to believe that M.W. had been abused or neglected or was in danger of being abused or neglected. Therefore, by law, the permanency plan hearing should have occurred prior to July 23, 2000. On September 1, 2000, DPHHS petitioned the District Court to schedule a permanency plan hearing, and award long-term custody. The District Court set a hearing date for November 14,2000, and subsequently rescheduled that hearing for December 4, 2000. Therefore, it is undisputed that the permanency plan hearing in this case occurred after the statutory deadline. ¶22 P.W. now contends that the District Court’s failure to hold a timely permanency plan hearing deprived him of a fundamentally fair procedure. However, before making that argument to this Court, it was necessary that he make the same argument to the District Court as well as advise the District Court of the appropriate remedy. P.W. failed to do so. ¶23 Prior to the hearing, in his Proposed Findings of Fact, Conclusions of Law, and Order filed on December 1, 2000, P.W. stated in a proposed conclusion of law: Section 41-3-412(1), MCA, requires the Court to conduct a permanency plan hearing no later than 12 months after its initial finding that a child is abused or neglected, or 14 months after a child has been removed, whichever comes first. Neither of these deadlines was met in this case. However, P.W. did not suggest to the District Court that it was without authority to proceed for that reason and did not request dismissal of the petition. Objections primarily serve two purposes: (1) to give the district court an opportunity to correct the problem and (2) to preserve the issue for appeal. State v. Bird, 2001 MT 2, ¶ 54, 308 Mont. 75, ¶ 54, 43 P.3d 266, ¶ 54. P.W.’s proposed conclusion merely brought the problem to the District Court’s attention. It made no suggestion how to correct the problem. Therefore, the proposed conclusion of law did not, by itself, constitute a proper objection. ¶24 P.W. next contends that he was denied a fundamentally fair procedure when DPHHS failed to submit the statutorily-required prehearing report at least three days prior to the permanency plan hearing. Section 41-3-412(2), MCA (1999), provided: (2) At least 3 days prior to the permanency plan hearing, the department and the guardian ad litem shall each submit a report regarding the child to the court for review. The report must contain the: (a) efforts and progress demonstrated by the child’s parent or guardian to complete a treatment plan; (b) extent to which the parent or guardian cooperated and used the services provided; (c) status of the child, including the child’s mental, physical, and psychological health; and (d) plan for permanency for the child, including specific times for achieving the plan. ¶25 It is undisputed that DPHHS failed to submit the required prehearing report. However, like the District Court’s failure to hold a timely permanency plan hearing, P.W. failed to properly object to DPHHS’ course of conduct either at the hearing or in a prehearing motion. At the hearing, the District Court questioned DPHHS about the absence of the report: Court: You’re petitioning the Court to develop a permanency plan, however, there was no permanency plan and now I’m talking about this case. "Where is the report regarding the child for the Court to review with respect to a permanency plan? Where is the report. The statute requires the Department to do that. DPHHS: Yes, it does. Court: Where is that? DPHHS: One has not been done. Court: It should have been done at least three days before today. DPHHS: Yes. That again is something that I should have reminded them to do because I read the same statute. Despite the fact that the Court raised the issue and DPHHS acknowledged its error, P.W. failed to state an objection at that time and demonstrate or even allege resulting prejudice. ¶26 As with the timeliness of the hearing, P.W. did raise the issue as a proposed conclusion of law in his Proposed Findings of Fact, Conclusions of Law, and Order, stating: Section 41-3-412(2), MCA, requires both the Department and the guardian ad litem to each submit a report to the Court at least 3 days before the hearing. The Department and guardian both failed to do so. However, once again, no specific relief was requested and, as before, we conclude that the proposed conclusion was an insufficient objection by which to preserve this issue for appeal. ¶27 The third alleged denial of a fundamentally fair procedure was DPHHS’ failure to develop a plan with any elements of permanency that would enable M.W. to move toward a settled placement. P.W. complains of the frequency with which M.W. was transferred between treatment facilities and the inability of DPHHS to “stick to a plan of action.” DPHHS, on the other hand, contends that M.W.’s movement between treatment facilities was first and foremost in response to his best interests and to treat his severe emotional and behavioral needs. In addition, DPHHS notes that it is sometimes difficult to place children due to waiting lists that exist at various treatment facilities. ¶28 We conclude there was substantial evidence that M.W. has reasonably progressed toward a settled placement. M.W. was initially placed at Billings Deaconess Clinic. On August 16, 1999, he was admitted into Children’s Comprehensive Service (CCS) in Butte, Montana. Dr. Jeffrey Watson, a licensed professional counselor at CCS, testified that M.W. had improved during his stay at CCS and was now less aggressive. On December 22, 2000, M.W. was moved to Skyview Group Home in Missoula, Montana. Bret Gilleo, M.W.’s Skyview therapist, testified of M.W.’s progress, stating, “[h]is behaviors are not as severe as they were when he first came in and he’s only been there a little over two months and staff have been able to redirect him a little better. They’re finding some of the cause for [M.W.’s] problems and some of the things that work well with him to help him redirect.” When asked to give an estimate as to how much longer M.W. would need specialized care, Gilleo estimated that it would take from a year to a year and a half at a minimum. Finally, the Citizen’s Review Board, a citizen board of the Eighteenth Judicial District, found that M.W.’s placement at Skyview was the “safest, most appropriate and least restrictive” placement and that “progress has been made toward achieving permanency.” Given the substantial evidence in the record and our recognition that it often takes multiple facilities and a bit of trial-and-error to find the appropriate treatment facility, we agree that M.W. has made reasonable progress toward a settled placement. ¶29 P.W. next contends that because DPHHS repeatedly disallowed contact between P.W. and M.W., it attempted to terminate P.W.’s parental rights without adequate grounds and without meeting the necessary burden of proof. From June until September 2000, DPHHS worked toward reunification of M.W. and P.W., and urged liberal visitation. P.W. and his therapist, with the social worker’s approval and input, developed a plan for M.W.’s return home. However, after DPHHS filed the petition for long-term custody on September 1,2000, DPHHS refused to permit contact between P.W. and M.W., based on the recommendations of M.W.’s CCS treatment team which observed marked progress in M.W.’s therapy when he had no contact with P.W. and regression following contact. ¶30 Whether there was any merit to DPHHS’ actions with respect to terminating visitation following September 1, 2000, however, is moot based on the District Court’s reinstatement of visitation at the December 4, 2000, hearing. Where this Court can no longer grant effective relief, the issue is moot. Shamrock Motors, Inc. v. Ford Motor Co., 1999 MT 21, ¶ 19, 293 Mont. 188, ¶ 19, 974 P.2d 1150, ¶ 19. Accordingly, we move to the next issue. ¶31 P.W. claims that he was denied a fundamentally fair procedure when the District Court allowed DPHHS a second opportunity at the February 28,2001, hearing to prove that M.W. had severe mental and emotional handicaps which required long-term custody with DPHHS. P.W. contends that DPHHS sought to repeatedly litigate the issue, “until it could get its act together sufficiently to support its allegations.” Because DPHHS failed to present any evidence that supported long-term custody at the first hearing and failed to meet its burden, P.W. contends that the petition should have been dismissed. ¶32 We disagree. At the December 4, 2000, hearing, P.W. objected to the constitutionality of § 41-3-303(3), MCA, based on its violation of his right to confront certain experts whose statements were influential in forming the basis for the guardian’s recommendations regarding the children. The District Court reserved ruling on P.W.’s objection until after the parties briefed the issue, but allowed the guardian to testify in the interim. Subsequently, the District Court sustained P.W.’s objection, and held that the guardian’s report and testimony violated P.W.’s right to confrontation. The District Court then held: Considering that this is an issue of first impression and with the intent to determine the best interests of the youths on the merits of this matter, the Department shall be given another opportunity to present its case to the Court. A second hearing was then set for February 28, 2001. ¶33 At the February 28, 2001, hearing, P.W. was provided the opportunity to confront and cross-examine M.W.’s therapists. We agree with the District Court that a dismissal of the petition after the December 4, 2000, hearing, and after the District Court sustained P.W.’s objection, would have required that the Court overlook the best interests of the child. While fundamentally fair procedures are guaranteed, a district court has a corresponding duty to consider the best interests of the child. Substantial evidénce in the record existed to show that M.W. continued to suffer both emotionally and mentally. P.W. himself admitted that he alone was hot capable of dealing with his children’s needs. Furthermore, aside from the fact that substantive evidence was offered directly which had previously been offered indirectly but then excluded, prejudice to P.W. has not been demonstrated. Since it was P.W. who objected to the form of the evidence as first offered and since it was originally offered in a form authorized by statute, we conclude that M.W.’s best interests were paramount. ¶34 For the foregoing reasons, we affirm the judgment of the District Court. CHIEF JUSTICE GRAY, JUSTICES NELSON, REGNIER and LEAPHART concur. However, P.W. did not file a motion to dismiss based on DPHHS’ failure to timely file the petition for long-term custody. In Appellant’s brief, P.W. concedes, “P.W. did not raise the Department’s untimeliness in filing the petition as grounds to dismiss the proceeding in the court below, and is not now asking this Court to do so on that basis.”
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Michael S. Smartt (Smartt) appeals the Order of the First Judicial District Court modifying a writ of prohibition to allow the Judicial Standards Commission to cure ministerial defects before commencing formal proceedings regarding alleged violations of the Canons of Judicial Ethics. We affirm. ¶2 We consolidate the issues raised by Smartt on appeal as follows: ¶3 1. Did the District Court err by modifying and then dismissing its writ of prohibition? ¶4 2. Did the District Court err by granting summary judgment in favor of the Judicial Standards Commission? FACTUAL AND PROCEDURAL BACKGROUND ¶5 The Judicial Standards Commission (the Commission) received a written but unverified complaint against Justice of the Peace Smartt on October 23, 2000. The complaint alleging judicial misconduct was submitted by Samuel L. Harris (Harris), another Cascade County Justice Court judge. The Commission sent a copy of the complaint to Smartt the next day and received Smartt’s response in mid-November 2000. The Honorable John Warner (Warner), chairman of the Commission, was directed to pursue an informal resolution of the Harris complaint, pursuant to Judicial Standards Commission Rule 10. Warner learned that Smartt was also the subject of a Montana Department of Justice investigation. On November 29, 2000, Warner obtained an order from the First Judicial District Court directing the Department’s Criminal Investigation Bureau (CIB) to release its report on Smartt to the Commission. The CIB investigation had been conducted at the request of the Cascade County Sheriff and recounted statements made by Troy Nelson Dye (Dye) before a Richland County Justice of the Peace, alleging that Smartt had broken into Dye’s home in Sidney, Montana, and sexually assaulted him. At the completion of the CIB investigation, the Richland County Attorney declined to prosecute, and Dye did not file a complaint against Smartt with the Commission. After Warner shared the findings of the CIB report with the Commissioners, the Commission decided to expand its investigation of Smartt’s judicial misconduct to include the Dye allegations. ¶6 On December 30, 2000, Warner met with Smartt and his attorneys to discuss informal disposition and informed Smartt that he could avoid further Commission proceedings by voluntarily resigning from his position as Justice of the Peace. After the meeting, Warner sent Smartt transcripts of interviews with Dye from the CIB file and Smartt submitted a response to Dye’s allegations. The Commission then hired attorney Gregory Gould (Gould) to file a formal complaint against Smartt with the Montana Supreme Court. Smartt then notified Gould and the Cascade County Commissioners that he intended to resign from his position as Justice of the Peace effective July 1,2001. On June 28, 2001, Smartt withdrew his resignation. On July 3, 2001, Gould filed the Commission’s formal complaint with the Clerk of the Supreme Court. ¶7 Smartt petitioned the First Judicial District Court for a writ of prohibition, which was issued on July 20, 2001. The writ barred the Commission from further proceedings against Smartt based on an unverified complaint until further order of the court. ¶8 The Commission moved to vacate the writ of prohibition and for summary judgment on various procedural and constitutional issues raised in the affidavit accompanying Smartt’s petition. Following oral argument, the court entered an Order on August 15, 2001, that modified the writ, awarded attorney fees to Smartt and reserved ruling on the motion for summary judgment. The Order allowed the Commission to proceed on the basis of verified complaints alleging matters within the jurisdiction of the Commission. On October 25, 2001, the court granted the Commission’s motion for summary judgment and dismissed Smartt’s petition. STANDARD OF REVIEW ¶9 Our standard of review in appeals from summary judgment rulings is de novo. Andrews v. Plum Creek Mfg., LP., 2001 MT 94, ¶ 5, 305 Mont. 194, ¶ 5, 27 P.3d 426, ¶ 5. When we review a district court’s grant of summary judgment, we apply the same evaluation, based on Rule 56, M.R.Civ.P., as the district court. Andrews, ¶ 5 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903). In Bruner, we set forth our inquiry: The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. Bruner, 272 Mont. at 264-65, 900 P.2d at 903. ¶10 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 of law are correct as a matter of law. State v. Anderson, 2001 MT 188, ¶ 19, 306 Mont. 246, ¶ 19, 32 P.3d 750, ¶ 19. DISCUSSION ¶11 The Judicial Standards Commission is constitutionally mandated to investigate complaints, subpoena witnesses and documents, and make recommendations to the Montana Supreme Court concerning the discipline of members of the judiciary. Article VII, Section 11 of the Montana Constitution reads: (1) The legislature shall create a judicial standards commission consisting of five persons and provide for the appointment thereto of two district judges, one attorney, and two citizens who are neither judges nor attorneys. (2) The commission shall investigate complaints, and make rules implementing this section. It may subpoena witnesses and documents. (3) Upon recommendation of the commission, the supreme court may: (a) Retire any justice or judge for disability that seriously interferes with the performance of his duties and is or may become permanent; or (b) Censure, suspend, or remove any justice or judge for willful misconduct in office, willful and persistent failure to perform his duties, violation of canons of judicial ethics adopted by the supreme court of the state of Montana, or habitual intemperance. (4) The proceedings of the commission are confidential except as provided by statute. ¶12 The Legislature outlined the Commission’s procedures for initiating an investigation and conducting formal proceedings. A complaint from any citizen may cause the Commission to initiate an investigation. Section 3-l-1106(l)(a), MCA. The Commissionis directed to notify the judicial officer of the citizen’s complaint and of the initiation of an investigation. Section 3-l-1106(l)(b), MCA. If the Commission’s investigation indicates that additional proceedings may be justified, “the Commission shall require the citizen who filed the original written complaint to sign a verified written complaint before conducting such additional proceedings.” Section 3-l-1106(l)(a), MCA. Notice must again be given if a verified written complaint is filed. Section 3-l-1106(l)(b), MCA. This notice must be signed by the Commission and include the charges made, the grounds for the charges, and a statement that the judicial officer may file an answer. Section 3-1-1106(1)0»), MCA. ¶13 Issue 1. Did the District Court err by modifying and then dismissing its writ of prohibition? ¶14 The writ of prohibition Smartt obtained from the First Judicial District Court was grounded, in part, on allegations that the Commission had committed errors that violated Smartt’s rights to due process and confidentiality. The alleged errors included the filing a of formal complaint against Smartt with the Montana Supreme Court based upon an unverified complaint by Harris that was not presented on the proper standardized form. The writ directed the Commission to “desist and refrain from any further action and proceedings in the matter relating to the Hon. Michael S. Smartt.” ¶15 Smartt premises his appellate argument on an assumption that the District Court was correct as a matter of law to issue the writ. The Commission concedes that the court was correct to enjoin the Commission from instituting formal proceedings before it had obtained a verified complaint, but erred in using the writ of prohibition, which enjoined the commission from taking any action, including obtaining the required verifications. ¶16 The function of a writ of prohibition is to halt proceedings that are “without or in excess of the jurisdiction” of the entity exercising judicial functions. Section 27-27-101, MCA. The statutory definition reads: The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person exercising judicial functions when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Section 27-27-101, MCA. We have defined the term “jurisdiction” to mean “the power to hear and determine a particular case.” State ex rel. Yuhas v. Board of Medical Examiners (1959), 135 Mont. 381, 383, 339 P.2d 981, 982. This Court examined the application of the writ of prohibition in State ex rel. Lee v. Montana Livestock Sanitary Bd. (1959), 135 Mont. 202, 339 P.2d 487, where we stated: [T]he writ of prohibition would not restrain a ministerial, executive or administrative function, no matter how illegal the act thereunder may be so long as the tribunal sought to be restrained has jurisdiction of the subject matter in controversy. A mistaken exercise of such tribunal's acknowledged powers will not justify the issuance of the writ. The writ of prohibition will not be issued as of course, nor because it may be the most convenient remedy. Lee, 135 Mont. at 209, 339 P.2d at 491 (citing State ex rel. White v. Board of State Land Com’rs (Wash. 1901), 63 P. 532, 533). ¶17 Smartt relies on State ex rel. Shea v. Judicial Standards Commission (1982), 198 Mont. 15, 643 P.2d 210, where this Court issued a writ of prohibition to enjoin the Commission from acting in excess of its authority by investigating charges leveled in an unverified complaint. In Shea, the Commission was “arrested” by writ of prohibition from pursuing disciplinary proceedings against a justice of this Court for unpaid parking tickets amassed by his wife and the use of “intemperate” language in a dissenting opinion. Because the charges against Justice Shea did not amount to constitutionally proscribed “misconduct in office,” this Court concluded that the Commission was operating outside of its jurisdiction. This Court did not issue the writ of prohibition solely because the Commission proceeded against Justice Shea without the statutorily required verified complaint, but, rather, primarily because the Commission exceeded its jurisdiction in investigating a charge that did not amount to “misconduct in office.” Even if the complaint in Shea had been verified, the Commission still lacked subject matter jurisdiction over the substance of the complaint. In the present case, on the other hand, when the procedural requirement of a verified complaint was satisfied, there was no question but that the Commission had jurisdiction over the subject matter of the complaint. ¶18 Following the Shea decision, the 1983 Legislature amended § 3-3-1106, MCA, and clarified the procedural requirement that the Commission obtain a verified, written complaint when further proceedings against a judicial officer appear to be justified after the Commission conducts an initial investigation. Sec. 1, Ch. 334, L. 1983. Section 3-3-1106, MCA, reads, in pertinent part: (1) (a) The commission, upon the filing of a written complaint by any citizen of the state, may initiate an investigation of any judicial officer in the state to determine if there are grounds for conducting additional proceedings before the commission. If the commission’s investigation indicates that additional proceedings before the commission may be justified, the commission shall require the citizen who filed the original written complaint to sign a verified written complaint before conducting such additional proceedings. (b) The commission shall give the judicial officer written notice of the citizen’s complaint and of the initiation of an investigation. Notice must also be given if a verified written complaint is filed and must include the charges made, the grounds for the charges, and a statement that the judicial officer may file an answer. The notice must be signed by the commission. ¶19 The record before us indicates that the District Court issued the writ of prohibition solely upon the basis of Smartt’s allegations of procedural errors committed by the Commission. While Smartt concedes that the investigation of complaints against judicial officers is within the jurisdiction of the Commission, he claims that the Commission “abused its jurisdiction” by committing the procedural errors enumerated in the affidavit attached to his petition. Once the ex parte writ was issued, Smartt contends the Commission lost subject matter jurisdiction and had no authority to undertake any further action in the matter. Smartt, however, cites no authority for the proposition that procedural errors can be a basis for loss of jurisdiction. ¶20 Unlike the Commission’s investigation of charges against Justice Shea that bore no relation to his conduct in office, the Harris complaint alleges that Smartt created a hostile work environment by exposing county employees to sexually explicit material and used county equipment and services to view pornography on the Internet. Although the Commission acknowledges error in failing to obtain a verified complaint before initiating formal proceedings against Smartt, the Commission’s original jurisdiction to investigate the Harris complaint is not disputed. ¶21 On August 15, 2001, the District Court ordered the writ to continue in force only until verified complaints were received from complainants. We agree with the court’s observation that Article VII, Section 11 of the Montana Constitution grants the Commission jurisdiction to investigate misconduct on behalf of the judiciary, and a procedural error such as the failure to verify a complaint should not be allowed to subvert this constitutional mandate. Harris had verified his complaint by the time the court held its hearing on the writ of prohibition. We conclude that the court did not err when it modified the writ and allowed the Commission to proceed with its investigation on Harris’ verified complaint. ¶22 Smartt next claims the Commission overstepped its authority by obtaining a copy of the CIB investigative report and further investigating allegations leveled by Troy Nelson Dye when Dye had not filed any sort of complaint with the Commission. The formal complaint prepared by the Commission alleged that Smartt used his judicial position to solicit or encourage sexual favors from Dye; Smartt unlawfully entered Dye’s residence in Sidney, Montana; and Smartt sexually assaulted Dye. ¶23 By constitutional and statutory grant of rule-making authority, the Commission promulgated the Rules of the Judicial Standards Commission. See Art. VII, Sec. 11(2), Mont. Const.; § 3-1-1105(2), MCA. The Commission’s Rule 10(b) states: A complaint shall not be a prerequisite to action by the Commission. The Commission may act on its own motion in those cases where the Commission considers it appropriate. Smartt urges us to declare this rule an unconstitutional extension of the Commission’s jurisdiction on the grounds that Article VII, Section 11(2) of the Montana Constitution states only that “[t]he commission shall investigate complaints.” ¶24 First, in addition to investigating complaints, the Constitution grants the Commission express authority to “subpoena witnesses and documents.” Art. VII, Sec. 11, Mont. Const. We note that the Commission was in the process of investigating the complaint submitted by Harris when Chairman Warner learned that the Montana Department of Justice had undertaken an investigation of alleged wrong-doing by Smartt. ¶25 To determine whether the Commission’s constitutional mandate to “investigate complaints” grants jurisdiction to investigate alleged judicial misconduct in the absence of a written complaint, as contemplated by Rule 10(b), we note that the term “complaint” has both common and legal meanings. A complaint can be “something that is the cause or subject of protest or outcry” as well as “a formal allegation against a party,” according to Webster’s New Collegiate Dictionary (1979). In the legal context, a complaint is the “initial pleading that starts a civil action.” Black’s Law Dictionary (7th Edition, 1999). While a complaint in this instance is lodged with the Commission and not a court of law, the use of the term in Article VII, Section 11 of the Montana Constitution does not dictate any particular degree of legal formality. ¶26 The Legislature clarified that “a written complaint by any citizen of the state” may initiate an investigation of judicial misconduct by the Commission. Section 3-3-1106(l)(a), MCA. Only when the initial investigation indicates that additional proceedings before the Commission are warranted must the complaining citizen sign a verified complaint. Section 3-3-1106(l)(a), MCA. ¶27 The transcripts of the 1972 Constitutional Convention offer some guidance on the process required to bring matters of judicial wrongdoing before the Commission, as envisioned by the Convention delegates. In discussing the public policy concerns supporting the mandate of the Judicial Standards Commission, one delegate observed, [W]e’ve never had a commission of this type to which a practicing lawyer could go. The only way that you can get rid of a judge was through impeachment or wait until the next election and try to get somebody to run against him. This is a procedure where a letter can be written or a charge filed with this commission and ask them to look into it, investigate it, and, if the facts were found to be true then to take such action as [they] might deem appropriate. Comments of Delegate Aronow, Constitutional Convention Transcript at 1126 (February 29,1972). Delegate Aronow further explained that the intent of Article VII, Section 11 was to create “a committee of five, to investigate and look into any complaints that are made or any information that comes to the attention of the commission that a judge, either because of old age, other disability, is not attending to his duties properly and provide for his retirement or removal from office.” Comments of Delegate Aronow, Constitutional Convention Transcript at 1123 (February 29, 1972). ¶28 Delegate Berg noted that the Commission offered judicial officers accused of wrong-doing a forum where they could defend themselves: We are particularly interested in seeing to it that District judges and Supreme Court justices have some protection, not only of themselves in the case of senility or alcoholism, but frequently charges are made against judges which, of course, they are almost powerless to answer. If there is a commission before whom those charges can be filed, the judge has an opportunity to defend himself. Comments of Delegate Berg, Constitutional Convention Transcript at 1125 (February 29, 1972). ¶29 Taken together, these excerpts depict a Commission conceived to investigate the truth of “a charge filed” or “a letter written” or “any information that comes to [its] attention” in order to make recommendations to the Montana Supreme Court regarding the discipline or removal of judicial officers. While the Commission’s own Rule 10(a) directs that all complaints to the Commission must be in writing and verified by the complainant, Rule 10(b) states that the filing of a verified complaint is not a prerequisite to the Commission initiating an investigation of alleged judicial misconduct based upon information otherwise received. ¶30 The Constitution authorizes the Commission to investigate judicial wrong-doing. We see nothing in Rule 10(b) that prevents the Commission from carrying out its constitutional duty to investigate complaints from Montana citizens, and nothing in the Montana Constitution that bars the Commission from acting on its own motion to investigate willful misconduct in office, persistent failure to perform judicial duties and violations of the canons of judicial ethics. We conclude that the Commission did not exceed its jurisdiction in obtaining a copy of the CIB file on Smartt by court order and undertaking its own investigation of the Dye allegations. ¶31 Smartt also contends that the Commission’s initial notice to him of the Harris complaint was defective because it was signed by the Commission’s executive secretary and not the Commission members themselves. Section 3-l-1106(l)(b), MCA, directs the Commission to sign the notice to a judicial officer that a verified complaint has been received. Since the letter signed by the executive secretary gave Smartt notice of the receipt of an unverified complaint, we conclude this initial notice did not violate the statutory requirements. ¶32 At the direction of the Commission to seek informal disposition of the complaints against Smartt, Chairman Warner met with Smartt and his attorneys on December 30, 2000. Three days before the meeting, Warner advised Smartt by letter that the Commission’s investigation had expanded to include the Dye allegations. Smartt claims he was denied an adequate opportunity to prepare for the meeting because the Commission failed to provide him with a copy of the CIB report. Smartt also contends that Warner lacked authorization under the Commission’s rules to seek informal disposition of the Dye matter. Finally, Smartt claims that Warner did not explicitly recommend at the December 30 meeting that Smartt resign from his position as Justice of the Peace, but was on a “fishing expedition” regarding the Dye allegations. ¶33 On November 21,2000, the Commission directed Warner to meet with Smartt in accordance with the Commission’s Rule 10(g), which states: After receipt of a complaint or of information indicating that a judge may have been guilty of conduct which might warrant discipline, or that a judge may be disabled, the Commission, before voting to hold a formal hearing, may delegate to one or more of its members the authority and responsibility to personally and confidentially confer with the judge subject to the inquiry, and to make informal recommendations to the judge concerning the subject matter of the inquiry and a satisfactory disposition thereof. If the judge agrees to the Commission’s suggested disposition, the matter may be disposed of on the basis of the agreement reached. If such agreed disposition is made on the basis that it be made public, the Commission shall file a report of such disposition in the office of the Clerk of the Supreme Court and it shall become a matter of public record. Smartt is correct that the Commission’s formal delegation of authority to Warner to seek informal disposition of the complaint against Smartt occurred before the Commission learned of the Dye allegations. Prior to the December 30 meeting, Warner informed the Commission of the contents of the CIB file, and proceeded in accord with the Commission’s directive. Because the purpose of the meeting was to attempt to resolve serious complaints against a judicial officer in a confidential manner before initiating formal, public proceedings, Smartt’s claim of insufficient notice lacks merit. The meeting was not a criminal proceeding and the Commission had not established a time limit for an informal resolution. Immediately following the meeting, Warner mailed a copy of the CIB file to Smartt. Smartt formally responded to the Dye allegations on January 28, 2001, and formal proceedings were initiated thereafter. We conclude that Warner acted with the Commission’s authorization in pursuing informal disposition of the complaints against Smartt. ¶34 Finally, Smartt objects to the fact that Dye’s formal, verified complaint was not submitted on the standardized form set forth in the Commission’s rules, was drafted by Gould, the attorney hired by the Commission to prepare the formal complaint against Smartt, and did not identify which specific sections of the Canons of Judicial Ethics Smartt allegedly violated. As stated previously, the form of a complaint from a Montana citizen alleging judicial misconduct is not critical to the Commission’s fulfilling its constitutional mandate. And, Smartt has identified no policy, statute or rule of the Commission that was abrogated by Gould in providing assistance in drafting Dye’s complaint. ¶35 By Order on October 25, 2001, the District Court dismissed Smartt’s petition for a writ of prohibition. We reiterate that Article VII, Section 11 of the Montana Constitution requires that the Commission investigate complaints and make recommendations to this Court concerning allegations made against any justice or judge for “willful misconduct in office, willful and persistent failure to perform his duties, violation of canons of judicial ethics ... or habitual intemperance.” We hold that the Commission acted within its jurisdiction throughout its investigation of Smartt. The District Court was correct as a matter of law to dismiss the writ of prohibition. ¶36 Issue 2. Did the District Court err by granting summary judgment in favor of the Commission? ¶37 The District Court granted the Commission’s motion for summary judgment on four issues raised by Smartt in his affidavit supporting his petition for the writ of prohibition. On appeal, Smartt does not dispute the factual basis for the court’s judgment. Instead, he contends that he raised only one issue in his petition, which was whether the Commission should be barred from further action due to lack of subject matter. jurisdiction in the absence of verified complaints, and maintains that the Commission’s “motion for summary judgment was a cleverly contrived and skillfully executed attempt to raise nonexisting issues.” ¶38 At a loss to conceive how the District Court could commit reversible error by dismissing ancillary issues that both parties agree are immaterial or irrelevant to the case, we affirm the court’s Order. CONCLUSION ¶39 A writ of prohibition is an extraordinary remedy available to enjoin a judicial entity from the inappropriate exercise of jurisdiction when no other plain, speedy and adequate legal remedy exists. The District Court was correct as a matter of law to dismiss the writ because at no time during its investigation did the Commission act without or in excess of its jurisdiction. ¶40 Affirmed. CHIEF JUSTICE GRAY, JUSTICE NELSON, REGNIER, TRIEWEILER and RICE concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶1 Keith W. Longhorn (Longhorn) was charged by information in February 1994with felony sexual assault. A warrant for his arrest was issued, but was not served on Longhorn until six years later. Longhorn filed a motion to dismiss on speedy trial grounds, which the District Court denied. After a jury trial, Longhorn was found guilty of sexual assault. Longhorn then filed a motion for a new trial, wherein he sought to set aside the jury verdict. The District Court denied that motion and sentenced Longhorn to seven years at Montana State Prison, with five years suspended. This appeal followed. We affirm. ¶2 Longhorn raises the following issues on appeal: ¶3 1. Did the District Court err when it denied Longhorn’s motion to dismiss for violation of his right to a speedy trial? ¶4 2. Did the District Court err when it denied Longhorn’s motion for a new trial? FACTS AND PROCEDURAL BACKGROUND ¶5 In August 1992, Longhorn and his girlfriend Delaney stayed at the home of T.G. in Havre, Montana. At that time, T.G. was seven years old. Longhorn came to Montana to attend pow-wows, and T.G.’s mother Kathy recalled having a houseful of company at that time because of pow-wows in Fort Belknap and Rocky Boy. The company included Kathy’s sister-in-law Toni and Toni’s husband Chabon, her brother John and his wife Teresa, and her mother-in-law, Dee. Toni, Chabon, Longhorn and Delaney all planned to compete in pow-wow dancing. ¶6 The atmosphere at the home at this time was festive. There was constant activity and the adults frequently stayed up late. According to T.G., she had trouble sleeping on one of these nights, and she laid in the hallway in her pajamas with a sleeping bag and a pillow. Longhorn went upstairs to use the bathroom and asked T.G. what was wrong. He told her to go to her bedroom and said he would be there in a minute. ¶7 T.G. returned to her bed. A few minutes later, Longhorn came into her room and laid next to her on the bed. There were no lights on in the bedroom. Longhorn started rubbing T.G.’s stomach, then began rubbing her chest and her vaginal area on top of her pajamas. Longhorn reached inside T.G.’s pajamas and touched her vagina with his fingers. Longhorn ultimately inserted one of his fingers into her vagina. T.G. recalled that one of her siblings, who was asleep in the room, woke up. Longhorn went to that sibling, patted his or her back, and instructed the child to go back to sleep. Longhorn then returned to T.G.’s bed and placed his fingers back on her vaginal area. Longhorn told T.G. this was their “little secret” and nobody else needed to know. ¶8 The next day when T.G. saw Longhorn, he gave her an eerie smile. She ran away and cried. Longhorn later left T.G.’s home with her grandmother. T.G. did not see Longhorn again. ¶9 On January 4, 1994, T.G. confided in her music teacher, Shirlie Hanson (Hanson), that Longhorn had sexually abused her two years earlier. When T.G. told Hanson about the abuse, she was shaking and crying. Hanson testified that T.G. seemed very relieved after her disclosure. After her talk with T.G., Hanson informed the school principal about T.G.’s disclosure. The principal contacted the Havre police. The school counselor, Mark West (West), also offered T.G. support. ¶10 Officer Haberlock, from the Havre Police Department, interviewed T.G. and her parents. T.G. informed Officer Haberlock that the man who assaulted her was staying at the family’s home to attend pow-wow and she described the man. T.G.’s parents were able to identify Longhorn as .the suspect and told Officer Haberlock that Longhorn had only been at the house on one occasion in August 1992. ¶11 After learning Longhorn’s name, Officer Haberlock assembled a photographic lineup for T.G. to review. As soon as he placed the photographs on the table, T.G. selected the photograph of Longhorn and identified him as the perpetrator. ¶12 A warrant for Longhorn’s arrest was issued on February 22,1994. When the Hill County sheriffs office received Longhorn’s arrest warrant, an officer entered the warrant into the National Criminal Information Center (NCIC) and sent a teletype message to the sheriffs office in Cleveland County, Oklahoma, requesting a local officer’s assistance in finding and arresting Longhorn. Cleveland County, Oklahoma, was Longhorn’s last known address. ¶13 Four years later, in March 1998, the Hill County sheriffs office published a request for information of Longhorn’s whereabouts in the Havre Daily News “crime stoppers most wanted” section. The sheriffs office received no information as a result of this effort. In October 1998 and January 1999, the sheriffs office sent messages to the Cleveland County sheriffs office. Also, in January 1999, a deputy ran a criminal history check on Longhorn to determine if he had any recent arrests that would lead the sheriffs office to his whereabouts. ¶14 On February 22, 2000, Deputy Dwyer received a call from the Cleveland County sheriffs office reporting that Longhorn had been arrested on a domestic assault charge and that Longhorn had been served Montana’s warrant. Deputy Dwyer immediately informed the Cleveland County sheriffs office that Montana would extradite Longhorn. ¶15 A jury trial was held on September 25, 2000, and a guilty verdict was returned on the offense of sexual assault, a felony. The District Court sentenced Longhorn to Montana State Prison for a period of seven years, with the last five years suspended. Longhorn appeals. DISCUSSION ¶16 Did the District Court err when it denied Longhorn’s motion to dismiss for violation of his right to a speedy trial? ¶17 Whether a defendant has been denied a speedy trial constitutes a question of constitutional law. We review a district court’s interpretation of the law to determine if it is correct. City of Billings v. Bruce, 1998 MT 186, ¶ 18, 290 Mont. 148, ¶ 18, 965 P.2d 866, ¶ 18. ¶18 The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant’s right to a speedy trial. In reviewing a claim that a defendant has been denied a speedy trial, we consider and balance each of the following four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117, as applied in Bruce, ¶ 19. Since no single factor is decisive, courts must engage in a difficult and sensitive balancing process. Barker, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. As discussed in Brace, our analysis of speedy trial claims features both a “straight balancing test” and a “motive test.” Brace, ¶ 54. As such, the importance of the prejudice factor and the degree of prejudice necessary to establish denial of speedy trial will vary based upon other considerations, such as the length of the delay and the reason for the delay. State v. Keyes, 2000 MT 337, ¶ 17, 303 Mont. 147, ¶ 17, 15 P.3d 443, ¶ 17. The greater the degree of fault by the State in causing the delay, the less delay or prejudice that need be shown. However, if the State is not responsible for delay, greater prejudice, and presumably greater delay, would have to be shown. Bruce, ¶ 53. Length of Delay ¶19 We will first consider the length of delay from the time charges are filed until the defendant’s trial date for the purpose of determining whether there is a basis for conducting a speedy trial analysis. This period of time is calculated without assignment of fault to either party for the various periods of delay. Bruce, ¶ 55. The necessary length of time to trigger further speedy trial analysis is 200 days. Bruce, ¶ 55. ¶20 Here, the Information was filed on February 22, 1994. The trial was held on September 25, 2000. This time period is more than sufficient to trigger further analysis of whether Longhorn was denied his right to a speedy trial. Reason for the Delay ¶21 The second factor requires the court to consider the reasons for the delay. The 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. ¶22 The right of a defendant to a speedy trial commences when he becomes an accused. If the accused is out of state, the State must act diligently and in good faith to acquire jurisdiction. State v. Robbins (1985), 218 Mont. 107, 116, 708 P.2d 227, 233-34. ¶23 If the court determines that the State is responsible for 275 or more days of the total delay, the State has the initial burden of demonstrating that the defendant has not been prejudiced by the delay. Hardaway, ¶ 20. ¶24 The District Court separated the delay in this case into two time periods: the period between the issuance of the warrant and Longhorn’s arrest, and the period between Longhorn’s arrest and the trial. The court concluded that the arrest warrant was issued on February 22,1994, and Longhorn was arrested on February 21, 2000. The court found that the State acted diligently and in good faith in attempting to locate the defendant and did not attribute that time period to the State. For the second time period, the District Court allocated 99 days of delay to Longhorn for resisting extradition. The balance of time, from May 31, 2000, until September 26, 2000, was institutional delay. The court held that since that time did not exceed 275 days, Longhorn had the burden of proving that he had been prejudiced by the delay. ¶25 Only the time period between issuance of the warrant and Longhorn’s arrest is at issue here. Longhorn argues the State breached its duty to make a diligent good faith effort to locate and apprehend him. Specifically, he argues that the court erred when it considered the State’s limited resources; when it concluded that it was unreasonable to expect the Hill County sheriffs office to locate him; and when it concluded that the State “wasn’t taking a leisurely pace in prosecuting the defendant for their own convenience.” Longhorn argues that “[t]he facts, fairness, and the guiding principles revolving around speedy trial analysis preclude blaming a citizen accused for delay when he knew nothing about the charges.” He asserts that the court wrongly attributed the six-year delay to him and therefore, the court incorrectly placed the burden on him to prove that he had been prejudiced by the delay. ¶26 The State argues that the Hill County sheriffs office did all that it was able to do to locate Longhorn. At the time the warrant was issued, the only information available to the sheriffs office was Longhorn’s last known address, date of birth and social security number. The sheriffs office entered the information on the NCIC system and sent several teletype messages requesting assistance from the sheriffs office in the county of Longhorn’s last known address. The State argues that the District Court correctly attributed the pre-arrest time to Longhorn, but that even if this Court disagrees with the District Court’s allocation, Longhorn cannot prevail because he was not prejudiced by the pre-arrest delay. ¶27 Longhorn relies on the United States Supreme Court decision in Doggett v. United States (1992), 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520, in arguing that the State was negligent in its efforts to locate him. In Doggett, there was a delay of eight and a half years between indictment and arrest. Doggett was indicted in 1980 for conspiring to import and distribute cocaine. The Drug Enforcement Administration (DEA) was the principal agent investigating the conspiracy. In 1981, a DEA agent learned that Doggett had been arrested in Panama and he requested that Panama “expel” Doggett to the United States. Although Panamanian authorities promised to comply when their own proceedings were complete, they freed Doggett the following July and let him go to Columbia, where he stayed with an aunt for several months. In September 1982, he passed through customs in New York City and settled in Virginia. He married, earned a college degree, found a steady job as a computer operations manager and lived openly under his own name. In 1988 the Marshal’s Service ran a simple credit check on several thousand people subject to outstanding warrants, and Doggett was found and arrested. Doggett, 505 U.S. at 648-50, 112 S.Ct. at 2689-90, 120 L.Ed.2d at 526-27. The district court concluded that the government was negligent in its attempts to locate the defendant, but that “Doggett had made no affirmative showing that the delay had impaired his ability to mount a successful defense or had otherwise prejudiced him.” Therefore, the court denied Doggett’s motion to dismiss based on denial of a speedy trial. Doggett, 505 U.S. at 650, 112 S.Ct. at 2690, 120 L.Ed.2d at 527. ¶28 The United States Supreme Court reversed the lower court’s decision, holding that “[w]hen the Government’s negligence thus causes delay six times as long as that generally sufficient to trigger judicial review ... and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant’s acquiescence, nor persuasively rebutted, the defendant is entitled to relief.” Doggett, 505 U.S. at 658, 112 S.Ct. at 2694, 120 L.Ed.2d at 532 (citations omitted). The Court noted that it reviews trial court determinations of negligence with considerable deference and “[t]he government gives us nothing to gainsay the findings that have come up to us, and we see nothing fatal to them in the record.” Doggett, 505 U.S. at 652, 112 S.Ct. at 2691, 120 L.Ed.2d at 529. Additionally, the Court stated that, “if the Government had pursued Doggett with reasonable diligence from his indictment to his arrest, his speedy trial claim would fail. Indeed, that conclusion would generally follow as a matter of course however great the delay, so long as Doggett could not show specific prejudice to his defense.” Doggett, 505 U.S. at 656, 112 S.Ct. at 2693, 120 L.Ed.2d at 531. ¶29 The State points out that there are several factual differences between Doggett and this case. We agree. Most significantly, when Doggett returned to the United States and began living in Virginia, he was openly living within the jurisdiction of the DEA. There is nothing in the record to indicate that Longhorn, on the other hand, returned to Montana during the six years between issuance of the warrant and his arrest or was, at any time, within the State’s jurisdiction. ¶30 Additionally, the trial court in Doggett found that the prosecution had been negligent and the Supreme Court concluded that the finding was not clearly erroneous. In this case, the District Court found that the State made a diligent good faith effort to locate Longhorn. The court found that the State “entered the warrant on the NCIC and sent a message to Oklahoma requesting assistance. The State ran a newspaper advertisement pertaining to locating the defendant on March 12, 1998. On October 4, 1998, a second message was sent to Oklahoma requesting assistance in apprehending the defendant. A third message was sent to Oklahoma on January 28, 1999, again requesting assistance in arresting the defendant.” ¶31 We agree with the District Court that the State made a diligent good faith effort to locate Longhorn. Therefore, that time period is allocated to Longhorn, and he has the burden of showing that he was prejudiced by the delay. Longhorn’s Assertion of His Right ¶32 The State concedes that Longhorn made a timely assertion of his right to a speedy trial. Prejudice to Defense ¶33 The fourth factor considers whether Longhorn was prejudiced by the delay. We evaluate prejudice based on the three interests that speedy trials are supposed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimization of the defendant’s anxiety and concern; and (3) avoidance of impairment of the defense. State v. Boese, 2001 MT 175, ¶ 12, 306 Mont. 169, ¶ 12, 30 P.3d 1092, ¶ 12. The importance of this factor and the degree of prejudice necessary to establish denial of speedy trial will vary based upon other considerations, such as the length of delay and the reason for delay. Bruce, ¶ 58. To determine whether Longhorn has sustained his burden of proving prejudice, we address each of the traditional bases for prejudice in turn. Pre-Trial Incarceration ¶34 Longhorn asserts that he was incarcerated for 220 days pre-trial and because he was “incarcerated for a period greater than the time a speedy trial analysis is triggered, [his] incarceration is plainly substantial.” ¶35 The State points out that 99 days of Longhorn’s incarceration was spent in Oklahoma while he resisted extradition to Montana and that the court released Longhorn on his own recognizance in July 2000, provided that he abide by certain conditions. Longhorn could then not meet the terms of his release and he remained incarcerated until trial. ¶36 Notably, a defendant’s right to a speedy trial is not designed to prevent any pre-trial incarceration whatsoever. Rather, the speedy trial right is designed only to prevent oppressive pre-trial incarceration. State v. Johnson, 2000 MT 180, ¶ 26, 300 Mont. 367, ¶ 26, 4 P.3d 654, ¶ 26. The proper inquiry, therefore, is whether Longhorn was “unduly prejudiced by pre-trial incarceration.” Johnson, ¶ 26 (emphasis in original). ¶37 Longhorn does not raise any argument that he was prejudiced by his period of pre-trial incarceration. Considering the District Court’s willingness to release Longhorn on certain conditions, we conclude that his pre-trial incarceration was not unduly prejudicial. Anxiety and Concern ¶38 Anxiety and concern are an inherent part of being charged with a crime; therefore, the focus of this inquiry is on that anxiety and concern which is aggravated as a result of the delay. State v. Highpine, 2000 MT 368, ¶ 28, 303 Mont. 422, ¶ 28, 15 P.3d 938, ¶ 28. During the majority of the delay in this case, Longhorn was unaware that he had a criminal charge pending against him and there is nothing in the record to suggest that he suffered an inordinate amount of anxiety and concern. Impairment of Defense ¶39 Impairment of one’s defense is the most difficult form of speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony can rarely be shown. Highpine, ¶ 31 (quoting Doggett, 505 U.S. at 655, 112 S.Ct. at 2692-93, 120 L.Ed.2d at 530). This interest of the defendant carries more weight than the other bases for finding prejudice. Johnson, ¶ 34. ¶40 Longhorn argues that his defense was impaired by “the loss of possible exculpatory evidence by destruction of documents and deterioration of memory.” Specifically, Longhorn argues that school counselor Mark West remembered little if anything about the substance of his meetings with the complaining witness and he destroyed all of his records, including those pertaining to the complaining witness and her discussions about the sexual assault. He cites to our decision in Bruce where we stated, “we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove, or for that matter, identify.” Bruce, ¶ 37. Longhorn argues that the prejudice demonstrated explicitly by West’s lack of memory and implicitly by the length of the delay “clearly shows that the District Court erred by not dismissing this case.” ¶41 The State notes that upon learning of Longhorn’s arrest, it immediately contacted the victim and her mother, who had moved out of state, to make certain they were willing to return to Montana and testify at trial. The State then located the other witnesses who had been named in the Information. The only witness the State was unable to locate was a woman named Delaney, who was Longhorn’s girlfriend at the time of the incident. The State asserts that it cooperated in setting up pre-trial interviews of its witnesses for Longhorn’s counsel, Longhorn had every opportunity for pre-trial discovery, T.G. clearly recalled the details surrounding the sexual assault, and the teacher who T.G. confided in also clearly recalled T.G.’s report and her emotional state. The State argues that Longhorn’s defense was not impaired by the delay “because, other than holding the State to its burden of proof, he had no defense.” ¶42 In denying Longhorn’s motion to dismiss, the District Court noted that “Defendant has come forward with no real evidence that his defense has been impaired by this delay. There appears to be little, if any, evidence lost by the lapse of time. No exculpatory testimony appears to be missing. The State has contacted all of witnesses listed on the original Information. The alleged victim recalls the incident.” Before trial and after deposing West, Longhorn renewed his motion to dismiss and the court again denied the motion, stating “there is no evidence here or no indications that the defendant was prejudiced by that or that there is any indication that Mr. West would have said that the complaining witness was being untruthful.” ¶43 We agree with the District Court’s analysis. Longhorn has presented no evidence that his defense was impaired by West’s lack of memory. As noted by the State, Longhorn’s only defense at trial was to hold the State to its burden of proof. West’s sketchy memory and the lapse of time actually worked against the State and did not impair Longhorn’s defense. Balancing Speedy Trial Factors ¶44 As discussed above, the Bruce test requires that we balance all four factors in our analysis of speedy trial issues, and that when there is less fault on the part of the State, greater prejudice need be shown. Bruce, ¶ 53. ¶45 We conclude that (1) the length of delay was sufficient to raise the issue; (2) Longhorn asserted his right to a speedy trial; (3) Longhorn bore the burden of proving prejudice; (4) the delay does not weigh heavily against the State; and (5) Longhorn did not prove prejudice. After balancing all four factors, we conclude that the District Court did not err in holding that Longhorn was not denied a speedy trial and we accordingly affirm the District Court order denying Longhorn’s motion to dismiss for violation of his right to a speedy trial. ¶46 Did the District Court err when it denied Longhorn’s motion for a new trial? ¶47 Section 46-16-702, MCA, permits a defendant to move for a new trial and authorizes a trial court addressing such a motion to modify or change a verdict by finding a defendant not guilty of the offense charged. State v. Harris, 1999 MT 115, ¶ 15, 294 Mont. 397, ¶ 15, 983 P.2d 881, ¶ 15. The trial court’s decision to grant a new trial or modify or change a verdict must be justified by the law and the weight of the evidence. We review a district court’s decision on a motion for a new trial to determine whether the district court abused its discretion. Absent such abuse, we will affirm the district court’s decision. State v. Billedeaux, 2001 MT 9, ¶ 23, 304 Mont. 89, ¶ 23, 18 P.3d 990, ¶ 23. ¶48 On appeal, Longhorn argues that the District Court erred when it concluded that the State proved beyond a reasonable doubt that the complaining witness was sexually assaulted in August 1992. Specifically, Longhorn argues that the evidence introduced at trial demonstrates that the assault occurred during May or June 1991. He notes that T.G. testified that she has been “‘trying to get rid of this out of my mind for the last nine years’.... the clear implication of this comment is that the alleged sexual assault occurred in 1991.” He also points out that several witnesses testified that T.G. said the assault happened after her first grade year, which again was in 1991. ¶49 In its Order denying Longhorn’s motion for a new trial, the District Court concluded that “[t]he jury was properly instructed that the incident either happened in August of 1992, or did not happened [sic] at all.... [A] reasonable juror could easily find beyond a reasonable doubt that this incident occurred in August of 1992 as alleged. The court looked at the witnesses, heard the evidence and assessed the witnesses’ credibility as the jury did. Under the circumstances of this case, the court cannot second guess a jury and say it could not have happened as a matter of law.” ¶50 After reviewing the trial transcript, we agree with the District Court that a reasonable juror could have found that the assault occurred in August 1992. Kathy, T.G.’s mother, testified that they had a lot of house guests in August of 1992, that the atmosphere in the house was consistent with what T.G. described, and that she remembered the time period specifically because the family car had broken down that summer on the way to the Fort Belknap pow-wow. Additionally, T.G. testified that the assault happened in the summer of 1992. ¶51 The question of when the assault occurred was a factual question for the jury. There was substantial evidence for the jury to find that the assault occurred in August 1992. We conclude that the District Court did not abuse its discretion in denying Longhorn’s motion for a new trial. CHIEF JUSTICE GRAY, JUSTICES NELSON, COTTER, TRIEWEILER, REGNIER and RICE concur.
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JUSTICE COTTER delivered the Opinion of the Court. ¶1 M. Elizabeth Nelson (Elizabeth), appeals from the order of the Sixteenth Judicial District Court, Custer County, granting summary judgment in favor of Robert Y. Nelson (Robert), on the grounds that Elizabeth’s cause of action was barred by the three-year statute of limitations. ¶2 The sole issue is whether the District Court erred in granting summary judgment to Robert. We reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND ¶3 On May 14, 1998, Elizabeth filed a complaint, alleging she suffered injuries while working on a ranch operated by Robert. At the time of her injuries, Elizabeth and Robert were married, but the couple later divorced. As part of the ranch operation, Robert applied pesticides and insecticides and also inoculated sheep against sore mouth disease. Elizabeth assisted Robert with ranching activities on a regular basis from 1989 until their divorce proceedings began in 1994. Elizabeth claimed that on several occasions from 1989 to 1994, she was exposed to pesticides and insecticides (chemicals) as a result of Robert’s improper methods of application. Additionally, in July, 1989, while Elizabeth was holding a sheep in preparation for inoculation, Robert’s assistant, Merle Nelson, accidentally injected Elizabeth’s hand with bovine ecthyma vaccine, a vaccine containing the live virus for sore mouth disease. Elizabeth became dizzy immediately after the injection and lapsed into unconsciousness. After regaining consciousness, Elizabeth continued assisting with inoculating sheep throughout the rest of the day. ¶4 From 1989 through 1998, when Elizabeth filed the complaint in this matter, Elizabeth received extensive medical evaluations and treatments for numerous physical ailments which either surfaced or worsened subsequent to her exposure to the chemicals and the vaccine. Elizabeth suffered from many medical problems including rheumatoid arthritis, sleep apnea, Pickwithian syndrome, recurrent blistering on her feet and in her mouth, diabetes, hypothyroidism, headaches, and severe upper respiratory problems. ¶5 Elizabeth’s physicians were uncertain of the possible cause and effect relationship between her numerous physical ailments and her exposure to chemicals and the vaccine. One of her physicians, L. Keith Scott, M.D. (Dr. Scott), noted in an August 11,1995 letter that: The cause of much of her problem is still in question. She was exposed to multiple chemicals and has been seen by the toxicology unit at the University of Colorado. They did find that she did have some over exposure to certain chemicals but still have not addressed cause and effect relation. ¶6 Elizabeth sought medical treatment from Richard A. Nelson, M.D. (Dr. Nelson) on March 6, 1996. Dr. Nelson contacted the Centers for Disease Control in order to obtain information on human reactions to injection with bovine ecthyma vaccine, but no information was available, as Elizabeth was the only known person to have ever been injected with the vaccine. Regarding his belief as to a possible causal connection, Dr. Nelson stated in a letter dated May 20, 1996, that: [Elizabeth] has a significant list of physical disorders, not the least of which are asthma, reactive airway disease, rheumatoid arthritis, toxic exposure to nervous system associated with agricultural chemicals including herbicides, pesticides, and being directly injected with the vaccine for sore mouth disease .... This resulted in a systemic autoimmune reactivity associated with skin and mucus membrane disorders. ¶7 Elizabeth filed her complaint against Robert on May 14,1998, for damages incurred as a result of her exposure to the pesticides and insecticides and the injection of the bovine ecthyma vaccine. Robert moved for summary judgment, arguing that Elizabeth’s cause of action was barred by the three-year statute of limitations for negligence. Robert argued that Elizabeth knew of her injuries more than three years before this action was filed, as evidenced by a Motion for Modification of Separation Agreement she filed in the parties’ marital action on May 10, 1995. In the motion, Elizabeth’s attorney represented that “[a]t the time and entry of the decree, [Elizabeth] suffered from certain damages which were undisclosed or unknown to her or to her physicians. She had undergone an extensive amount of testing, evaluation and examination, but no determination of the cause of her problems existed.” The motion also stated: After entering into the Separation Agreement, the doctors now believe that the cause of her problem may very well stem from certain poisons used on the ranch .... The injuries suffered as a result of improper use of these chemicals ... constitute a life threatening and life long problem.... ¶8 Following a hearing on October 25, 2000, the District Court entered an order and memorandum granting Robert’s summary judgment motion. The court concluded that Elizabeth’s claim accrued when she was accidentally injected with the bovine vaccine in July of 1989, and that her complaint was therefore barred by the three-year statute of limitations. Elizabeth appeals the District Court’s grant of summary judgment. STANDARD OF REVIEW ¶9 We review appeals from summary judgment rulings de novo. Sleath v. West Mont Home Health Services, 2000 MT 381, ¶ 19, 304 Mont. 1, ¶ 19, 16 P.3d 1042, ¶ 19 (citation omitted). When we review a district court’s grant of summary judgment, we apply the same evaluation that the district court uses, based on Rule 56, M.R.Civ.P. Sleath, ¶ 19 (citation omitted). We set forth our inquiry as follows: 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. Sleath, ¶ 19 (citing Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 21, 297 Mont. 336, ¶ 21, 993 P.2d 11, ¶ 21). We review a district court’s interpretation of law to determine if it is correct. Steinback v. Bankers Life and Cas. Co., 2000 MT 316, ¶ 11, 302 Mont. 483, ¶ 11, 15 P.3d 872, ¶ 11 (citation omitted). DISCUSSION ¶10 Did the District Court err when it granted summary judgment to Robert? ¶11 In its memorandum and order granting summary judgment, the District Court concluded Elizabeth was barred by the three-year statute of limitations under § 27-2-204(1), MCA, because Elizabeth immediately suffered injuries following the injection, and thus “sustained obviously tortious injuries in July, 1989.” The court distinguished Elizabeth’s claim from Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 771 P.2d 956, wherein we held that the onset of the statute of limitations is determined by applying the discovery rule and establishing when the injured person knew, or in the exercise of due diligence, should have known of the facts constituting the cause of action. The District Court reasoned that Elizabeth’s injuries following the injection, unlike Hando’s latent injuries which developed over time, were “obvious” and “immediate,” noting Elizabeth instantly suffered unconsciousness after being injected with the vaccine. Accordingly, the court did not consider the averments in Elizabeth’s motion to modify the separation agreement. ¶12 Elizabeth argues the statute of limitations was tolled until the date her physical ailments were causally connected to the chemicals and the vaccine injection; thus her claim (filed in May, 1998) was filed within three years from the date Dr. Nelson first established the causal connection (May, 1996). Elizabeth contends that although she lost consciousness after the injection, the vaccine did not leave immediately noticeable effects, and that her subsequent physical problems surfaced over the course of time, and were not causally linked to the injection until 1996. Elizabeth contends the District Court erred in its interpretation of Hando, arguing Hando is not distinguishable from her situation. ¶13 Robert agrees with the District Court and asserts that this case is not controlled by Hando, arguing that Elizabeth’s injury was obviously tortious, unlike Hando’s latent disease or injury. Robert also alleges Elizabeth knew of the causal connection between the injection and her physical ailments as early as May 10, 1995, as evidenced by her motion for modification of the settlement agreement. ¶14 The statute of limitations in Montana in an action for negligence is three years. Section 27-2-204(1), MCA. The period of limitation begins when the claim or cause of action accrues and is not postponed because of lack of knowledge of the claim or cause of action by the party to whom it has accrued. Section 27-2-102(2), MCA. However: [t]he period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party if: (a) the facts constituting the claim are by their nature concealed or self-concealing. Section 27-2-102(3), MCA. Addressing this so-called “discovery rule,” we have held that “when the facts constituting a claim or cause of action for personal injury are, by their nature, concealed or self-concealing,” the period of limitations does not begin to run “until the injured party has discovered the facts constituting the claim or, with due diligence, should have discovered those facts.” Gomez v. State, 1999 MT 67, ¶ 10, 293 Mont. 531, ¶ 10, 975 P.2d 1258, ¶ 10 (citing § 27-2-102(3)(a), MCA; and Kaeding v. W.R. Grace & Co., 1998 MT 160, ¶ 17, 289 Mont. 343, ¶ 17, 961 P.2d 1256, ¶ 17). ¶15 We applied these principles in Hando, where the plaintiff was exposed to paint fumes while working at a coal processing plant in 1981 and 1982, and in the years following her exposure, suffered from many physical, mental, and emotional reactions. Hando, 236 Mont. at 495-96, 771 P.2d at 958. When Hando was exposed to the paint in 1982, she briefly lost consciousness, and her supervisor contacted the poison control center and arranged for her to be examined. Hando, 236 Mont. at 495, 771 P.2d at 958. Between 1982 and 1984, none of the numerous physicians who examined Hando would attribute her continuing ailments to her exposure to the paint. Hando, 236 Mont. at 502, 771 P.2d at 962. ¶16 Hando began receiving worker’s compensation benefits for her ailments in May of 1982. However, she did not commence a tort action until October, 1985, following her receipt of a medical opinion in early 1984 that her problems were caused by her toxic exposure to paint. Hando, 236 Mont. at 496, 771 P.2d at 958. ¶17 In recognizing that when an injury is self-concealing, the statute of limitations is tolled until a plaintiff discovers her injury, or until she should have discovered her injury with the use of due diligence, we found that although Hando was “very much aware” of her medical problems and that she “suspected that her ongoing ailments stemmed from her exposure” to paint, she did not know the cause of those injuries until May of 1984, when “the veracity of her belief’ was finally known. Hando, 236 Mont. at 501, 771 P.2d at 962. We noted that although Hando diligently sought to establish the cause of her ailments, none of the physicians who examined her prior to 1984 attributed her problems to her exposure to paint, and thus held the statute of limitations on Hando’s claim was tolled until a medical opinion confirmed the causal connection between her symptoms and her injury (“three-year statute of limitations did not begin to run until a medical opinion was rendered in April-May of 1984 linking her injuries to her exposure to the PPG paint”) Hando, 236 Mont. at 502, 771 P.2d at 962. ¶18 We conclude the District Court erred in distinguishing Elizabeth’s situation from our holding in Hando. In both Hando and here, the plaintiff lacked knowledge concerning the ultimate causal link between the ailments suffered by her and the exposures each had experienced (i.e., paint or chemicals and the vaccine). Both Hando and Elizabeth suspected the cause of her injuries and diligently sought medical treatment and diagnosis, but neither was certain of the causal relationships until later confirmed by a physician. Notably, both plaintiffs suffered immediate effects from the exposure as evidenced by loss of consciousness, but both plaintiffs also suffered other continuing effects that neither could have predicted at the time of the exposure. Moreover, both plaintiffs asserted beliefs or suspicions that her medical problems stemmed from exposure to paint/chemicals prior to filing her respective cause of action: Hando signed a workers’ compensation claim in May of 1982, stating her belief that her problems stemmed from exposure to paint; and Elizabeth filed a motion to modify a marital settlement wherein she recited suspicions concerning problems possibly caused by her exposure to pesticides. Therefore, we conclude this case is on all fours with Hando, and disagree with the District Court’s conclusions to the contrary. ¶19 Although in his dissent, Justice Rice agrees Hando applies to Elizabeth’s factual situation-albeit by a slightly different analysis-he goes on to argue Elizabeth’s claim should be dismissed under the doctrine of judicial estoppel. First, we note that Robert did not assert the doctrine of judicial estoppel in either his Motion for Summary Judgment, or on appeal. Recently, “we decline[d] to consider arguments based on the doctrine of judicial estoppel that are raised for the first time on appeal.” Wheelsmith Fabrication v. Dept. of Labor, 2000 MT 27, ¶ 15, 298 Mont. 187, ¶ 15, 993 P.2d 713, ¶ 15 (citation omitted). ¶20 Turning to the merits of Justice Rice’s dissent, although it correctly notes the purpose of judicial estoppel is to prevent the use of inconsistent assertions and to prevent parties from playing fast and loose with the courts, it fails to apply the rationale underlying the doctrine to the facts presented here. Judicial estoppel is a doctrine created by judges that: seeks to prevent a litigant from asserting a position [that is] inconsistent, conflicts with, or is contrary to one that she has previously asserted in the same or in a previous proceeding; it is designed to prevent litigants and their counsel from playing fast and loose with the courts and to protect the integrity of the judicial process. Judicial estoppel doctrine is equitable and is intended to protect the courts from being manipulated by chameleonic litigants who seek to prevail, twice, on opposite theories. The purpose of the doctrine of judicial estoppel is to reduce fraud in the legal process by forcing a modicum of consistency on the repeating litigant. 28 Am. Jur. 2d Estoppel and Waiver § 74 (2000). ¶21 Contrary to assertions made by Justice Rice in his dissent, there are no such “chameleonic” machinations here. Throughout her illnesses, Elizabeth diligently sought to establish the link between her injection and exposures and her illness. She is not now changing her theory of liability, nor is she trying to prevail on opposite theories. Rather, she waited to bring her claim until she could prove the necessary nexus between the suspected cause of her ailments and her ongoing medical conditions. There is simply no evidence that Elizabeth is seeking to play fast and loose with the courts or trying to take advantage of earlier proceedings. ¶22 Finally, contrary to the argument in both dissents, judicial estoppel does not apply here because Elizabeth’s current position is not inconsistent with what she averred in May of 1995. The doctrine of judicial estoppel binds a party to her judicial declarations, and precludes her from taking a position inconsistent with them in a subsequent action or proceeding. Kauffman-Harmon v. Kauffman, 2001 MT 238, ¶ 15, 307 Mont. 45, ¶ 15, 36 P.3d 408, ¶ 15. There is simply no actual inconsistency between Elizabeth’s speculation on the possible causes of her medical condition when seeking modification of her marital settlement, and her current assertion, following Dr. Nelson’s diagnosis of May 20, 1996, that there is a medically established causal relationship between the combination of the injection with her exposure to chemicals, and her medical condition. ¶23 Moreover, we do not agree that Elizabeth’s motion to modify the settlement agreement definitively established her knowledge of the causal connection between her injuries and the chemicals and injection. On August 11, 1995, nearly three months after the motion was filed, there was still uncertainty as to the causal connections as evidenced by Dr. Scott’s letter which stated: “[The toxicology unit] did find that [Elizabeth] did have some over exposure to certain chemicals but [they] still have not addressed cause and effect relation. We are looking into these cause and effect relationships and more information should be forthcoming.” Moreover, the statements in Elizabeth’s motion are speculative as to the cause of her injuries: “doctors now believe that the cause of her problem may very well stem from certain poisons used on the ranch ...” (emphasis added). ¶24 If the state of Elizabeth’s knowledge, or her diligence in discovering the causal link between the injection and chemicals and her ailments was disputed, this issue could not be resolved on summary judgment. The rule in Montana, and in the majority of jurisdictions, is that when there is conflicting evidence as to when a cause of action accrued, the question of whether an action is barred by the statute of limitations is for the jury to decide. Hill v. Squibb & Sons, E.R. (1979), 181 Mont. 199, 212, 592 P.2d 1383, 1390-91 (citation omitted). See also, McCormick v. Brevig, 1999 MT 86, ¶¶ 102-103, 294 Mont. 144, ¶¶ 102-103, 980 P.2d 603, ¶¶ 102-103 (it is for the trier of fact to determine at what point plaintiff discovered or should have discovered through due diligence any negligence by the accountant when the existence of a trust was self-concealing); and Werre v. David (1996), 275 Mont. 376, 384, 913 P.2d 625, 630 (the point at which plaintiff discovered a connection between the sexual abuse she experienced as a child and her mental disorders as an adult was a question of fact for the jury; thus, denial of defendant’s motion for a directed verdict was correct). ¶25 However, Robert did not challenge Elizabeth’s diligence in discovering the causal connection, nor did he dispute the date of Dr. Nelson’s conclusions concerning causation. Instead, Robert asserted Elizabeth’s injuries were distinguishable from those in Hando because they were immediate and obviously tortious, and that Elizabeth’s averments in her motion indicated an earlier knowledge of the causal link than that established by Dr. Nelson in May of 1996. Other than his interpretation of Elizabeth’s motion, Robert asserted no independent facts, such as physicians’ opinions or medical evaluations, that imputed knowledge of the causal link to Elizabeth prior to May of 1996. We have concluded that Elizabeth’s averments in her motion to modify did not establish she knew of a causal connection between her injuries and the chemicals and injection at that time. Thus, there appears to be no factual dispute as to the timing of Elizabeth’s knowledge of the causal connections, such as would require remand for further factual determination. ¶26 Therefore, it appears there is no genuine issue of material fact as to whether Elizabeth discovered, or in the exercise of due diligence should have discovered, the causal relationship between her ailments and the combination of the chemicals and the vaccine, more than three years before she filed suit. Therefore we conclude as a matter of law that Elizabeth’s complaint was timely filed. ¶27 Accordingly, the District Court’s order granting summary judgment is reversed and this case is remanded for trial on the merits. CHIEF JUSTICE GRAY, JUSTICES NELSON and REGNIER concur.
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JUSTICE NELSON delivered the Opinion of the Court. ¶1 Eric Matthew Snow (Eric) appeals an Order of the District Court for the Twenty-Second Judicial District, Carbon County, denying Eric’s motion to modify the visitation portion of the decree dissolving his marriage to Pamela Jean Haxton Snow (Pamela). Because we conclude that Eric has not complied with the Montana Rules of Appellate Procedure in filing his brief on appeal, we dismiss the appeal and award attorney’s fees to Pamela. ¶2 In view of Eric’s failure to properly set forth the issues on appeal (which we discuss in more detail later in this Opinion), we will consider this matter on the issues as delineated and set forth by Pamela. Thus, as restated by Pamela, the issues on appeal are: ¶3 1. Has Eric properly appealed the District Court’s order? ¶4 2. Did the District Court err in not adopting Eric’s Proposed Residential Schedule? ¶5 3. Did the District Court err in denying Eric’s Motion for Summary Judgment? ¶6 4. Should Pamela be awarded her attorney’s fees because of a frivolous appeal? ¶7 Since we find Issue 1 dispositive, we do not address Issues 2 and 3. Factual and Procedural Background ¶8 Eric and Pamela were married on December 20, 1986, in Newberg, Oregon. They have two sons: Colton, bom February 24, 1989; and Matthew, bom October 7, 1991. In June 1994, Pamela and the children returned to Montana for a visit with Pamela’s parents. During this visit, Pamela decided to remain in Montana because of problems with her marriage. On July 11,1994, Pamela filed a “Petition for Unlimited Separation” in the Circuit Court of the State of Oregon for the County of Marion. And, in December 1994, Eric and Pamela entered into a Marital Settlement Agreement. That agreement was incorporated into a “Judgment of Unlimited Separation” in the Oregon Circuit Court on January 18,1995. ¶9 From June 1994 until July 1995, the parties attempted a reconciliation with Eric moving to Montana in December 1994 to be near Pamela and the children. However, the reconciliation efforts proved fruitless and Pamela filed a Petition for Dissolution of Marriage in the District Court for the Thirteenth Judicial District, Carbon County, Montana, on July 24, 1995. ¶10 On August 22, 1996, Eric, acting pro se, filed his “Amended Motion to Reopen Case and Amended Motion to Give Full Custody of Parties Minor Children to Father” in the Oregon courts. Pamela responded with a Motion to Dismiss and on December 6, 1996, the Oregon court dismissed Eric’s motion and awarded Pamela her attorney’s fees. On January 13, 1997, Eric appealed to the Oregon Appellate Court. That court also ruled against Eric and awarded Pamela her attorney’s fees on appeal. ¶11 On January 31,1997, the Carbon County, Montana District Court entered a decree dissolving the parties’ marriage. This Final Decree of Dissolution incorporated the Marital Settlement Agreement entered into by the parties in December 1994, with some minor modifications as to visitation. Eric appealed to this Court on February 25,1997, but we affirmed the determination of the District Court in a noncitable opinion. In re Marriage of Snow, 1998 MT 146N. Thereafter, Eric filed two Petitions for Rehearing, both of which we denied, whereupon Eric filed a Petition for Writ of Certiorari in the United States Supreme Court in October 1998. Said petition was subsequently denied. Snow v. Snow (1999), 525 U.S. 1126, 119 S.Ct. 911, 142 L.Ed.2d 909. ¶12 From January 31,1997, onward, Eric filed dozens of motions with the District Court, most of which requested a change in visitation. On December 28, 1998, the District Court issued an “Order re Contempt, Order Implementing Stipulation and Order of Protection.” In that order, the court granted Pamela’s Motion for Contempt and levied a fine against Eric. The court also issued an order permanently restraining Eric from coming within five miles of Pamela’s home or place of employment and from coming within 1500 feet of Pamela. Thereafter, Eric left Montana to return to Oregon. ¶13 The parties’ Final Decree of Dissolution provides one visitation schedule when the parties live more than 120 miles apart and another visitation schedule when the parties live less than 120 miles apart. On May 8, 2000, Eric sent a notice to the District Court that he intended to return to Montana to live by June 1, 2000. Eric also sent the court his “Proposed Residential Schedule” wherein Eric attempted to revise the parties’ parenting arrangement and the visitation schedules as set forth in the Final Decree of Dissolution. In his Proposed Residential Schedule, Eric asserted that the schedule would take effect on June 9, 2000. ¶14 Eric alleges that he also sent Pamela a copy of the new schedule and the notice of his intent to move. Pamela maintains, however, that she never received a copy of the notice or the schedule. Due to problems between the parties, Eric was to correspond with Pamela only through her attorney or a neutral third party. Any correspondence from Eric sent directly to Pamela was returned by her unopened. ¶15 Eric subsequently sent Pamela’s counsel a copy of the Proposed Residential Schedule which counsel received on June 26, 2000. Eric informed counsel that under the provisions of § 40-4-217, MCA, since Pamela did not respond to Eric’s Proposed Residential Schedule within 30 days, the District Court was required by law to adopt that schedule. Pamela’s counsel responded that Eric was misinterpreting § 40-4-217, MCA, and that if Eric wanted to modify the current visitation schedule, he would have to go back to court. ¶16 On July 21, 2000, the District Court issued an order wherein the court refused to adopt Eric’s Proposed Residential Schedule. In that order, the court admonished Eric for attempting to modify the parties’ parenting arrangement without adequate knowledge of the law and the appropriate procedure to address such issues. In response, Eric requested an immediate telephone hearing on the matter. Said hearing took place on July 27,2000, at which time the District Court informed Eric that he would have to adhere to the visitation schedule as set forth in the parties’ Final Decree of Dissolution. ¶17 On November 27, 2000, Eric filed a Motion for Modification in which he again requested that the court adopt his Proposed Residential Schedule and a Motion for Summary Judgment of the Motion for Modification in which he maintained that since Pamela did not respond to his Proposed Residential Schedule within 30 days, he was entitled to have the court adopt his proposed schedule. In addition, on December 14, 2000, Eric filed a Motion for Default Judgment requesting that the District Court enter an order of default against Pamela because Pamela did not respond to his other motions within 14 days. ¶18 Thereafter, additional motions and responses were filed by both parties until, finally, on February 13, 2001, the District Court issued an order denying Eric’s motions for modification, for summary judgment, and for a default judgment and reaffirming the court’s prior determination that the visitation schedule as set forth in the parties’ Final Decree of Dissolution adequately and appropriately provided for parenting opportunities between the parties when they reside within 120 miles of each other and when they reside further than 120 miles from each other. The court further determined that Eric’s reliance upon § 40-4-217, MCA, is misplaced in view of “the reality that [Eric’s] return to Montana actually places him closer to his children, not further away” and that “[t]he current visitation schedule already addresses parenting issues arising from relocation of the parties’ place of residence.” Consequently, finding that Eric failed to present evidence showing adequate cause for modification based on the best interests of the children standard, the court denied Eric’s motions. It is from this order that Eric appeals. Issue 1. ¶19 Has Eric properly appealed the District Court’s order ? ¶20 Pamela argues on appeal that Eric failed to properly file his Appellant’s Brief in violation of Rule 23, M.R.App.P., thus his appeal should be summarily dismissed. Pamela alleges that Eric violated Rule 23(a)(1), M.R.App.P., by not properly citing his authorities; Rule 23(a)(2), M.R.App.P., by not properly setting forth the issues presented for review; Rule 23(a)(3), M.R.App.P., by not filing a proper statement of the case or a proper statement of the facts; Rule 23(a)(4), M.R.App.P., by not preceding his argument with a properly drafted summary; and Rule 23(a)(5), M.R.App.P., by not providing a conclusion stating the precise relief sought. Many of Pamela’s arguments in this regard are well taken. ¶21 First, Rule 23(a)(1), M.R.App.P., requires that all briefs contain “[a] table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.” The error Pamela complains of here is that Eric failed to properly cite the United States Supreme Court case of Troxel v. Granville (2000), 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, “so that it may be reviewed as to its applicability.” In this regard, Eric refers to it as a “Supreme Court of Washington” case rather than a case from the Supreme Court of the United States, thus hindering Pamela in her attempts to review the case for its applicability to the facts here. ¶22 Second, Pamela argues that Eric violated Rule 23(a)(2), M.R.App.P., by not properly setting forth the issues presented for review. Eric lists six issues in his brief on appeal, but he fails to argue all but his first issue. Even so, Eric’s first issue is almost unintelligible and creates a disadvantage for Pamela by not setting forth a clear statement of what Eric is attempting to argue and what Pamela needs to address in her response brief. ¶23 Third, Pamela argues that Eric violated Rule 23(a)(3), M.R.App.P., by not filing a proper Statement of the Case or a proper Statement of the Facts. Rule 23(a)(3), M.R.App.P., requires that the Statement of the Case “shall first indicate briefly the nature of the case and its disposition in the court below.” Pamela is correct that Eric fails to set forth the nature of the case-i.e., that this is a case involving visitation. However, Eric does manage to indicate the disposition of the case in the court below-i.e., “the Court issued an Order... denying the Motion for Modification and the Motion for Summary Judgment” regarding Eric’s Proposed Residential Schedule. ¶24 In addition, Rule 23(a)(3), M.R.App.P., requires that, after the Statement of the Case, “[t]here shall follow a statement of the facts relevant to the issues presented for review, with references to the pages of the parts of the record at which material facts appear.” Eric asserts in the beginning of his Statement of Facts: “In accordance with Rule 23(e), References to Record: No transcript or record exist.” While Eric may be correct that no transcript pertinent to this case exists, there is a substantial record consisting of five folders from the District Court. Eric should have referenced the documents within this District Court file in presenting his Statement of Facts to this Court. ¶25 Fourth, Pamela argues that Eric violated Rule 23(a)(4), M.R.App.P., by not preceding his argument with a properly drafted summary. While this rule does require that the argument be preceded by a summary, we have not in the past faulted someone, particularly not an individual acting pro se, for placing the summary at the end of the argument as Eric did here. Also, while Eric’s summary is not a model of clarity, it does set forth an “accurate statement of the arguments made in the body of the brief’ as required by the rule. ¶26 Fifth, Pamela argues that Eric violated Rule 23(a)(5), M.R.App.P., by not providing a “conclusion stating the precise relief sought.” Contrary to Pamela’s contention, Eric does ask in his conclusion that we “overturn the lower Court’s rulings and adopt the Proposed Residential Schedule.” While this statement comes at the end of a wordy discourse about the policy behind § 40-4-217, MCA, and the Legislature’s intentions in enacting it, nevertheless, Eric has complied with the rule. ¶27 Finally, although Pamela does not list this as one of Eric’s violations of Rule 23, M.R.App.P., in filing his appeal with this Court, it is actually the most egregious violation of the rules committed by Eric. Rule 23(a)(4), M.R.App.P., provides that “[t]he argument shall contain 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.” In five of the issues presented by Eric, he sets forth little or no argument and no citations in support of his argument. Instead, after setting forth the issue, Eric merely states: “This issue is presented at face value to the court without argument.” ¶28 In order for Eric to properly raise an issue in his opening brief, he must list his contentions with respect to the issues presented and the reasons therefor with citation to the authorities 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 (citing In re Marriage of Pfennigs, 1999 MT 250, ¶ 32, 296 Mont. 242, ¶ 32, 989 P.2d 327, ¶ 32). “[I]t is not this Court’s obligation to conduct legal research on appellant’s behalf, to guess as to his precise position, or to develop legal analysis that may lend support to his position.” In re Estate of Bayers, 1999 MT 154, ¶ 19, 295 Mont. 89, ¶ 19, 983 P.2d 339, ¶ 19 (citations omitted). ¶29 Accordingly, we dismiss Eric’s appeal for failing to comply with the Montana Rules of Appellate Procedure. Issue 4. ¶30 Should Pamela be awarded her attorney’s fees because of a frivolous appeal? ¶31 Pamela requests that we award her her attorney’s fees pursuant to Rule 32, M.R.App.P., based upon Eric’s appeal of the District Court’s order “without substantial or reasonable grounds.” As a general rule, this Court will not impose sanctions pursuant to Rule 32, M.R.App.P., unless the appeal is entirely unfounded and intended to cause delay or unless counsel’s actions otherwise constitute an abuse of the judicial system. In re Marriage of Moss, 1999 MT 62, ¶ 41, 293 Mont. 500, ¶ 41, 977 P.2d 322, ¶ 41 (citations omitted). ¶32 In this case, we hold that Eric’s appeal was taken without substantial and reasonable grounds, was entirely unfounded, and was intended to cause delay. The District Court has repeatedly ruled on visitation in this case determining that the visitation schedule as set forth in the parties’ Final Decree of Dissolution adequately and appropriately provides for parenting opportunities between the parties. Eric continually files motions in the District Court and appeals to this Court attempting to modify visitation. In the appeal presently before us, Eric fails to properly present evidence or authority that the District Court erred in refusing to modify visitation. Moreover, he has filed briefs on appeal that do not comply with the Montana Rules of Appellate Procedure and that Pamela cannot intelligently respond to. Accordingly, we award Pamela her attorney’s fees and costs for having to respond to this frivolous appeal. See Thomas v. Hale (1990), 246 Mont. 64, 68-69, 802 P.2d 1255, 1258; In re Marriage of West (1988), 233 Mont. 47, 53, 758 P.2d 282, 286. ¶33 We dismiss this case and we remand to the District Court for a determination of Pamela’s attorney’s fees and costs. CHIEF JUSTICE GRAY, JUSTICES COTTER, REGNIER and LEAPHART concur.
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JUSTICE LEAPHART delivered the Opinion of the Court. ¶ 1 Appellant, James V. Lewis (Lewis), appeals, and Respondent, B & B Pawnbrokers, Inc. (B&B), cross-appeals from the order of the District Court of the Eighth Judicial District, Cascade County. This case originated with a claim filed by Lewis with the Montana Department of Labor and Industry (the Department) for unpaid overtimé compensation from B&B. The District Court ultimately dismissed Lewis’ claim on the ground that he was estopped from raising the claim as a result of failing to notify his employer, B&B, prior to filing his claim, that he was legally entitled to unpaid overtime wages. We reverse and remand the issues raised on appeal by Lewis, and affirm the issue raised by B&B on cross-appeal. Issues Presented ¶2 Lewis raises essentially two issues on appeal: ¶3 (1.) Did the District Court err in ruling that Lewis was estopped from claiming overtime compensation because he failed to provide notice to his employer, B&B, prior to filing his claim with the Department? ¶4 (2.) Did the District Court err when it upheld the Department’s use of a fixed salary for fluctuating hours method for purposes of computing Lewis’ unpaid overtime wages? ¶5 B&B raises one issue on cross-appeal: ¶6 (3.) Did the District Court err in refusing to allow B&B credit for alleged lunch breaks taken by Lewis over the course of his employment? Factual and Procedural History ¶7 Lewis worked for B&B, a licensed Montana Corporation, for five and one-half years as a full-time employee. He was employed with B&B for the period of June 1, 1987, through November 30, 1992. Lewis performed a variety of tasks while at B&B. Primarily, his duties consisted of delivery and repair. As a result, Lewis generally did not work behind the counter or on the sales floor in customer service. Instead, he spent a majority of his working time in the backroom of the pawnshop and the remainder of his working hours in a vehicle performing deliveries. ¶8 At the outset of his employment, Lewis worked from 8:30 a.m. to 5:30 p.m., Monday through Saturday, with one Saturday off every other week. Initially, B&B compensated Lewis $1,100 per month through an odd method of payroll installments. Over the course of each month, he received three separate paychecks. On the first and the fifteenth of each month, Lewis would receive one-quarter of his current monthly wages; on the tenth of the month, he would receive one-half of his monthly wages from the previous month. ¶9 Ron Tihista (Tihista), the owner of B&B, explained to Lewis at the outset of his employment that his monthly wage of $1,100 was a rounded-up approximation arrived at by taking the then-applicable minimum wage rate, adding $1.00 per hour to that rate, and assum ing a 48 hour workweek every other week with those 16 additional monthly hours being paid at an overtime rate of IV2 times the regular rate. Tihista compensated Lewis for 16 hours of overtime every month because he initially required Lewis to work two 8-hour Saturdays per month. On July 1,1988, B&B gave Lewis a $100 per month raise, bringing his monthly wage to $1,200. At the same time, due to the hiring of additional employees by B&B, Lewis was given an additional Saturday off each month. Lewis was paid this increased monthly wage according to the same tripartite monthly payment scheme just discussed. ¶10 In 1990, B&B changed its payment schedule to semi-monthly paychecks. Then, in 1992, B&B again changed its payment scheme, this time to bi-weekly paychecks. However, B&B adjusted the amount per check so that Lewis’ monthly pay remained static. Furthermore, irrespective of the actual number of days and hours worked for B&B each month, Lewis’ gross wage remained at $1,200 per month. Lewis’ pay was not docked for sick days or other days off, for holidays or vacations, or for leaving early from work. Lewis understood that he was being paid on an “hourly” basis, but that his monthly take-home pay would remain the same regardless of the actual number of days or hours worked per month, ¶11 The backroom ofthe pawnshop, where Lewis primarily worked, was stocked with food items, and also contained a refrigerator and microwave. Occasionally, Tihista would provide home-cooked food for employees to eat for lunch. In addition, Tihista also regularly provided his employees with free lunches on the first and fifteenth of each month, and on birthdays and holidays. Once a month, a saloon next door to the pawnshop would also offer B&B employees free lunch when the saloon had a barbecue. ¶ 12 Over the course of Lewis’ employment, B&B had no formal policy regarding employee lunch breaks. Employees were not given a set lunch hour, but instead, usually ate lunch whenever they had a chance — sometimes interrupting their lunch break to wait on customers or to attend to other pressing business. They were also free to leave the pawnshop for lunch. Because of the nature of Lewis’ duties, he was not subject to customer interruptions if he chose to stop and eat lunch. However, Lewis rarely took more than a couple of minutes off for lunch in the backroom. More often than not, Lewis did not take a lunch break at all, but continued to work while he ate lunch. On occasion, he did stop for lunch while out making deliveries. ¶13 Prior to November of 1992, neither Lewis nor B&B kept hourly records of work performed. Tihista did keep track of employee days off, business holidays, birthdays, employment anniversaries, and other pertinent business dates in a daily planner. Lewis was placed on part-time status with B&B in October of 1992. Lewis received his last paycheck from B&B on November 17,1992 and did not return to work for B&B after that date. Beginning November 19, 1992, after B&B was notified by the Department that Lewis had filed a claim for unpaid overtime compensation, Tihista obtained a time-clock and began to require employees to punch-in and punch-out. ¶14 Inhis wage claim, Lewis alleged that B&B owedhim $35,878.92 in unpaid wages. On August 12,1993, the Wage and Hour Division of the Department issued its initial determination with respect to Lewis’ wage claim, finding that B&B owed Lewis $3,322.84 in wages due, plus a 100% statutory penalty, amounting to a total award of $6,645.68, plus interest. This conclusion was based upon the assumption that Lewis had worked 8V2 hours per day, six days a week, for the entire period in dispute. In addition, the Department gave credit to B&B for a 30-minute lunch break each day by Lewis, as well as for vacations, holidays, and other days that Lewis had taken off from work. The Department utilized the fluctuating workweek method to derive Lewis’ unpaid overtime compensation. ¶ 15 B&B then requested a hearing on the Department’s determination. The hearing officer issued a decision on January 31, 1995, awarding Lewis $8,477. On February 2, 1995, however, the hearing officer acted sua sponte to amend his award, reducing the amount owed Lewis to $4,236.23 due to the fact that Lewis had worked less than 8V2 hours on most Saturdays throughout the course of his employment. Lewis then appealed the amended decision to the Board of Personnel Appeals (the Board). The Board conducted a hearing on May 10, 1995, and reversed the hearing officer’s amended decision, remanding the case back to the Department for further consideration. This remand was based on the lack of evidence supporting a bona fide lunch break and the hearing officer’s failure to properly compute interest on Lewis’ unpaid wages. On October 18,1995, the Department thus entered a new order on remand awarding Lewis $7,336.57, plus interest. ¶16 Lewis again appealed to the Board, and B&B cross-appealed. Following another hearing on January 23,1996, the Board again reversed and issued a new order of remand. This time, the primary basis for the remand was the inaccuracy of the hearing officer’s computation of unpaid hours of work. The Department issued a new order on remand, recalculating Lewis’ award at $5,459.24, plus interest. Again, both Lewis and B&B appealed the Department’s decision. After yet another hearing, the Board issued a final order affirming the hearing officer on July 25,1996. From this order, both Lewis and B&B petitioned for judicial review in District Court. ¶17 On October 20,1997, the District Court issued its order. The court affirmed the Department’s use of the fluctuating workweek method to compute Lewis’ overtime compensation. In response to B&B’s arguments, the court found that the Department properly refused to credit B&B for Lewis’ alleged lunch breaks. Ultimately, however, the District Court dismissed Lewis’ claim on the grounds of estoppel. The court concluded that Lewis could not raise a claim for overtime compensation because he had failed to properly notify B&B, prior to filing his wage claim, that he had been undercompensated during his employment. Lewis appeals the District Court’s order, and B&B cross-appeals. Discussion ¶18 In Langager v. Crazy Creek Products, Inc., 1998 MT 44, ¶ 13,287 Mont. 445, ¶13,954 P.2d 1169, ¶ 13, we stated the applicable standard of review for administrative findings of fact and conclusions of law: A district court must review an administrative agency’s findings of fact to determine “whether the findings are clearly erroneous in view of the rehable, probative and substantial evidence in the whole record.” State Personnel Div. of Dep’t of Admin, v. Board of Personnel Appeals, Div. of Dep’t of Labor and Industry (1992), 255 Mont. 507, 511, 844 P.2d 68, 71 (citing Department of Revenue v. United Parcel Service, Inc. (1992), 252 Mont. 476, 482, 830 P.2d 1259, 1263); see also § 2-4-704, MCA. Furthermore, the district court will uphold an agency’s conclusion of law “if the agency’s interpretation of the law is correct.” State Personnel Division of Dep’t of Admin., 255 Mont. at 511, 844 P.2d at 71 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603). We in turn employ the same standards when reviewing the district court’s decision, and must accordingly determine whether an agency’s findings of fact are clearly erroneous and whether its conclusions of law were correct. See Swan Corp. v. Department of Revenue (1988), 232 Mont. 210, 213, 755 P.2d 1388, 1390. Issue 1 ¶19 Did the District Court err in ruling that Lewis was estopped from claiming overtime compensation because he failed to provide notice to his employer, B&B, prior to filing his claim with the Department? ¶20 In its order, the District Court stated: Based upon the record, it is clear that Mr. Lewis did not at anytime during his employment advise his employer that he viewed himself as having been paid inappropriately or having worked overtime for which he had not been paid. The Court concludes as a matter of law that Mr. Lewis is estopped from claiming compensation for overtime work, “where he failed to report it or to inform his employer that he expected compensation for it” until after he left the employment. Celmer v. Schmitt, [198 Mont. 271, 273,] 645 P.2d 946, 948 (Mont. 1982)[.] ¶21 Lewis argues that the District Court erred in applying a contract defense — estoppel or waiver — to defeat a statutory entitlement, where the Montana Legislature has not expressly approved of such a defense. To the extent that the court relied on the estoppel language just quoted from Celmer v. Schmitt (1982), 198 Mont. 271, 645 P.2d 946, Lewis urges this Court to either clarify or overrule Celmer on that point. Moreover, Lewis points to the subsequent decision of Hoehne v. Sherrodd, Inc. (1983), 205 Mont. 365, 668 P.2d 232, as directly contrary to the proposition in Celmer upon which the District Court based its estoppel holding. ¶22 We agree with Lewis. While the freedom to contract in Montana is broad, it is not absolute. “Parties cannot privately waive statutes enacted to protect the public in general.” Phoenix Phys. Then v. Unemployment Ins. Div. (1997), 284 Mont. 95, 104, 943 P.2d 523, 528; see also § 1-3-204, MCA (“a law established for a public reason cannot be contravened by a private agreement”). In the context of Montana’s employment laws, we long ago recognized that an employee may waive the advantage of any provision of law that was intended solely to benefit that employee, provided that such a waiver is not violative of public policy. Shea v. North-Butte Mining Co. (1919), 55 Mont. 522, 535, 179 P. 499, 503. ¶23 More recently, however, we cautioned that “an employee may not enter into an agreement which operates to waive compensation for overtime actually worked.” Garsjo v. Department of Labor and Indus. (1977), 172 Mont. 182, 188, 562 P.2d 473, 476. Because “overtime premiums are for the protection and benefit of the general public, private waiver is contrary to public policy.” Hoehne, 205 Mont. at 370, 668 P.2d at 234 (citing State ex rel. Neiss v. District Court (1973), 162 Mont. 324, 328, 511 P.2d 979, 981; § 1-3-204, MCA). In spite of these authorities, B&B asserts that the Celmer decision is controlling. In addition, B&B cites decisions from other jurisdictions where the doctrine of estoppel has been applied in allegedly similar circumstances to bar a claim. First, we note that the estoppel language in the Celmer opinion, as cited in the District Court’s order, is mere dictum. Second, we decline to consider authority from other jurisdictions in this case, because, as Lewis persuasively argues, Dae Hoenhe decision is directly on point. ¶24 In Hoenhe, the employer argued that the employee should be estopped from claiming overtime compensation because he failed to inform the employer that he expected overtime pay. Hoehne, 205 Mont. at 369, 668 P.2d at 234. There, we recognized that the laws of Montana that ensure an employee’s right to receive overtime pay... are expressions of public policy created to protect workers, and restraining those from withholding overtime pay is vindication of a public right rather than a private right. Withholding wages due, such as overtime pay, is considered a continuing public offense. Hoehne, 205 Mont. at 369, 668 P.2d at 234. Therefore, contrary to B&B’s position in this appeal that Lewis’ silence constitutes a waiver of his right to unpaid overtime compensation, we stated in Hoehne that allowing an “implied waiver of... overtime payments ... would be contrary to public policy.” Hoenhe, 205 Mont. at 370, 668 P.2d at 235. Accordingly, we held that an employee’s failure to assert such right does not constitute waiver. Hoenhe, 205 Mont. at 370, 668 P.2d at 235; cf. Rosebud County v. Roan (1981), 192 Mont. 252, 259, 627 P.2d 1222, 1225 (concluding that an employer’s liability for unpaid overtime compensation cannot be made contingent upon the employee filing an overtime claim prior to the end of employment). ¶25 Today, we reaffirm the Hoenhe decision. A claimant may not, of his or her own accord, contractually bargain away the statutory right to overtime compensation. The laws of Montana that en sure overtime compensation have been established for public benefit, and in the absence of a specific statutory exemption, may not be compromised by private agreement. Section 1-3-204, MCA; cf. State ex rel. Neiss v. District Court (1973), 162 Mont. 324, 328, 511 P.2d 979, 981 (holding that, because minimum wage provisions exist for the benefit of the public as a whole, a claimant may not contractually bargain away the statutory right to a minimum wage). We hold that Lewis cannot be estopped from bringing his wage claim as a result of a failure to notify his employer, prior to bringing his claim, that he was entitled to unpaid overtime compensation. To the extent that the language in Celmer suggests otherwise, it is overruled. Issue 2 ¶26 Did the District Court err when it upheld the Department’s use of a fixed salary for fluctuating hours method for purposes of computing Lewis’ unpaid overtime wages? ¶27 Having decided that Lewis’ claim for unpaid overtime compensation was properly before the court, we must now turn to the question of the appropriate method for determining the unpaid overtime wages owed Lewis by B&B. Aside from certain statutory exemptions inapplicable in this case, see §§ 39-3-405(2), (3) and 39-3-406, MCA, employers in Montana are required to compensate any employee that works in excess of 40 hours per week at an overtime “rate of not less than VÁ times the hourly wage rate at which he [or she] is employed.” Section 39-3-405(1), MCA. ¶28 Lewis contends that the District Court erred in upholding the Department’s use of the fluctuating workweek method, and that this error resulted in Lewis’ unpaid overtime compensation being improperly computed. B&B counters that the fluctuating workweek method was properly applied because of a clear understanding between Lewis and B&B that this was the agreed-upon method of salaried compensation. B&B further asserts that Lewis admitted at trial that the Department’s computation of unpaid overtime according to the fluctuating workweek method was correct, and that Lewis should therefore be bound by this judicial admission on appeal. ¶29 After a thorough review of the administrative record, we conclude that the District Court erred in upholding the Department’s use of the fluctuating workweek method. Primarily, the District Court based its conclusion that the Department properly applied the fluctuating workweek method upon Lewis’ testimony in the administrative proceeding, which suggested that “he understood that when his hours went up or down, his paycheck remained the same.” We do not agree that an after-the-fact acknowledgment by Lewis is sufficient to support the application of the fluctuating workweek method. Nor do we agree with the court that the course of conduct between the parties, such as Lewis’ “acceptance of regular pay checks over his entire employment,” is sufficient to support the application of the fluctuating workweek method. ¶30 The “[flixed salary for fluctuating hours” method is governed by Rule 24.16.2512(2)(e)(i), ARM, which permits an employee to be paid on a fixed salary basis for hours of work that may fluctuate from week to week. In order to qualify under Montana law for this type of salaried compensation, however, there must be a clear mutual understanding [between employer and employee].. . that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period.... Rule 24.16.2512(2)(e)(i), ARM (emphasis added). In particular, “unless the employee clearly understands that the salary covers whatever hours the job may demand in a particular workweek,” the fluctuating hours method “may not be used.” Rule 24.16.2512(2)(e)(iii), ARM (emphasis added). ¶31 In Craver v. Waste Mgt. Partners of Bozeman (1994), 265 Mont. 37, 874 P.2d 1, this Court further emphasized that Rule 24.16.2512(2)(e), ARM, only “permits an employer to use the salaried, fluctuating pay scheme as long as the employer and employee mutually agree to the scheme.” Craver, 265 Mont. at 43, 874 P.2d at 4 (emphasis added). Conversely, where an employer and employee do not “mutually agree” to a fluctuating hours salary, “[t]his fact alone is fatal to any allegation that [the employer’s] pay scheme fit the requirements of § 24.16.2512[(2)](e), ARM.” Craver, 265 Mont. at 43, 874 P.2d at 4. In Craver, there was “no express written or oral consent” by the employees to the calculation of salaries by the employer according to the fluctuating workweek method. Craver, 265 Mont. at 40, 874 P.2d at 2-3. Consequently, we held that the trial court did not err in finding that the employer had violated Montana’s wage laws in calculating wages due on the basis of a salaried, fluctuating hours pay scheme. Craver, 265 Mont. at 43, 874 P.2d at 4. ¶32 In this case, the record is void of a clear, mutual understanding between Lewis and B&B that would support a proper application of the fluctuating workweek method. There was no express, written employment contract between Lewis and B&B. Lewis was employed by Tihista on the basis of an oral — albeit confused — understanding of his employment conditions. Lewis testified that he initially thought he was receiving a “monthly salary” plus “commission” from Tihista, based upon the peculiar, tripartite monthly payment scheme previously discussed. Lewis further testified that, when B&B later switched to bi-weekly paychecks, he understood that his monthly wage was based upon an “hourly” rate, even though his monthly pay never fluctuated according to hours actually worked. ¶33 Tihista, in turn, testified that all of his employees worked set hourly schedules and that Lewis “was paid hourly from the day he started.” He testified that he orally agreed with Lewis at the outset of employment that Lewis would be paid a monthly wage, predicated upon a regular hourly rate of minimum wage plus $1.00 for the first forty hours per week, and an overtime rate of IV2 times the regular hourly rate for the sixteen hours of required overtime per month. Tihista further testified that he never docked the pay of any of his employees for days missed from work, or for weeks where their hours fell below the amount that their monthly wages were based upon, because he wanted them “to be able to make more money [at B&B] than at a comparable job.” B&B’s accountant, Jim Koontz, acknowledged in testimony that B&B had represented to the Department, in responding to Lewis’ wage claim, that Lewis was an hourly “wage employee.” ¶34 Like Craver, the simple fact that there was no mutual understanding between Lewis and B&B regarding a fixed salary for fluctuating hours is fatal to the District Court’s decision. Contrary to the court’s implied holding that a tacit understanding by an employee is sufficient to support application of the fluctuating workweek method, Montana law requires a clear, mutual understanding between employer and employee before this particular form of salaried compensation may be applied. That Lewis’ monthly wage remained the same irrespective of the actual number of hours worked appears to have been more a function of generosity on Tihista’s part, than the result of a mutual understanding between Lewis and B&B that Lewis was being paid a fixed salary for fluctuating hours. The record suggests that if there was any oral understanding between Lewis and Tihista, it was that Lewis was to be compensated as an “hourly’ rate employee. We hold that the court erred in upholding the Department’s use of the fixed salary for fluctuating hours method for purposes of computing Lewis’ unpaid overtime compensation. ¶35 Since we determine that the fluctuating workweek method was incorrectly applied in this case, we need not address Lewis’ additional arguments as to how his unpaid overtime compensation was incorrectly computed pursuant to the fluctuating workweek method. Nor need we address B&B’s contention that Lewis should be bound on appeal by his judicial admission below that, if the fluctuating workweek method applied, his unpaid overtime compensation was correctly computed by the Department under that method. Pursuant to our conclusion that the fluctuating workweek method was misapplied, we further hold that Lewis’ unpaid overtime compensation was incorrectly computed. We remand to the District Court for remand to the Department, with instructions that the Department shall recompute Lewis’ unpaid overtime wages based on this Court’s conclusion that he was an hourly employee. Issue 3 ¶36 Did the District Court err in refusing to allow B&B credit for alleged lunch breaks taken by Lewis over the course of his employment? ¶37 B&B asserts that the District Court erred in upholding the Department’s determination that B&B was not entitled to a credit for lunch breaks allegedly taken by Lewis. The Department found that B&B failed to adduce sufficient evidence that Lewis consistently took a “bona fide meal period” of 30 minutes or more per workday. The District Court, while noting that there was some evidence in the record that Lewis did take lunch breaks, concluded that the Department’s determination was nevertheless supported by substantial credible evidence in the record. We agree with the District Court’s conclusion. ¶38 Rule 24.16.1006, ARM, governs “rest and meal periods,” for which an employer may be given credit in calculating unpaid overtime compensation: Bona fide meal periods are not worktime These are rest periods. The employee must be completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period. A shorter period may be long enough under special conditions. The employee is not relieved if he [or she] is required to perform any duties, whether active or inactive while eating. [Emphasis added.] Section 24.16.1006(2)(a), ARM. Furthermore, the rule does not require that an employee be permitted to leave the premises in order to qualify as a bona fide meal period, provided that the employee “is otherwise completely freed from duties during the meal period.” Section 24.16.1006(2)(b), ARM (emphasis added). ¶39 B&B alleges two errors: one, that the Department’s factual finding that Lewis never took a bona fide lunch break was clearly erroneous because there was credible evidence that Lewis did frequently take a lunch break of thirty to forty-five minutes; and two, that the Department’s conclusion on the lunch break issue was a legal error to the extent that it implies a duty on the part of an employer “to see that a worker not perform any work [during lunch] for which he [or she] doesn’t wish to provide compensation.” ¶40 With respect to B&B’s alleged factual error, we emphasize that our standard of review of an administrative agency’s findings of fact is — like that of the District Court — deferential. We may not substitute our judgment for that of the agency’s when it comes to the weight of the evidence on questions of fact. See § 2-4-704(2), MCA. It is true that Lewis’ witness, Carol Iontosca, provided a statement that Lewis did regularly take lunch breaks of thirty to forty-five minutes. However, in its order, the District Court noted that “[t]he hearing officer... was either unaware of this statement or did not rely upon it.” As to the other witness testimony regarding lunch breaks allegedly taken by Lewis, while the Department was “not convinced the claimant never stopped for even five minutes,” it concluded that B&B produced insufficient “evidence to suggest [that Lewis regularly] stopped for any appreciable length of time, such as an hour or even a half an hour, except on occasions when out on a delivery with another worker.” After reviewing the administrative record, we agree with the District Court that the Department’s factual findings on the lunch break issue were supported by substantial credible evidence. ¶41 Concerning B&B’s alleged legal error, we are similarly unconvinced. As previously stated, we review an administrative agency’s decision to determine if its conclusions of law are correct. Steer, Inc., 245 Mont. at 474, 803 P.2d at 603. B&B contends that the Department’s citation of Garsjo v. Department of Labor and Indus. (1977), 172 Mont. 182, 562 P.2d 473, in support of its proposition that B&B failed in its “responsibility” to ensure that Lewis not perform any work during lunch, is legal error. B&B is correct in recognizing that Garsjo did not specifically address the issue of lunch breaks, but rather, principally concerned hourly record keeping by an employer. While is unclear from the Department’s decision what specific notion the Garsjo decision was cited as supporting, we think it safe to say that the Department was referring to the simple proposition that an employer has a duty under Montana’s wage laws to record the hours worked by its employees. See Garsjo, 172 Mont. at 188-89, 562 P.2d at 476. ¶42 Where an employer fails in that duty, as B&B has failed in this case, an employee is allowed to validate its claim of improper compensation by introducing “ ‘sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.’ ” Wage Claim of Holbeck v. Stevi-West, Inc. (1989), 240 Mont. 121, 126, 783 P.2d 391, 394-95, quoting Garsjo, 172 Mont. at 189, 562 P.2d at 476. Here, Lewis produced sufficient evidence to show that he generally did not take a lunch break of any appreciable length of time, and that he more often than not continued to work while eating. Therefore, the Department’s legal determination, upheld by the District Court, appears to have been based in part upon B&B’s failure to record the hours that Lewis actually worked. This record keeping shortcoming, in violation of Montana’s minimum wage and overtime laws, resulted in a failure of proof for B&B with regards to the lunch break issue. ¶43 Moreover, this Court will defer to an agency’s legal determination where, as here, that agency is interpreting a statute that it has been authorized by the legislature to administer. Waste Mgt. Partners of Bozeman v. Department of Pub. Serv. (1997), 284 Mont. 245, 249, 944 P.2d 210, 213 (citing Norfolk Holdings v. Department of Revenue (1991), 249 Mont. 40, 44, 813 P.2d 460, 462). The Department has been delegated rulemaking authority by the Montana Legislature to carry out the purposes of Montana’s minimum wage and overtime laws. See § 39-3-403, MCA. Here, the applicable rule specifically states that an employer may still qualify for a bona fide meal period with respect to an employee, like Lewis, who remains on the work premises during lunch, if that employee “is otherwise completely freed from duties during the meal period.” Rule 24.16.1006(2)(b), ARM. Given the circumstances of this case, we cannot say that the Department incorrectly interpreted Rule 24.16.1006, ARM, in concluding that B&B had a responsibility to monitor Lewis during lunch periods to ensure that he was not working. ¶44 Here, even though the Department found that B&B did not specifically require work of Lewis during lunch, it is apparent that Lewis was not completely freed from his duties at the pawnshop or otherwise expressly directed to take a lunch break by B&B. Tihista testified that B&B had no “set rule” requiring employees to take lunch breaks. Tihista further acknowledged that he was aware that Lewis occasionally worked while eating. As long as Tihista permitted Lewis to work while eating lunch, Lewis must be properly compensated for wages due, even if this includes overtime compensation for working through lunch breaks. Cf. Holbeck, 240 Mont. at 126, 783 P.2d at 395 (rejecting claim of bowling alley employer that it should not have to pay overtime compensation for time that employee had spent bowling while on duty, because employer was aware of and did not prohibit this activity). Had B&B simply utilized a time-clock from the beginning, and required its employees to punch out for lunch periods, this dispute over alleged lunch breaks by Lewis would likely not even be at issue. ¶45 With respect to the lunch break issue, we hold that the Department’s factual findings are not clearly erroneous, and that its legal conclusions are correct. Accordingly, we affirm the District Court’s conclusion that B&B is not entitled to credit for alleged lunch breaks taken by Lewis over the course of his employment. ¶46 In conclusion, we hold that the District Court erred as a matter of law in holding that Lewis was estopped from bringing his wage claim because of a failure to notify his employer, B&B, prior to bringing his claim, that he was entitled to unpaid overtime compensation. In addition, we hold that the District Court erred as a matter of law in upholding the Department’s use of the fluctuating workweek method for purposes of computing Lewis’ unpaid overtime compensation. We reverse and remand to the District Court for remand to the Department, with directions that the Department shall recompute the overtime wages due Lewis based on our conclusion that he was employed at an hourly rate. 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On October 9,1997, it was ordered, adjudged and decreed that for the offense of Mitigated Deliberate Homicide, a felony, the defendant is sentenced to Montana State Prison for forty (40) years with ten (10) years suspended upon conditions as set forth in the October 9,1997 judgment. The defendant is designated ineligible for parole. The suspended portion of defendant’s sentence has conditions which are stated in the October 9,1997 judgment. The defendant is granted 59 days’ credit for time served prior to sentencing (September 24,1996 - November 22,1996). 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 was represented by Attorney Ed Sheehy. 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 this case be remanded to Judge Sherlock, 1st Judicial District, Lewis & Clark County, for inclusion in the judgement stating reasons why the defendant be declared ineligi ble for parole or participation in a supervised release program pursuant to 46-18-202 (2). Done in open Court this 20th day of February, 1998. DATED this 12th day of March, 1998. Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton. The Sentence Review Board wishes to thank Attorney Ed Sheehy for representing Curtis Christianson in this matter.
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MR. JUSTICE McDONOUGH delivered the Opinion of the Court. This is an appeal from an action for breach of a contract to buy a business. Defendant Richard A. Wortman appeals from the judgment of the District Court of the Eighteenth Judicial District, Gallatin County, finding him in breach of the contract and awarding the balance of the purchase price, plus interest, to plaintiff Gar L. Amundson. We affirm on the substantive issues regarding the breach, but remand for further proceedings. Wortman presents three issues for review: 1. Did the District Court err in failing to find the existence of constructive fraud? 2. Did the District Court err in equating “customer lists” with “mailing lists”? 3. Did the District Court err in awarding attorney’s fees without holding an evidentiary hearing? Amundson was the proprietor of a business called Information Processing in Bozeman, Montana. Information Processing produced a product known as the Direct School Marketing Program, a series of computer-generated booklets designed to list the names, addresses and telephone numbers of school officials, faculty and coaches, together with dates and locations of various conferences and student events taking place during a given season or school year. The booklets were sold to businesses — chiefly in the lodging and restaurant industries — interested in making contact with the listed officials in order to obtain their patronage during a conference or event. Information Processing also offered a follow-up service, which involved putting its subscribers in touch with school officials by mail. Amundson set up the business himself, which included writing the computer program that compiled the booklet. In 1987, Wortman approached Amundson with a proposal to buy the Direct School Marketing Program. While negotiating terms of the sale, Amundson made various representations to Wortman concerning subjects such as projected earnings from the program, the costs involved and opportunities for new business. Pursuant to these negotiations, Wortman drew up a contract in longhand. Amundson read the contract and prepared a typed version. The contract was executed on April 7, 1987. The price for the business was $18,000, to be paid with a $2,000 down payment and two annual installments of $8,000. Among other provisions, the contract called for Amundson to deliver to Wortman the computer equipment, software and other items listed in an appendix to the contract, as well as the copyright and logo for the Direct School Marketing Program and all documents related to its course of business. Amundson was also to provide Wortman with “whatever assistance is deemed necessary” in the preparation, marketing and distribution of the Fall 1987 edition of the program. The contract called for Wortman to pursue the business in a diligent, businessman-like manner, and pay all expenses of doing business. Wortman began operating the business, but was dissatisfied with the results of his efforts. He sought to rescind the contract and return the business, but Amundson did not agree to the rescission. Wortman did not pay his first installment. On September 17, 1987, Amundson made a written demand through his attorney for payment of the installment. When Wortman did not do so, Amundson filed this action on October 21,1987. The complaint sought payment of “all monies owing now or in the future” under the contract, or return of the business and damages for waste due to Wortman’s actions in running it. Wortman raised an affirmative defense, alleging that Amundson had made several misrepresentations during negotiation of the sale that amounted to constructive fraud and entitled him to rescission. The case was tried before the District Court, sitting without a jury. On August 10, 1988, the court issued its Findings of Fact and Conclusions of Law with Memorandum, in which Wortman was adjudged to be in breach of the contract. Judgment was entered awarding Amundson the balance of the contract price plus interest, together with attorney’s fees and costs, and Amundson’s attorney filed a Notice of Judgment. This appeal followed. I. On appeal, Wortman challenges the District Court’s Findings of Fact. When reviewing the findings of fact in a civil action tried by a district court without a jury, this Court will not substitute its judgment for that of the trier of fact. Rather, our review is confined to determining whether the findings of fact are clearly erroneous. Although the evidence may conflict, the court’s findings will be presumed correct if supported by substantial evidence. Meridian Minerals Co. v. Nicor Minerals, Inc. (Mont. 1987), [228 Mont. 274,] 742 P.2d 456, 461, 44 St.Rep. 1516, 1523-24. The District Court’s Findings of Fact relevant to Wortman’s appeal read as follows: “12. That the Montana Supreme Court discusses constructive fraud in the case of Moschelle v. Hulse, [190 Mont. 532,] 622 P.2d 155 (1980). The Court spoke in terms of ‘a pattern of repeated concealments of the true state of affairs’ and ‘withholding relevant facts,’ all of which created a false impression to the purchaser. “13. That the Court does not find constructive fraud by the seller to the buyer. “14. That the evidence did not show that past profits of the Plaintiff were falsely stated, that he made repeated concealments in promoting the business sale, that an intentional lack of full disclosure created a false impression, or that there was deliberate misleading of the facts which crossed the threshold of ‘puffing’ and entered the realm of constructive fraud. “15. That the Court finds a customer list was provided, but any mailing list undergoes a constant rollover, and use of such a list in a business requires aggressive and continual updating. “16. That a sales person leaving the employment upon the sale of a business is not reason to invoke constructive fraud. “17. That the Contract was very vague regarding what ‘assistance’ was to be provided by the seller, and compelling evidence has not been presented to this Court justifying a lack of assistance to the point of constructive fraud.” Wortman argues that the court’s Finding of Fact No. 13 was in error and contrary to the evidence in this case. Wortman also argues that the court confused “customer lists” with “mailing lists”, which rendered its Finding of Fact No. 15 erroneous. Constructive fraud is defined at § 28-2-406, MCA, as “any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him ...” In cases such as the one at bar, the “duty” involved is the duty to disclose material facts to the purchaser, a breach of which is an essential element of constructive fraud. Mends v. Dykstra (1981), 195 Mont. 440, 637 P.2d 502. The Mends case addressed the issue of when such a duty arises. While the defendants in Mends asserted that no duty arose absent a fiduciary or confidential relationship, it was pointed out that this Court had found “special circumstances” surrounding some transactions which give rise to the duty to disclose. One such set of circumstances was the “pattern of repeated concealments” found in the Moschelle case cited by Wortman in support of his position and included in the District Court’s Findings of Fact quoted above. Wortman argues that Amundson repeatedly concealed the true state of aifairs concerning the business. According to Wortman, Amundson failed or refused to provide business records detailing the financial history of the business and did not disclose important details concerning its current status. Wortman thus asserts that his negotiations with Amundson created a false impression about the desirability of purchasing the Direct School Marketing Program. We disagree. The business records Wortman complains of are ledgers and tax records for the years preceding the purchase. He argues that he was unable to gauge the true performance of the business without them, and was forced to rely on representations Amundson made in income projections prepared during their negotiations. Wortman also argues that the projections presented an inflated notion of the profit that could be made selling booklets. Both sides introduced income projections into evidence. According to testimony by Amundson, as many as five or six such projections were prepared for various possible approaches Wortman might take in operating the business. Amundson also testified that the figures for such things as materials costs, labor and net profit per booklet were based on the past performance of the business. The projections introduced at trial as Wortman’s Exhibit “A” include a statement of annual net profit for the years Amundson ran the business, which Amundson testified he had taken from the ledgers at issue. The projections state net profit forecasts that closely approximate the actual figures from past operation, although some projected profits are actually lower than past performance. Amundson also testified that Wortman never requested tax records during negotiations. Wortman complains that Amundson also concealed facts about the status of the business that worked to Wortman’s detriment. After the contract had been executed, Amundson and Wortman met with Amundson’s salesman, Tim Barrett, in Butte to go over Barrett’s role in the business. At this meeting, Barrett informed Wortman that he would be quitting his job to pursue other business interests. Wortman alleges that Amundson knew this before the meeting and concealed it, leading Wortman to believe that he was buying a business employing an active salesman. The testimony cited by Wortman on this point bears examination. Barrett testified that he did in fact tell Amundson of his decision to quit prior to the meeting. However, Barrett said, “I believe I told Mr. Amundson the day he called me and he said he had sold the business . . . .” This testimony indicates that Amundson did not know of Barrett’s departure until after the sale was consummated. He therefore could not have concealed it to Wortman’s detriment in deciding on the purchase. Furthermore, Wortman himself testified that the presence or absence of a hired salesman was not crucial to his plan for operating the business. Wortman also complained that Amundson did not disclose the “considerable ill will” he had generated among his customers, or their complaints that the booklets were ineffective. However, Wort-man testified that the sluggish sales he experienced could have been the result of his own shortcomings as a salesman. Wortman’s Exhibit “I”, a file folder containing returned sales letters introduced in support of his contention of customer animosity does not lend support to his claim. The file contains 12 letters sent out by Wortman and later returned. On one of the envelopes is written “not interested,” but the other 11 were returned because the addressee had moved. The only letter actually written by a customer states that the booklet previously purchased “helped a great deal” and asks that the customer be retained on Wortman’s mailing list. When testifying about the letters, Wortman admitted that the drop in sales could have been attributed to other causes, such as a generally slow business climate. Still another of Wortman’s claims was that Amundson failed to supply assistance with business operations that he promised during negotiations and in the contract itself. In response, Amundson testified that he had volunteered assistance, and supplied a record of his activities. While the examples above do not address every claimed concealment, they are sufficient to illustrate that evidence in this case supports the District Court’s conclusion that constructive fraud was not present. We have found no “pattern of repeated concealments” in the record, and affirm the District Court on this issue. Wortman’s second challenge concerns “mailing lists” versus “customer lists”. One of the items purchased by Wortman as part of the business was a “customer list” compiled over the course of the Direct School Marketing Program’s existence. Wortman’s brief to this Court makes much of the definition of “customer” as one who repeatedly makes purchases or has business dealings with a tradesman. According to Wortman, the list supplied was a misrepresentation, because he was able to make only approximately 80 sales to over 300 listed “customers”. At trial, Amundson testified as to how the list was compiled. According to Amundson, businesses were placed on the list when they purchased a booklet. Entries were also made for each purchaser indicating such things as method of payment. The names on the list were thus “customers” in that each business had made at least one purchase. While nearly every business strives for repeat customers, there is no guarantee that a customer with an established record of repeated purchases will not take his business elsewhere or simply stop purchasing for any number of reasons. We also see nothing in the record to indicate that Amundson made such a guarantee to Wortman. The manner in which the list was referred to was thus irrelevant, and we affirm the court on this issue. II. Wortman challenges the District Court’s award of attorney’s fees, arguing that it did so on the basis of the affidavit of Amundson’s counsel as to the amount of such fees, without holding an evidentiary hearing. Wortman is correct in that attorney’s fees cannot be awarded solely on the basis of an attorney’s affidavit. An evidentiary hearing is required. Stark v. Borner (Mont. 1988), [234 Mont. 294,] 762 P.2d 857, 860, 45 St.Rep. 1885, 1888. Wortman’s argument has placed this Court in an unusual situation. When the District Court entered its Findings of Fact and Conclusions of Law with Memorandum, counsel for Amundson was instructed to draft a judgment in conformity with the court’s ruling. Part of that ruling, and consequently part of the “Judgment” signed and filed by the court, was an award of “reasonable attorney’s fees and costs, which shall be determined at a separate hearing.” Shortly after the “Judgment” was filed and noticed, but before the time for the hearing, counsel for Wortman filed his Notice of Appeal. The problem arises because counsel for Wortman filed his Notice of Appeal prematurely. A judgment that awards costs and attorney’s fees to be determined at a later hearing is not final and appealable until those costs and fees are determined. Boles v. Ler (1984), 213 Mont. 266, 692 P.2d 1. However, neither party raised this issue in their briefs, and it only became apparent upon our review of the record, after all briefs had been filed and the record deposited with this Court. Therefore, in the interests of judicial economy, and for the purposes of this case only, we affirm the decision of the District Court on the issues discussed above, and remand the cause to the court for proper determination of costs and attorney’s fees, both at the District Court level and upon appeal. Affirmed and remanded. MR. JUSTICES HUNT, GULBRANDSON, SHEEHY and WEBER concur.
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MR. JUSTICE McDONOUGH delivered the Opinion.of the Court. This appeal involves an oil and gas lease on school trust land within the Coal Creek State Forest, which was acquired from the State by the Farmers Union Central Exchange (Cenex). School trust lands are administered by the Department of State Lands (Depart ment), which issued the lease to Cenex. Pursuant to an Annual Operating Plan approved by the Department, Cenex proposes to drill an exploratory well on its leased tract. North Fork Preservation Association (North Fork) has challenged the Department’s approval of Cenex’s operating plan, alleging that the Department failed to prepare an environmental impact statement on the proposed well as required by law. North Fork filed its complaint in the District Court of the Eleventh Judicial District, Flathead County, and obtained a summary judgment in its favor. The judgment set aside the Department’s approval of Cenex’s operating plan; issued a writ of mandate directing the Department to prepare an environmental impact statement; and awarded costs, fees and a small money judgment. We reverse, and remand the case to the District Court for entry of judgment in favor of the Department. We hold that the District Court incorrectly applied the “clearly erroneous” standard for reviewing the Department’s decision and misinterpreted applicable statutory and case law. We further hold that the Department’s decision was proper under the correct, “arbitrary, capricious or unlawful” standard of review, and that mandamus was not a proper remedy in this case, as mandamus is not available to compel a discretionary act. The parties have stated a number of issues, some of which overlap: As Stated by the Department: 1. Whether the Department must prepare an environmental impact statement on the drilling of a single exploratory well on school trust land which had been previously clear-cut of timber and is managed under the multiple use concept. 2. Whether the Department is required to prepare a site-specific environmental impact statement concerning full-field oil and gas development. 3. Whether mandamus is an inappropriate remedy to enforce the provisions of the Montana Environmental Policy Act. 4. Whether North Fork Preservation Association sustained its burden of proof. As Stated by Cenex: 1. Did the District Court apply the wrong standard of review in reviewing the State Lands’ decision that approval of Cenex’s plan to drill one exploratory well was not a major action of state government significantly affecting the quality of the human environment? 2. Whether State Lands’ decision that an environmental impact statement was not required was arbitrary and capricious. 3. Whether the 1984 preliminary environmental review was sufficient, as a matter of law, without considering the “cumulative impacts” of oil and gas development and production. 4. Whether a writ of mandamus will lie to compel the preparation of an environmental impact statement. As Stated by North Fork: 1. Did the District Court apply the wrong standard of review to State Lands’ procedural decision to forego an environmental impact statement? 2. Whether the Cenex operating plan “may significantly affect environmental attributes recognized as being endangered, fragile, or in severely short supply.” ARM 26.2.603(3)(a). 3. Piecemealing: At what stage in the oil and gas lease process is an environmental impact statement on development legally required? 4. Is there a separate ground supporting the District Court’s decision, which State Lands and Cenex did not raise on appeal? 5. Whether the 1984 preliminary environmental review was legally sufficient, particularly in its evaluation of cumulative impacts. 6. Whether a writ of mandate will lie to compel preparation of an environmental impact .statement. In April of 1975, the Department received applications for oil and gas leases on 14 tracts of school trust land in the Coal Creek State Forest. The Department deferred action on possible leases until an environmental impact statement (EIS) could be prepared. Coal Creek State Forest is bordered on three sides by National Forest Service land, and on the fourth side by the North Fork of the Flathead River. The river is part of the National Wild and Scenic Rivers System, as well as the western boundary of Glacier National Park. The surrounding National Forest Service land was also the subject of oil and gas development proposals at about the same time. In 1976, the National Forest Service issued a draft EIS concerning proposed leases on land in its charge. The Department also issued an EIS in 1976. The introduction to the Department’s EIS stated that the National Forest Service EIS dealt with the impacts of oil and gas leasing in the larger area surrounding Coal Creek, and the Department’s EIS would therefore focus only on the state lands involved and should be considered “an extension of that made by the federal government.” The Department’s EIS permitted leasing of all 14 Coal Creek tracts. However, at a meeting of the State Board of Land Commissioners held in March of 1976, all of the bids received were rejected. The National Forest Service subsequently undertook a new environmental analysis of the area, and abandoned its 1976 draft EIS. In 1982, the Department received new applications for oil and gas leases covering a larger portion of the Coal Creek area. The Department prepared a preliminary environmental review (PER) for the purpose of determining whether issuance of oil and gas leases would be an action by state government “significantly affecting the quality of the human environment,” therefore requiring an EIS under § 75-1-201, MCA. The PER was issued in 1983, and concluded that no such significant effect would result if certain protective stipulations were included in any leases granted. The Department then offered leases in Coal Creek State Forest at public auction. Cenex purchased leases to 17 tracts. Each lease contained 16 environmentally protective stipulations. Under these stipulations, Cenex was required to submit an annual operating plan to the Department detailing all activities to be carried out on the leased acreage during the coming year. No activity could be undertaken until written approval of each year’s plan was received from the Department. Cenex’s first annual operating plan was submitted in 1984. The plan proposed drilling an exploratory well on one of the leased tracts located approximately three miles south of the town of Polebridge and one mile west of Glacier Park. The proposed well site was a clear-cut left from previous logging under lease from the Department. Cenex planned to make improvements to an existing logging road in order to transport necessary drilling equipment and supplies. The Department delayed approval of the plan while it completed a site-specific PER, held two public hearings and received comments on the PER during a 30-day review period. After reviewing the comments, the Department issued a supplement to the PER. The Department then approved the plan, subject to 31 additional protective stipulations. In February of 1985, North Fork filed this action. The complaint sought an order setting aside the Department’s approval of the Cenex operating plan and the Cenex lease, and a writ of mandate directing the Department to prepare an EIS on the cumulative effects of oil and gas development in the Coal Creek area. Cenex successfully petitioned to intervene as a defendant in the case. The De partment and Cenex filed a motion for summary judgment, as did North Fork. In 1988, the District Court issued a Memorandum and Order granting North Fork’s motion, and subsequently entered judgment in North Fork’s favor. This appeal followed. The many issues taken up by the parties have rendered their arguments difficult to follow. North Fork has gone so far as to attempt a “chart of corresponding issue numbers” in its brief to this Court. A careful reading of the issues and arguments offered, as well as the record from below, shows that the parties are posing three core questions: 1. Did the District Court apply the proper standard of review? 2. Did the Department proceed properly in approving Cenex’s annual operating plan? 3. Is mandamus an appropriate remedy to enforce provisions of the Montana Environmental Policy Act? We will proceed with our review by addressing these three questions. I. The District Court looked to the Montana Administrative Procedure Act (MAPA) for its standard of review. The court applied the standard of review found in § 2-4-704(2)(e), MCA: “(2) . . . The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: “(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” On appeal, the Department and Cenex argue that the “clearly erroneous” standard was improper in this case. Cenex specifically argues that § 2-4-704, MCA, was inapplicable, because the section deals with judicial review of “contested cases”, and this was not a contested case. A “contested case” is defined at § 2-4-102(4), MCA, as a proceeding before an agency where a “determination of legal rights, duties, or privileges” of a party is required to be made after an opportunity for hearing. In contrast to cases such as State ex rel. Montana Wilderness Association v. Board of Natural Resources and Conservation (1982), 200 Mont. 11, 648 P.2d 734, no hearing was requested or held before the Department in this case. North Fork did not initiate this action until after the Department had approved Cenex’s operating plan. There was no “evidentiary record” against which to measure the Department’s decision and determine whether it was clearly erroneous. Cenex is therefore correct in asserting that § 2-4-704, MCA, does not apply in this case. Both Cenex and the Department argue that the District Court should have employed an “arbitrary and capricious” standard. The Department asserts that decisions by administrative agencies are given deference by reviewing courts due to the agencies’ access to superior expertise, and are not overturned unless arbitrary or capricious. The Department notes that in Wilderness Association, 648 P.2d at 740, this Court cited deference to agency expertise as one of three important factors in selecting a standard of review in a contested case. Cenex notes that the arbitrary and capricious standard was used prior to the enactment of MAPA, and would logically apply in this case. Our decision in Langen v. Badlands Cooperative State Grazing District (1951), 125 Mont. 302, 308, 234 P.2d 467, 470, which is cited by Cenex, is relevant to both points: “The review by the district court is only for the purpose of determining the legal rights of the parties involved. This is so because of the division of governmental powers under the Constitution, neither the district court nor the Supreme Court may substitute their discretion for the discretion reposed in boards and commissions by the legislative acts, [citations] “The appeal from the commission to the district court is for the purpose merely of determining whether upon the evidence and the law the action of the commission is based upon an error of law, or is wholly unsupported by the evidence, or clearly arbitrary or capricious. On such review courts will only inquire insofar as to ascertain if the board or commission has stayed within the statutory bounds and has not acted arbitrarily, capriciously or unlawfully, [citations]” Both sides agree that because the Montana Environmental Policy Act (MEPA) is modeled after its federal counterpart (NEPA), this Court can look to federal decisions under NEPA as an aid to addressing cases under MEPA. See Kadillak v. Anaconda Co. (1979), 184 Mont. 127, 602 P.2d 147. In fact, North Fork argues that we should adopt the “reasonableness” standard utilized by the U.S. Court of Appeals for the Ninth Circuit in cases cited in North Fork’s brief. While looking to federal decisions is not always conclusive, cases decided on analogous facts can shed light on a given issue. The United States Supreme Court recently took up two companion cases involving the issues at bar. In one of those cases, Marsh v. Oregon Natural Resources Council _U.S. _, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989), the Supreme Court addressed the issue of the proper standard for review of an agency decision not to amend a previously-issued EIS. The argument before the Court was that newly-discovered information cast doubt on the agency’s previous conclusion that the proposed project would not significantly affect the environment. The agency involved had decided that the information did not raise questions sufficient to require amendment of the EIS. This case presents an analogous question. North Fork alleged several specific shortcomings in the procedure followed by the Department in approving Cenex’s annual operating plan. The thrust of these contentions, when taken together, is that the information gathered by the Department indicated that Cenex’s proposed well would generate a significant impact on the human environment, and an EIS should have been prepared. As in any comparison between federal and Montana law, there is a distinction between Marsh and this case. In Marsh, the federal Administrative Procedure Act was applicable where in this case MAPA judicial review provisions do not apply. However, the federal act offers several possible standards of review. In choosing a standard, the Supreme Court in Marsh specifically rejected the “reasonableness” standard used by the Ninth Circuit Court of Appeals and adopted the “arbitrary and capricious” standard. In explaining its choice, the Court stated: “The question presented for review in this case is a classic example of a factual dispute the resolution of which implicates substantial agency expertise .... Because analysis of the relevant documents ‘requires a high level of technical expertise,’ we must defer to ‘the informed discretion of the responsible federal agencies.’ [citations]” The Department in this case was carrying out its statutorily-imposed fiduciary duty to “secure the largest measure of legitimate and reasonable advantage to the state” in managing school trust lands. Section 77-1-202, MCA. The Department also had to carry out duties imposed by MEPA, pursuant to which it prepared a PER in order to gather information for its decision on whether to prepare an EIS for Cenex’s proposed action. This decision necessarily involved expertise not possessed by courts and is part of a duty assigned to the North Department, not the courts. In light of this, and the cases cited above, we hold that the standard of review to be ap plied by the trial court and this Court is whether the record establishes that the agency acted arbitrarily, capriciously, or unlawfully. II. When applying the above standard of review to this case, it is important to keep in mind which Department action is challenged by North Fork: the approval of Cenex’ Annual Operating Plan, which calls for the drilling of an exploratory well. North Fork has contended, and the District Court has held, that this action should not have been undertaken without prior preparation of an EIS. It is apparent from our review of the record, however, that the arguments of counsel and the District Court’s Memorandum and Order have strayed from the issue of the operating plan to consider policies and activities that are not at issue here. This is a primary reason for our reversal of the District Court’s judgment. A. The Department’s Decision Was Not Unlawful. While the standard of review we have adopted utilizes three terms, it breaks down into two basic parts. One part concerns whether the agency action could be held unlawful, and the other concerns whether it could be held arbitrary or capricious. See Langen, 234 P.2d at 471. We will first address the “unlawful” portion. The Department is both empowered and constrained by a set of statutes and regulations relevant to its actions challenged in this case. One such statute is § 77-1-202, MCA, cited above, which imposes a fiduciary duty on the Department to manage the land at issue to the advantage of the State. The procedures followed by the Department in its dealings with Cenex were governed in part by MEPA (§§ 75-1-101, et seq., MCA) and administrative rules enacted pursuant to MEPA (ARM 26.2.602, et seq. repealed 11/1/89; recodified at ARM 26.2.642, et seq.). North Fork’s complaint in the District Court alleged in large part that the Department failed to carry out its appointed duties under these provisions. In the brief filed in support of its motion for summary judgment, North Fork made three arguments: “1. [The Department’s] decision to forego an EIS at the stage of drilling an oil well was clearly unreasonable and wrong. Conner v. Burford, 605 F.Supp. 107 (D. Mont. 1985) and Kadillak v. Anaconda Co. (1979), 184 Mont. 127, 602 P.2d 147. “2. The case is clearly one where the decision ‘may significantly affect’ endangered species and a fragile environment, requiring an EIS under ARM 26.2.603(3)(a). “3. [The Department] omitted to perform an evaluation of cumulative impacts, in violation of ARM 26.2.604(1)(b) and (c).” Two of these arguments, the first and third, are directly relevant to the “unlawful” portion of our standard of review. The District Court’s Reliance on Conner v. Burford. The District Court agreed with North Fork’s first argument, and relied on Conner v. Burford, supra, to hold the Department’s 1976 EIS, 1983 PER and 1984 PER to be insufficient. At the outset, the court adopted North Fork’s broad view of the development of oil and gas in the Coal Creek area, and concluded that full-field development required the preparation of an EIS. The Department had argued that its 1976 EIS was sufficient for this purpose. The court found, however, that the 1976 EIS was insufficient because it focused only on Coal Creek lease tracts and did not address the overall impacts of such development. Without a valid EIS, the two PER’s became “falling dominos,” their environmentally protective stipulations mere examples of the kind of “piecemeal” approach to environmental review held improper in Conner. We disagree. First, the Department’s 1976 EIS has no relevance to this case. The overall impacts of full-field oil and gas development in the Coal Creek State Forest are not at issue. Section 75-1-201, MCA, (entitled “General Directions — Environmental Impact Statements”) sets out guidelines for “every recommendation or report on proposals for projects.” ARM 26.2.603 (“Determination of Necessity for Environmental Impact Statement”) governs consideration of a “proposed action”. The proposed project/action under consideration in this case is the drilling of one exploratory well on one lease tract. In considering this proposed action, the Department prepared a site-specific PER in 1984, which supplemented a more general PER prepared in 1983. The conclusion reached by the Department was that an EIS was not required for the single Cenex test well. This is the decision under review. Second, while the District Court was correct in asserting that “[i]f found rich in oil and gas the acreage in question would be under tremendous pressure for further exploration and development,” it was premature in concluding that an EIS was required. The court’s conclusion apparently resulted from a misreading of the Conner case. The decision of the U.S. District Court for the District of Montana in Conner, cited by North Fork in its brief below, dealt with the question of when an agency action would “significantly affect” the environment, thus requiring preparation of an EIS. This is the same standard employed in § 75-1-201, MCA, and its attendant regulations. The Federal District Court held that issuance of a lease permitting oil and gas development was “the first stage of a number of successive steps” leading to development, and therefore met the “significantly affect” standard. The court feared that proceeding with a piecemeal environmental review by considering only one step at a time would ignore the cumulative effects of development and risk unforeseen, irreversible impacts. When reviewing the decision, however, the Ninth Circuit Court of Appeals made an important distinction. The appellate court reviewed case law determining that under the “significantly affect” standard, an EIS was always required at the “go/no go” point of oil and gas development. The test derived to pinpoint when the “go/no go” point is reached looks for the proposed action that will entail an “irretrievable commitment of resources”. Some of the leases at issue in Conner had “no surface occupancy” (NSO) clauses. Under these clauses, no activity which would disturb the ground in any way could be undertaken without prior approval from the agency involved. The Ninth Circuit Court held that leases with NSO clauses were not an irretrievable commitment of resources. Nothing could happen under the leases without government approval. The point had not been reached where preparation of an EIS was “automatic.” The court also noted, “We cannot assume that government agencies will not comply with their NEPA obligations in later stages of development.” Conner v. Burford, 836 F.2d 1521 at 1528 (9th Cir. 1988). Cenex will operate under essentially the same type of strictures found in the Conner NSO leases. The lease at issue in this case was executed on a printed “Montana Oil and Gas Lease” form supplemented in blank spaces with information specific to the lease arrangement between the Department and Cenex for this well site. North Fork has made much of the printed language in the initial portion of the lease indicating that Cenex thereby acquires the right to do the following: “. . . mining and operating for oil and gas, and of laying pipelines, building tanks, power stations, and other structures thereon necessary in order to produce, save, care for, dispose of and remove the oil and gas ...” According to North Fork, it is hard to imagine these activities not significantly affecting the human environment of the Coal Creek area. North Fork is correct in that the lease could ultimately empower Cenex to conduct all of the listed activities, and it is easy to imagine these activities having a significant effect on the environment. However, the lease also contains specific environmental stipulations typed into to the lease form under paragraph 26, entitled “Special Provisions”. One of these typed stipulations reads: “If the lessee [Cenex] intends to conduct any activities on the leased premises, it shall submit to the Department of State Lands two copies of an Annual Operating Plan or Amendment to an existing Operating Plan, describing its proposed activities for the coming year. No activities shall occur on the tract until an Annual Operating Plan or Amendments have been approved in writing by the Commissioner of State Lands or his designated representative.” (Emphasis supplied.) It is a fundamental principle of contract law that written or typewritten provisions in a contract take precedence over printed provisions. Hoerner Waldorf Corp. v. Bumstead-Woolford Co. (1972), 158 Mont. 472, 494 P.2d 293. The typed “special provision” therefore takes precedence over the printed authorization in this lease. Cenex can carry out the listed activities only with prior written approval of the Department. The issuance of this lease was thus not an “irretrievable commitment of resources” as the term was used in Conner. The District Court was incorrect in concluding that full development of oil and gas in the Coal Creek State Forest was a matter of successive steps set into irreversible motion by the issuance of the lease. Like the Ninth Circuit in Conner, this Court cannot assume that the Department will not comply with its MEPA obligations if development proceeds beyond this stage. The 1983 PER. The District Court’s misapplication of the Conner decision also tainted its holdings that the 1983 and 1984 PER’s were insufficient. Because the 1984 PER is a “supplement” to the 1983 PER, the court’s holdings on both documents are relevant. The court held the 1983 PER inadequate because it relied on the inclusion of environmentally protective stipulations to support its finding that issuing leases would not significantly affect the human environment. The District Court held this approach insufficient for two reasons: (1) it represented piecemealing prohibited by Conner and (2) it should have been a “programmatic” review as required by ARM 26.2.614. Our discussion of Conner has shown that a lease issued pursuant to the 1983 PER need not be violative of the ruling in Conner, and the lease involved here in fact was not. As to ARM 26.2.614, the court engaged in selective reading of this rule, which has resulted in misinterpretation. The court and North Fork have at several points focused on portions of relevant provisions utilizing the words “shall” or “must” to conclude that the Department failed to carry out mandatory procedures. However, a cursory examination of ARM 26.2.614 reveals that the procedures listed are subject to a very prominent “if”: “(1) If the department is contemplating a series of agency-initiated actions [which] will constitute a major state action significantly affecting the human environment, the department may prepare a programmatic review ...” (Emphasis supplied.) Again, our discussion above shows that the contemplated action at issue in the 1983 PER was the issuance of leases, which the Department determined did not constitute state actions significantly affecting the human environment. That decision was not challenged by North Fork, so no programmatic review was required. The 1984 PER. The District Court adopted North Fork’s third argument in holding the 1984 PER to be insufficient. North Fork asserted that under ARM 26.2.604, an evaluation of the cumulative impacts of the proposed action was mandatory. The District Court found the 1984 PER insufficient because of its failure to address cumulative impacts. The term “cumulative impacts” is defined in ARM 26.2.602(1). The rule states that analysis of cumulative impacts under this definition involves consideration of past and present actions related to the proposed action. The proposed action under consideration in the 1984 PER was the drilling of the test well, the first such well in the Coal Creek area. The only past related action was the issuance of leases to Cenex, which was the subject of the 1983 PER. The 1983 and 1984 PER’s fulfill the requirement of ARM 26.2.604 in that they examine the impacts of issuing leases and drilling a single test well, the only related proposed actions before the Department. The arguments advanced by North Fork and the District Court’s Memorandum attack the 1984 PER for failing to consider the cumulative impacts of related future actions, namely the full-field development of oil and gas. However, ARM 26.2.604 requires consideration of related future actions only when they are under current consideration. As we stated above, full-field development was not a proposed action before the Department. It was not included in Cenex’s Annual Operating Plan, and therefore was not under “current consideration”. In sum, the arguments advanced by North Fork and the rationale provided by the District Court failed to show that the Department acted “unlawfully” in determining that approval of Cenex’ first annual operating plan did not require an EIS. Our review of the record has not uncovered any statute or regulation violated by the Department in its dealings with Cenex thus far. The Department has followed required procedures and included in its PER’s the information required by statute and administrative rules. Nor can the decision on the Cenex test well be analogized to the situation in Conner. Even under the Conner criteria, the Department made its decision to forego an EIS at a point in the process where that decision was still left to the Department’s discretion. We therefore proceed to examine the Department’s decision under the “arbitrary or capricious” portion of our standard of review. B. The Department’s Decision Was Not Arbitrary Or Capricious. North Fork’s second argument in its brief in support of its motion for summary judgment addressed the 1984 PER, and is relevant to this portion of our review. North Fork asserted that by the Department’s own analysis, the approval of the well was an action significantly affecting the human environment. North Fork is critical of the Department’s treatment of the effects the well might have on bald eagles, grizzly bears or gray wolves thought to inhabit or at least frequent the Coal Creek area. North Fork notes that the Department employs no eagle biologist or wolf biologist, and no wildlife biologist is included in the list of PER preparers. However, North Fork’s brief states, “The issue here is not the questionable quality of the [eagle, bear and wolf] biology in the PER. The issue is whether there is a ‘may affect’ situation ...” According to North Fork, such a situation “clearly” exists, and an EIS should have been prepared prior to approval of the Cenex Annual Operating Plan. For each of North Fork’s contentions, it quotes a portion of the 1984 PER discussing possible impacts of the well on that animal. North Fork does not contend that required analyses are missing, nor does it focus on the adequacy of the analyses given. North Fork simply contends that the impacts discussed are evidence themselves that the well may significantly affect these facets of the human environment. Its criticism of the lack of wildlife biologists in the list of preparers appears aimed at showing that the Department did not recognize the import of even the “questionable analysis” found in the PER. According to North Fork, the Department was therefore incorrect in deciding that drilling a test well would not significantly affect the human environment, and its decision ran afoul of the “unreasonable” standard of review. Our analysis will be similar to that employed by North Fork, except for the actual standard of review applied. This Court has not had the opportunity to review an administrative decision under MEPA utilizing the “arbitrary or capricious” standard. In the Marsh case, however, the U.S. Supreme Court stated a method for conducting such a review: “As we observed in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 [91 S.Ct. 814, 823, 28 L.Ed.2d 136] (1971), in making the factual inquiry concerning whether an agency decision was ‘arbitrary or capricious,’ the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.’ This inquiry must ‘be searching and careful,’ but ‘the ultimate standard of review is a narrow one.’ ” Marsh,- U.S. -, 109 S.Ct. at 1861. It is also worth noting that our decisions in cases decided under MAPA (see, e.g., Thornton v. Comm’r of the Dep’t of Labor and Indus. (1981), 190 Mont. 442, 621 P.2d 1062; Wilderness Association, 648 P.2d at 740) have recognized the limited scope of review in administrative cases. We cannot substitute our judgment for that of the Department by determining whether its decision was “correct.” Instead, we must examine the Department’s decision to see whether the information set out in the PER’s was considered, or the decision to forego an EIS was so at odds with that information that it could be characterized as arbitrary or the product of caprice. We will read the 1983 and 1984 PER’s together, because as noted above, the 1984 PER was intended to supplement the 1983 PER. In these documents, the Department had before it analyses of the possible impacts of drilling the test well that raised a number of environmental concerns. There were questions about maintaining the purity of the water in the North Fork of the Flathead River and a nearby glacial lake. There were questions about how the sight of the drilling rig, the noise it produced while working and the smells asso ciated with its presence would affect endangered species such as bald eagles that nested at the glacial lake, grizzly bears that were thought to use the Coal Creek drainage as a travel corridor to find food, and gray wolves which were slowly being reintroduced to the area. There were also questions about how these same sights, sounds and smells would affect activities such as camping, river floating and hiking along the river and in Glacier Park. The 1983 PER consumed 39 pages in addressing these and other questions, while in the 1984 PER the analyses required 75 pages. In the process of preparing the two PER’s, the Department consulted with over 30 departments and organizations, including the Environmental Protection Agency, the Border Grizzly Project and Wolf Ecology Project at the University of Montana School of Forestry, the Rocky Mountain Oil and Gas Association, and Glacier National Park. The Department also utilized over 60 published studies and other references. During public comment on the 1984 PER, the Department received 70 letters from concerned groups and individuals. Clearly, there were many concerns expressed and much information provided. In response to this process, the Department decided to include measures to mitigate the impact of oil and gas activities in the form of stipulations to Cenex’s lease and to the written approval of Cenex’s operating plan. The Department has argued that these stipulations prevented its approval of the operating plan from rising to the level of a state action significantly affecting the human environment. At the federal level, the Ninth Circuit Court of Appeals has held that such “mitigation measures” are to be considered in reviewing a decision to forego an EIS, and if the measures are “significant”, they may justify such a decision under the “unreasonable” standard. Friends of Endangered Species, Inc. v. Jantzen (9th Cir. 1985), 760 F.2d 976, 987. Given the narrower, “arbitrary or capricious” standard being applied in this case, sufficiently significant mitigation measures certainly would justify the Department’s decision. The mitigation measures adopted by the Department have taken the form of a total of 42 protective stipulations, 11 attached to the lease and 31 attached to the approval of the operating plan. They include such measures as forbidding any activity on the lease tract during times of the year important to bald eagle nesting and grizzly bear migration. The drilling rig must be painted a color that will not stand out against the natural background, additional mufflers must be installed on the diesel engines used to power the rig, and the engines must be mounted facing a certain direction to reduce the noise reaching bald eagle nests and Glacier Park. Five stipulations deal with any necessary disturbance of the soil and its replacement. Eight stipulations concern maintaining the quality of the ground water, and include restrictions on the chemical content of drilling fluids and the size of trucks that may be used to haul diesel fuel to the rig. The stipulations also address the workers on the rig, imposing regulations on garbage disposal and forbidding the presence of personal pets, among other measures. We have reviewed the concerns raised by the preparers of the PER’s, as well as those raised by agencies consulted and members of the public. We have also reviewed the mitigation measures imposed by the Department. We conclude that the Department has considered the concerns raised and taken significant steps to address them. We therefore hold that the Department’s decision to approve Cenex’s annual operating plan was not arbitrary, nor was it an exercise of caprice. Having also held that the Department did not act illegally, we therefore uphold the Department’s decision and reverse the District Court on this question. III. One of the remedies afforded by the District Court was a writ of mandate requiring the Department to prepare an EIS. We have held above that an EIS was not required in this case, which makes the issuance of the writ erroneous. We feel compelled to add, however, that mandamus was an inappropriate remedy in this case. As our discussion above has brought out, the Department’s decision to forego an EIS at this stage of development was necessarily an exercise of discretion to which courts must give a measure of deference. In fact, we have previously held that the Department must exercise its discretion in all phases of its management of state lands. “If the ‘large measure of legitimate and reasonable advantage’ from the use of state land is to accrue to the state, then the [Department] must, necessarily, have a large discretionary power. Every facet of the [Department’s] action cannot, and is not, explicitly laid out in the statutes of the State Constitution.” Jeppeson v. State (1983), 205 Mont. 282, 289, 667 P.2d 428, 431 (quoting Thompson v. Babcock (1966), 147 Mont. 46, 409 P.2d 808). We held in Jeppeson that mandamus is not available to compel a discretionary act. We therefore reverse the District Court on this question. We have held that the District Court applied the incorrect standard of review in this case, and that under the correct standard, the Department’s approval of Cenex’s annual operating plan was proper. We have further held that mandamus was not available in this case. We therefore reverse the decision of the District Court, dissolve the writ of mandate issued by the court, and remand this case for entry of judgment in favor of the Department. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON and HON. PETER L. RAPKOCH, District Judge, sitting for MR. JUSTICE SHEEHY concur.
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MR. JUSTICE McDONOUGH delivered the Opinion of the Court. This appeal from the First Judicial District, Lewis and Clark County, concerns the liability of appellants the State of Montana and Ed Argenbright for damages arising from the alleged wrongful discharge of respondent Johnson. Johnson has alleged common-law and statutory wrongful discharge claims against appellants, and has also requested that the District Court declare that portions of the Montana Wrongful Discharge Act, §§ 39-2-901 to -913, MCA, (Act) unconstitutionally limit Johnson’s fundamental right to full legal redress. Johnson moved for summary judgment on the requested declaratory relief. She argued specifically that classifications created under the Act violated equal protection guarantees under Article II, § 4, by denying her, as a member of a class of wrongful discharge claimants, her fundamental right to full legal redress. Pursuant to the motion, the District Court declared the Act unconstitutional citing White v. State (1983), 203 Mont. 363, 661 P.2d 1272; Pfost v. State (1986), 219 Mont. 206, 713 P.2d 495. The District Court reasoned that White and Pfost mandate that the State demonstrate a compelling state interest justifying such classifications because Article II, § 16, guarantees a fundamental right to full legal redress. The District Court went on to conclude that the State had failed to make the required showing, and the lower court then declared the Act unconstitutional. This is the only issue which has been adjudicated in the lower court. Appellants contend that White and Pfost should be overruled. Our decision handed down recently in Meech v. Hillhaven West, Inc. (Mont. 1989), [238 Mont. 21], 776 P.2d 488, [46 St.Rep. 1058], overrules White and Pfost, relative to Article II, § 16. Specifically, Meech holds that Article II, § 16, does not guarantee a fundamental right to a particular cause of action, and that therefore the legislature may alter common-law causes of action, remedies, and redress, without demonstrating that a compelling state interest justifies classifications created by such modifications. Meech controls this case. Therefore, the decision of the District Court must be reversed. Other issues have been briefed on appeal by Johnson and Argenbright. These issues have not been ruled on by the District Court. Therefore, they are presented prematurely before this Court, and cannot be properly reviewed at this time. See Velte v. Allstate Ins. Co. (1979), 181 Mont. 300, 593 P.2d 454. We reverse and remand for further proceedings consistent with Meech. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and WEBER concur.
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MR. CHIEF JUSTICE TURNAGE delivered the Opinion of the Court. The District Court, Eighteenth Judicial District, dismissed the complaint of Cottonwood Hills, Inc., which sought money damages and judicial review of a workers’ compensation action. Cottonwood Hills, Inc., appeals. The issue on appeal is whether the District Court abused its discretion by granting defendants’ motion to dismiss the complaint. We affirm. Cottonwood Hills, Inc. (Cottonwood), is a closely-held family corporation. In April 1985 Cottonwood hired several workers/contractors to build a pro shop at the public golf course near Bozeman, Montana. It is the characterization of these workers which was at the heart of this dispute. In January 1987 the Unemployment Insurance Division (UID) of the Department of Labor and Industry (Department) notified Cottonwood that it would be the subject of an audit. As a result of that audit, UID determined that Cottonwood was not paying the proper rate of unemployment insurance contributions. The UID found that three of Cottonwood’s workers must be characterized as employees, not independent contractors, and thus additional premiums were owed. The Uninsured Employers’ Fund and the State Compensation Insurance Fund (State Fund) assessed additional premiums and penalties against Cottonwood. Cottonwood appealed that decision. A contested case hearing as allowed under § 2-4-601 et seq, MCA, was held before the Employment Relations Division of the Department on April 19, 1988. A decision was issued upholding the addi tional assessments made by the UID. The Board of Labor Appeals affirmed the findings and decision on July 8, 1988. During the same time period, Cottonwood requested a contested case hearing before the Division of Workers’ Compensation (DWC) of the Department. Hearing was held February 10, 1988, and a proposed order issued on March 30, 1988, in favor of the DWC and UID. The administrator of the DWC upheld the assessments made by the State Fund and Uninsured Employers’ Fund in a final order dated October 14, 1988. On August 11, 1988, Cottonwood filed a complaint in District Court. The complaint contested the final decisions of the DWC and the UID, alleged that they had not dealt with Cottonwood in good faith and requested money damages. The defendants (DWC, UID, the Department and the State) moved to dismiss the complaint as filed in an improper forum. The District Court granted defendants’ motion. Cottonwood appeals. For this Court to reverse the District Court’s grant of this motion, Cottonwood must make a showing that the District Court abused its discretion by dismissing the complaint. Gold Reserve Corporation v. McCarty (Mont. 1987), [228 Mont. 512,] 744 P.2d 160, 44 St.Rep. 1723. Cottonwood is unable to make that showing. We conclude the District Court properly dismissed Cottonwood’s complaint. Procedures for judicial review of administrative rulings are found in Part 7, Montana Administrative Procedure Act (MAPA), §§ 2-4-701 through -711, MCA. Additionally, there are detailed review provisions set forth under the “Unemployment Insurance” statutes which govern the initial dispute in this case. Specifically applicable are § 39-51-1109 (tax appeals); § 39-51-2403 (decisions of appeals referee); and § 39-51-2404, (appeal to board). Compliance with the procedures is mandatory because only after the procedures have been followed is the District Court vested with jurisdiction. F.W. Woolworth Company v. Employment Security Division (Mont. 1981), [_Mont__,] 627 P.2d 851, 38 St.Rep. 694. The proper procedure for review of administrative rulings adverse to Cottonwood is set forth below. Pursuant to § 39-51-1109, MCA, Cottonwood already requested a hearing before an appeals referee to contest UID’s additional assessment. See also, §§ 39-51-2403 and -2404, MCA. Pursuant to § 39-51-2404, MCA, Cottonwood then appealed the decision of the appeals referee to the Board of Labor Appeals. At this juncture, Cottonwood’s proper review procedure was to file a petition (not a complaint) with the District Court. This Cottonwood failed to do. Section 39-51-2410(2), MCA, states that the petition “which need not be verified but which shall state the grounds upon which a review is sought, shall be served upon the commissioners of Labor and Industry and all interested parties . . .” The District Court would then review the matter to determine if the findings of the Board of Labor Appeals were based on substantial credible evidence. Cottonwood failed to follow the correct procedure. Dismissal of the complaint on that issue was proper and is hereby affirmed. Regarding the DWC decision, Cottonwood also is in error. Any appeal of a workers’ compensation decision must be filed with the Workers’ Compensation Court and not the District Court. Section 39-71-2401, MCA; § 24.29.207(2), A.R.M. The District Court specifically cited these §§ when it noted that the review of the DWC decision was not properly before it. We agree and affirm the dismissal as to that issue. We note that dismissal of the complaint seeking money damages was also proper. Cottonwood alleged that the defendants had breached the covenant of good faith and fair dealing which attached to their contract (the workers’ compensation insurance policy issued by State Fund to Cottonwood in 1986). The District Court noted that claims for breach of the covenant or “bad faith” are also tort actions in Montana. Gates v. Life of Montana Insurance Co. (1983), 205 Mont. 304, 668 P.2d 213. We agree. It is well-settled law that all tort claims against the State must first be filed with and reviewed by the Department of Administration. See, § 2-9-101, MCA, et seq., the State Tort Claims Act. Such was not done in this case, and the District Court had no jurisdiction to review the matter. It was properly dismissed. We note that dismissal of the claim alleging breach of the covenant of good faith and fair dealing was not challenged by Cottonwood on appeal, and, therefore, its dismissal would have been upheld in any event. Cottonwood is unable to show any abuse of discretion in the District Court’s order of December 12, 1988, dismissing its complaint. Judgment affirmed. MR. JUSTICES HARRISON, SHEEHY, WEBER and McDON-OUGH concur.
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MR. JUSTICE SHEEHY delivered the Opinion of the Court. The First National Bank in Havre appeals from a judgment rendered against it after jury verdict in the District Court of the Twelfth Judicial District, Hill County. The verdict was for the principal sum of $44,787.91, and judgment was entered by the District Court in favor of Phil-Co Feeds, Inc. on September 12, 1988, for the sum of $63,219.75 which includes prejudgment interest. We affirm the Judgment of the District Court. We will state the facts generally from the viewpoint of the plaintiff and additional facts as may be necessary for the discussion of each issue. Phil-Co Feeds, Inc. (Phil-Co) is a Montana corporation located in Malta, Montana, engaged in the business of selling grain and feed supplement, and other animal health care products for use in animal feeding and feedlot operations. Raymond J. Shape, with his wife, Mary Jane Shape, insofar as pertinent here, fed livestock in feedlots located on Shape’s ranches at Harlem and Roy, Montana. Shape financed his feedlot operations through First National Bank of Havre by means of various loans for the feedlot operations. It appears that First National was the sole provider of operating funds for Shape. In September of 1981, Shape approached Vic Lefdahl, manager of Phil-Co about the purchase of feed for the feedlot operations at Harlem and Roy. An agreement was made between Phil-Co and Shape at that time that Shape would be allowed to charge feed on a monthly basis and then Shape would be billed by Phil-Co on the first of each successive month and that all statements would be paid in full by Shape by the tenth of each month. Shape advised Phil-Co that all his financing was being handled by First National Bank. In November of 1981, Phil-Co sent Shape the October bill which required payment through the first few days of November. Shape paid the bill but later complained that he had been required by Phil-Co to pay for feed bills that were not yet due, that is, for the days in November. Shape asked that he be refunded the monies that he had paid beyond his October bill and Phil-Co complied. The feed bills from Phil-Co to Shape were averaging $2,000 per day, or $60,000 per month. It was the opinion of Vic Lefdahl that Shape “over-reacted” about the amount of the bill related to the November charges. Lefdahl decided to inquire with First National Bank about Shape’s financial ability to handle the feed bills. On November 19, 1981, Lefdahl telephoned Randy Smith, an officer of First National Bank, and inquired as to Shape’s financial ability to pay for the feed that was being furnished to Shape. Randy Smith advised Lefdahl that Shape could handle the feed bills under his credit line with First National Bank and also that Phil-Co had no reason for concern about the amount of the feed bill, because Phil-Co would be paid first out of the proceeds of the sale of the livestock even before the Bank, saying that Phil-Co had an “automatic first lien” for payment of the feed bill on the cattle being fed. On December 11,1981, Shape delivered a post-dated check to Phil-Co for payment on the November feed bill in the sum of $40,000. The actual balance due was $53,447.74. The post-dated check bore the date of December 16, 1981. Lefdahl called Randy Smith at the Bank to determine whether the check was good and whether it would be honored by the Bank. Randy Smith told Lefdahl that Shape was in “tough shape,” that the check would not be honored, and that Lefdahl should get out of his deal with Shape as quickly as possible. I. Should the District Court have Dismissed the Complaint and the Amended Complaint on the Grounds of Res Judicata? In March of 1982, Shape filed a petition for protection in the United States Bankruptcy Court, Great Falls Division. In the bankruptcy action Phil-Co filed a complaint in the Bankruptcy Court against First National Bank. The Bank in that action filed a motion to dismiss Phil-Co’s complaint and eventually the Bankruptcy Judge, Honorable Orville Gray, issued his order granting Bank’s motion to dismiss. Phil-Co appealed Judge Gray’s decision to the United States Dis trict Court, Great Falls Division. On May 11, 1983, the U.S. District Court Judge, Honorable Paul Hatfield affirmed the decision of Judge Orville Gray. The Bank contends on appeal here that the decision in the Bankruptcy Court is res judicata as to the issues raised in the present cause before this Court. However, Phil-Co contends that res judicata does not apply because the action in Bankruptcy Court was only for the purpose of determining the priority of right to proceeds left in bankruptcy estate as between the Bank and Phil-Co. Phil-Co contends that the Bankruptcy Court decided only the issue of equitable subordination, and that under 11 U.S.C., § 349, the effect of the dismissal in the Bankruptcy Court was to restore in effect all parties to the status quo before the bankruptcy petition was filed. Judge Orville Gray’s order granting the motion to dismiss was on these grounds: “1. That the motion to dismiss filed by defendants be and the same is hereby granted. “2. That for clarification, the court also ruled that even if plaintiff should plead the alleged statements of Mr. Randy Smith, the court would still rule that such statements are not a legal basis for recovery under the principle of equitable subordination.” Judge Hatfield’s order on appeal to the Bankruptcy Court indicated that “the order of the Bankruptcy Judge dismissing the plaintiff’s claim for equitable subordination under 11 U.S.C. § 510(c) be accepted in whole by this Court.” As counsel for First Bank correctly points out, res judicata applies when the following criteria are met: (1) The parties or their privies are the same; (2) The subject matter of the action is the same; (3) The issues related to the subject matter are the same; and (4) The capacities of the person are the same in reference to the subject matter and the issues between them. See Fox v. 7L Bar Ranch Company (1982), 198 Mont. 201, 206, 645 P.2d 929, 931; Federal Land Bank of Spokane v. Heidema (1986), 224 Mont. 64, 727 P.2d 1336, 1337; Phelan v. Lee Blaine Enterprises (1986), 220 Mont. 296, 299, 716 P.2d 601, 603. On June 22, 1983, the Bankruptcy Court dismissed Shape’s bankruptcy proceedings under Chapter 11 with prejudice upon the grounds that no plan had been filed, that no assets remained in the estate, that the costs of administration exceeded the assets and there was no chance of reorganization under Chapter 11. The dis missal was with prejudice, including all adversary matters pending in relation to the Chapter 11 proceedings. Phil-Co’s complaint and amended complaint in the state court set forth theories of liability based on misrepresentation, equitable estoppel, fraud and bad faith. The issues in the Bankruptcy Court were related to the narrow issue of equitable subordination between competing interests of two creditors of the alleged bankrupt. Thus the claim of res judicata fails with respect to two of the criteria set forth above: the subject matter of the actions are not the same, and the issues relating to them are not the same. We hold therefore the res judicata does not apply in this action based upon the proceedings taken in the Bankruptcy Court, and the appeal to the Federal District Court. Phil-Co further contends on this issue that under the 11 U.S.C., § 349, the dismissal with prejudice of the bankruptcy proceedings restores all parties involved in the bankruptcy to status quo. That may well be the effect of the federal statute, but in light of our holding as to res judicata it is not necessary for us to reach any conclusion with respect to the federal statute at this point. II. Was First National Bank Prejudiced by the Filing of an Amended Complaint by the Plaintiff Three Weeks Prior to Trial? Trial of this cause in District Court had been set for August 9, 1988, when, on July 15, 1988, Phil-Co moved the District Court for permission to amend its complaint. Phil-Co stated that it had “learned of additional facts through the discovery process and justice requires that the amendment be allowed.” First National Bank argues that Phil-Co could not have discovered any additional information from discovery that it did not have prior to the original complaint and that the amended complaint dramatically changed factual pleading and theories. One of its reasons was that the complaint had been filed four and one half years earlier. First National points to United Methodist Church v. D. A. Davidson (Mont. 1987), [228 Mont. 288,] 741 P.2d 794, 797, and McGuire v. Nelson (1973), 162 Mont. 37, 42, 508 P.2d 558, 560, for cases finding an abuse of discretion when the district court grants an amendment to pleading on the eve of trial. First National contends that the original complaint alleged theories amounting to bad faith, breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and fraud. It contends that the amended complaint changed the theories to equitable estoppel, fraud, and bad faith. Prior to settling instructions, the District Court on its own motion dismissed plaintiffs claims of equitable estoppel, fraud, bad faith, and punitive damages. The court permitted the case to go forward to the jury on theories of constructive fraud and negligent misrepresentation. First National now contends that the Court injected theories into the case which were not pleaded. The general concept of the Montana Rules of Civil Procedure is to allow a party to obtain such relief as he or she may be entitled to under the testimony and proof. Thus Rule 8(a) allows the plaintiff to set forth a short and plain statement of his claim showing that he is entitled to relief, and a demand for the judgment to which he deems himself entitled. Relief in the alternative or several different types may be demanded. Rule 8(e) is specific that when two or more statements of a claim or defense are alleged, if any one of them made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. Rule 15(a) states that amendments to pleadings may be given freely “when justice requires.” In actions involving multiple claims or involving multiple parties, Rule 54(b) permits the court to revise at any time before the entry of judgment a decision adjudicating all the claims and rights and liabilities of the parties. Especially notable is the last sentence of Rule 54(c) which provides that except in cases of judgment by default, “every final judgment shall grant the relief to which a party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” In this case, the action of the District Judge in limiting through instructions the theories of recovery to constructive fraud and negligent misrepresentation had the effect of removing much of the Bank’s claimed prejudice through the allowance of the amended complaint. The facts upon which the theories of constructive fraud, negligence and misrepresentation are based were quite well known to the plaintiff and at all times to the court during the litigation, so that First National is unable to demonstrate any prejudice that resulted from the permitted amendments. We therefore hold against First National on this issue: III. Did the Statute of Frauds Require a Dismissal of the complaint in this case? First National Bank contends that since Phil-Co alleged both in its complaint and amended complaint that the Bank had failed to honor the check which paid Shape’s debt to Phil-Co that pursuant to § 28-2-903, MCA, the cause should have been dismissed. Section 28-2-903(l)(b), MCA, provides: “The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent: “(b) A special promise to answer for a debt, default, or miscarriage of another ...” First National then points to several instances in the testimony when one or another of the witnesses stated that the Bank had “agreed” that it would see to it that Ray Shape’s bill was paid. Additionally, Phil-Co did not respond to two requests for admission which would therefore be deemed admitted: “Request No. 21: Admit that Phil-Co Feeds, Inc., never received a written agreement from the First National Bank in Havre agreeing to pay Ray Shape’s feed bill. “Request No. 22: Admit that no representative of Phil-Co Feeds, Inc., ever requested Raymond Shape to secure an agreement with the First National Bank in Havre to pay his feed bill owed to Phil-Co Feeds, Inc.” The Statute of Frauds applies to liabilities based on contract, and not to theories of liabilities based on fraud or negligent misrepresentation. Under the evidence here, Lefdahl called Randy Smith and requested information regarding Ray Shape’s ability to pay any statement on his extremely large feed bill. Randy Smith, a banker, chose to divulge information regarding Ray Shape to Vic Lefdahl and did make certain affirmative statements indicating that Shape could pay and that it did not matter if Shape did not pay as Phil-Co had an automatic feed lien which would be paid first. Phil-Co relied on this information and extended credit to Ray Shape from November, 1981 to December 11, 1981 when Vic Lefdahl again called Randy Smith to confirm that the check to Phil-Co drawn by Ray Shape on First National Bank was good. At that time, he was advised the check would not be honored and Lefdahl took action to protect Phil-Co’s interests. The requests for admission in this case are not pertinent because they relate to written agreements, and plaintiff’s case in tort is not based on a written agreement. Therefore the Statute of Frauds does not apply. We uphold the District Court on this issue. IV. Was First National Bank Prejudiced by the District Court’s Refusal to Permit Certain Evidence and Testimony? On the cross examination of Donald Cole, an attorney representing Phil-Co at the time Shape was doing business with him, and who is also representing one of its officers and directors, Lee Robinson, the Bank attempted to elicit testimony from Cole regarding his representation of Lee Robinson. When objection was sustained, the Bank made an offer of proof which would have shown that Cole had represented Lee Robinson with respect to a claim against Shape for the purchase by Shape from Robinson of a certain Versatile Tractor. Because of his trouble in collecting the debt from Shape, Bank wanted to establish that Lee Robinson knew prior to the time that Phil-Co became involved with Shape that Shape did not pay his debts as they became due. Bank contends that this would have shown that Robinson, as a director of Phil-Co, knew or should have known before Phil-Co began giving credit to Shape that he was a poor credit risk. The court denied the offer of proof upon the ground that any knowledge that Lee Robinson might have had as to the credit record of Shape could not be imputed to the corporation in this case. Plainly the District Court was correct. Bank further raises the issue of the refusal by the District Court to admit the deposition of Sid Boe as evidence in the cause. Bank asserts that the testimony of Sid Boe would have demonstrated that Phil-Co had knowledge that the Bank was not providing operating credit or monies to pay for feed to Ray Shape. This information, however, would be irrelevant to the present action. Under the testimony here, Lefdahl called the Bank and was assured that even if Shape did not receive money from the Bank for feed that nevertheless Phil-Co had an “automatic feed lien,” and would be paid before the Bank. Evidence in the cause indicated that there was no such automatic feed lien. The District Court correctly refused this testimony. The District Court also refused as irrelevant the admission of two security agreements offered by the Bank. The evidence indicated that the agreements were signed in January of 1982, but were back dated to December 8, 1981 and were security agreements which related to arrangements made through the owner of the cattle for payment for the feed after December 11,1981, when the Bank informed Phil-Co that it would not honor Shape’s last check for $40,000. Unless the offered evidence naturally and logically tends to establish a fact in issue, it is not admissible. Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 721 P.2d 303. The test of relevancy is whether an item of evidence will have any value, as determined by logic and experience in proving the proposition for which it is offered, McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 666 P.2d 742. The evidence in this case, offered by the defendant and refused by the District Court, had no relation to the representations made by the bank’s officer, upon which Phil-Co relied. We find no error on these issues. V. Did the District Court Prejudice First National Bank by Requiring it to Produce Randy Smith for Examination at Trial? In the course of the trial before the District Court, counsel for Phil-Co announced that the plaintiff would rest. Immediately thereafter, a colloquy between court and counsel for the Bank ensued as follows: “MR. KNIERIM: We will rest. “MR. THOMPSON: I know the jury has been like a jumping jack back and forth, but now we are going to put our case on, I wonder if I can have a ten minute break. I anticipated that they would have more witnesses than what they did, and I would like to have about a ten minute recess. “THE COURT: I understand that Mr. Smith is present in the court. “MR. THOMPSON: No, he is not. “THE COURT: In the courthouse? “MR. THOMPSON: No. He is not. “THE COURT: He is here in Havre. “MR. THOMPSON: I would be able to have Mr. Smith available for testimony in a few minutes. “THE COURT: I think in the interest of judicial economy, you better have him in here subject to examination by the plaintiff as a possible witness. “MR. THOMPSON: Your Honor, we will call him in our case. “THE COURT: The court has ordered him called now, Mr. Thompson, and I want to get this case settled out so that there is some understanding by the jury of what is going on. And I want you — we will have a recess. You get a hold of Mr. Smith and get him up here so he can be examined by the plaintiff. “MR. THOMPSON: Okay. Perhaps we can have a recess for ten or fifteen minutes. “THE COURT: Fine. We. are in recess for 15 minutes. “WHEREUPON, the court took its recess at 2:05 p.m.” Randy Smith appeared in court at 2:20 p.m., and the trial resumed, with Randy Smith being examined by the plaintiff as an adverse witness as part of the plaintiff’s case in chief. Counsel for the Bank now contend that the record does not show the “volcanic anger” of the District Judge at the time and his demeanor in the course of the discussion. Bank contends that the jury may have been prejudiced by the court in directing the production of Randy Smith for examination. Immediately before the colloquy above reported, there was a conference before the bench, off the record. Because the conference off the record is not reported, this Court can not indulge in speculation as to what the District Court learned at that time. Insofar as the contention of the Bank is now raised, no objection was made by Bank’s counsel at the time of the action by the Judge nor was there any motion for mistrial. Therefore there was no preservation of any issue of judicial misconduct for appeal. Evangeline v. Billings Cycle Center (Mont. 1981), [_ Mont. _,] 626 P.2d 841. We do not find error on this point. VI. Conclusion The foregoing are the issues raised by the appellant in this cause, and our disposition of the same. Because we find no error on the part of the District Court on the issues raised, we affirm the judgment. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, McDONOUGH and HUNT concur.
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MR. JUSTICE WEBER delivered the Opinion of the Court. The Searights appeal from an order of the District Court for the Eleventh Judicial District, Flathead County, denying their motion to vacate judgment and imposing sanctions against the defendant, Mr. Cimino. We affirm the District Court’s denial of the motion, and further assess damages against the appellants pursuant to Rule 32, M.R.App.P., for the filing of an appeal without substantial or reasonable grounds. The Searights present several issues for our review but we find it necessary only to address the issue of whether the District Court properly denied appellants’ motion to vacate judgment and impose sanctions. Because we answer this question affirmatively, we will not discuss the remaining issues raised by appellants. This case has a lengthy history. The Searights initiated a cause of action against Mr. Cimino in 1981, seeking to enforce the terms of a contract for deed requiring Mr. Cimino to pay half the cost of an airstrip constructed on the Searights’ land. On May 14, 1985, judgment was entered in favor of the Searights, and on appeal this Court affirmed. Searight v. Cimino (1986), 221 Mont. 277, 718 P.2d 652, 43 St.Rep. 810. Mr. Cimino then sought to enforce the terms of the contract for deed granting him the right to use the airstrip. In July of 1986, he filed a motion to cause appellants to execute an airport easement pursuant to Rule 70, M.R.Civ.P., which provides in relevant part: “If a judgment directs a party to execute a conveyance of land or to deliver deeds or other documents or to perform any other specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of the disobedient party by some other person appointed by the court and the act when so done has like effect as if done by the party.” The Searights resisted defendant’s motion, arguing that the previous judgment entered did not contain any reference to an easement which could be enforced by invoking Rule 70, M.R.Civ.P. The Searights acknowledged defendant’s right to use the airstrip as set forth in the contract for deed, but argued that the granting of an easement was not contemplated either by the contract or by the District Court’s judgment so that defendant’s motion should be dis missed. The Searights also requested sanctions against Mr. Cimino under Rule 11, M.R.Civ.P. The District Court held a hearing on the motion to cause the execution of the easement, and ruled that a written easement needed to be prepared and recorded. Following a later hearing on the Searights’ motion for sanctions, the District Court found that an easement had been prepared and recorded by the Searights’ attorney. The court further found that the motion for sanctions “appears to be harassment on Mr. Searight’s part.” The court denied sanctions against Mr. Cimino, and on its own motion, imposed sanctions against the Searights of $100. The Searights then filed a motion to alter or amend the judgment, arguing that Rule 70, M.R.Civ.P., was inappropriate to enforce a judgment granting an easement which never existed. The District Court denied the motion, reasoning that: “The thrust of Plaintiffs’ argument is to relitigate the issue of easement. Since plaintiffs have already signed and recorded the easement the point is moot.” On appeal, this Court refused to disturb the actions of the parties in putting the easement on record. Searight v. Cimino (Mont. 1988), [230 Mont. 96,] 748 P.2d 948, 45 St.Rep. 46. This conclusion was reached based upon the absence of a record of the hearing on Mr. Cimino’s motion to require execution of an easement, and the absence of proof of whether an order was issued or whether the parties were simply told to work it out. This Court also affirmed the levying of sanctions against the Searights, but refused to award damages for a frivolous appeal under Rule 32, M.R.App.P. 748 P.2d at 952. On March 10, 1989, after appointing himself as counsel, Mr. Sea-right filed a motion to vacate judgment and impose sanctions in the District Court. The motion requested that the court, pursuant to its authority under Rule 12(h)(3), M.R.Civ.P., and Rule 60(b)(4), M.R.Civ.P., vacate all orders, decrees, and judgments entered in the action arising from Mr. Cimino’s motion to cause appellants to execute an airport easement. Mr. Searight contended that the District Court lost subject matter jurisdiction of the case after entry and satisfaction of its final judgment in the first action and had no power to order the granting of an easement. Mr. Searight also requested that sanctions be imposed against Mr. Cimino pursuant to Rule 11, M.R.Civ.P. The District Court summarily denied the motion. It is from this denial that the Searights appeal. I Did the District Court properly deny appellants’ motion to vacate judgment and impose sanctions? Appellants contend that the District Court was without subject matter jurisdiction to hear and determine the easement issue because final judgment had been rendered in the prior decision and that judgment included no reference to an easement which could have been enforced under Rule 70, M.R.Civ.P. Appellants argue that all orders and judgments rendered as to the easement issue must be vacated, citing Crawford v. Pierse (1919), 56 Mont. 371, 375-76, 185 P. 315, 317-18: “It is elementary that when the judgment-roll upon its face shows that the court was without jurisdiction to render the particular judgment, its pronouncement is in fact no judgment. It cannot be enforced. No right can be derived from it. All proceedings founded upon it are invalid and ineffective for any purpose .... An affirmance of such a judgment on appeal cannot make it valid. (Citations omitted.) In response, Mr. Cimino argues that appellants are merely attempting to relitigate the easement issue, and that because they have already had the opportunity to raise a jurisdictional challenge, the doctrine of res judicata applies to preclude further litigation of this matter, citing Wellman v. Wellman (1982), 198 Mont. 42, 643 P.2d 573: “Once there has been full opportunity to present an issue for judicial decision in a given proceeding, including those issues that pertain to a court’s jurisdiction, the determination of the court in that proceeding must be accorded finality as to all issues raised or which fairly could have been raised, else judgments might be attacked piecemeal and without end.” (Emphasis supplied.) 643 P.2d at 575, citing Royal Coachman Color Guard v. Marine Trading (Me. 1979), 398 A.2d 382, 384. Contrary to appellants’ contentions that Wellman is distinguishable we conclude that it controls. In Wellman, appellants attempted to attack a judgment rendered ten years prior to the appeal, contending that the District Court exceeded its jurisdiction by granting more relief than was sought in the pleadings. In affirming the lower court’s dismissal, this Court said: “Plaintiffs had a full opportunity to litigate the voidness issue in 1971 when they first moved to set aside the default judgment. They failed to do so. The doctrine of res judicata is founded upon the generally recognized public policy that there must be some end to litigation. The end for the plaintiffs in this case occurred more than ten years ago when they failed to.raise the issue of jurisdiction and the District Court denied their first motion to set aside the default judgment.” 643 P.2d at 575-76. In the present case, appellants had the same opportunity to raise the voidness issue when Mr. Cimino first filed his motion'to cause execution of an airport easement. They did in fact object to the District Court’s ability to enforce an easement under Rule 70, M.R.Civ.P., in their motion to alter or amend the judgment following disposition of the easement issue. They further raised the specific issue of lack of subject matter jurisdiction in their Petition for Rehearing after this Court’s opinion in the matter. Because the substance of appellants’ challenge to the District Court’s actions has remained the same, it is apparent they are merely attempting to re-litigate issues which have already been decided by invoking different labels by which to contest the proceedings, one of which is subject matter jurisdiction. We will not allow appellants’ characterization of their claim to hinder application of the doctrine of res judicata, and the prevention of protracted litigation. Furthermore, the District Court’s handling of the easement issue was compelled by the actions of the appellants themselves. While it is not clear from the record whether the District Court ordered an easement be granted or told the parties to “work it out,” the District Court’s findings indicate that appellants were uncooperative and that Mr. Cimino’s attorney was left with three alternatives: (a) to do nothing and have this matter continue indefinitely without resolution; (b) to breach the Code of Professional Responsibility and communicate directly with Mr. Searight; or (c) to seek relief through the Court. The District Court found that Mr. Cimino’s attorney chose the only alternative that was reasonably available to him, namely, to file a motion asking the court to compel an easement be drawn and recorded. Even if the relief sought by Mr. Cimino was beyond the scope of the original pleadings in the first proceeding, we hold that a jurisdictional challenge to the court’s actions will nevertheless be barred by the doctrine of res judicata under this Court’s holding in Well- man. We affirm the District Court’s order denying appellants’ motion to vacate and impose sanctions. Because we conclude that this appeal is taken without substantial or reasonable grounds and that appellants are merely attempting to relitigate the easement issue, we impose damages in the amount of $500 pursuant to Rule 32, M.R.App.P. Affirmed. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HUNT, SHEEHY and McDONOUGH concur.
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MR. JUSTICE HUNT delivered the Opinion of the Court. A. Lee Buckland, defendant and appellant, appeals from the foreclosure of a trust indenture on his property entered in favor of American Federal Savings and Loan Association, plaintiff and respondent, by the District Court of the First Judicial District, Lewis and Clark County. American Federal cross-appeals on the issue of a mechanic’s lien entered in favor of Buckland. We affirm in part and remand for a recalculation of amounts due under the trust indenture. The issues raised on appeal are: 1. Whether American Federal improperly carried forward a mechanic’s lien from one property to another. 2. Whether American Federal breached its duty of good faith and fair dealing by mismanaging rental property. 3. Whether the District Court properly found that American Federal was entitled to foreclosure of its note secured by a trust indenture on Buckland’s property. In 1978, Buckland, a real estate broker, purchased an apartment building on Rodney Street in Helena, Montana, on a contract for deed. Buckland refinanced the property by obtaining a loan with American Federal. Originally, the loan was secured by a trust indenture on the property for $35,000.00 but it was later refinanced for $45,000.00. In 1981, Buckland hired Blackfoot Electric to rewire the building. Blackfoot submitted a written bid for the job at $4,700.00 but ran into unanticipated problems. Consequently, Blackfoot billed Buck-land for over $9,000.00. Because Buckland did not pay the bill, Blackfoot filed a mechanic’s lien against the property in January of 1982 for $9,148.74. In 1983, Buckland arranged an exchange transaction involving his Rodney Street property, a Warren Street property, also located in Helena, and a fifteen-acre tract portion of a subdivision located in Lewis and Clark County known as Sunny Vista. The exchange involved Buckland, as owner of the Rodney Street property, Thomas Fenton, as the owner of the Warren Street property, American Federal, as the holder of a first trust indenture on the Rodney Street property and the holder of a first trust indenture on the Warren Street property, Edward Eberly, as the holder second trust indenture on the Warren Street property, and Robert King, as the owner of the Sunny Vista tract. However, before the exchange could take place, the Blackfoot mechanic’s lien needed to be settled. Since American Federal held a security interest in Buckland’s Rodney Street property, its approval was necessary to settle the. mechanic’s lien and complete the exchange of properties. Consequently, American Federal acted as pointman, with Buckland’s input, in the mechanic’s lien negotiations. The mechanic’s lien was settled for $10,500.00, which totaled $11,700.00 with interest. Buckland objected to settling the lien for that amount which included the original $9,148.74 lien plus costs. American Federal paid the settlement and took assignment of the lien. On July 22, 1983, the properties were exchanged and, as part of the exchange, American Federal loaned Buckland $11,700.00, the amount paid by American Federal on the mechanic’s lien, which was secured by a trust indenture on Buckland’s newly acquired property. The trust indenture, when added to a previous debt owed American Federal, totaled $29,700.00. Further, Buckland’s Sunny Vista property was subject to a trust indenture securing a $29,700.00 debt due American Federal; Buckland assumed responsibility for Fenton’s $9,479.37 debt to Eberly; Buckland took on a third trust indenture for a $5,000.00 debt he owed to King; and the mechanic’s lien, settled at $10,500.00, was carried forward. Subsequently, Buckland traded his Sunny Vista property for a Billings Avenue duplex located in Helena, valued at $48,500.00 and owned by Sharon Hubbell. Hubbell owned the Billings Avenue property subject to a contract for deed which was transferred upon the exchange. The holders of the first, second and third trust indentures against the Sunny Vista property agreed to transfer their trust indentures to the Billings Avenue property in order to facilitate the Buckland-Hubbell exchange. The mechanic’s lien was also carried forward. In addition, on August 3, 1983, American Federal loaned Buckland $4,477.00. The loan was secured by a fourth trust indenture on the Billings Avenue property. Hence, Buckland’s Billings Avenue property was subject to the following trust indentures: (1) A first trust indenture of July 22, 1983, to First Montana Title, as trustee, and in favor of American Federal Savings and Loan Association, as beneficiary, to secure payment of $29,700.00, with interest at 13 % percent per annum, payable in monthly installments. (2) A second trust indenture of July 22, 1983, to First Montana Title, as trustee, and in favor of Edward C. and Marilyn Eberly, as beneficiaries, to secure payment of $9,479.37, with interest at 11 percent per annum, payable in semiannual installments. (3) A third trust indenture of July 22, 1983, to first Montana Title Insurance Company, as trustee, and in favor of Robert King and Margaret King, as beneficiaries, to secure payment of $5,000.00, with interest at 10 percent per annum, payable in annual installments. (4) A fourth trust indenture, of August 3, 1983, to First Montana Title Insurance Company, as trustee, and in favor of American Federal Savings and Loan Association, as beneficiary, to secure payment of $4,477.00, with interest at 15 percent per annum, payable in October 1983. The security for this payment was “the proceeds of real estate commissions.” The first and fourth trust indentures are the subject of this dispute. Buckland’s payments to American Federal under the first trust indenture (the July note) were $358.60 per month to begin on August 1, 1983. The fourth trust indenture (the August note) was due, in full, in October of 1983. American Federal notified Buckland by letter that the July and August notes had gone into default — the July note in September of 1983 and the August note in October of 1983. In 1983, Buckland made payments on the July note in the total amount of $3,644.46. In January of 1984, Buckland made only two payments towards the July note — one in the amount of $291.60 and the other in the amount of $67.00. In June of 1984, Buckland moved to Georgia and arranged for Kelly Patzer to manage the Billings Avenue property and remit rents collected to American Federal for application to the July and August notes owed on the Billings Avenue property. On September 24, 1984, American Federal received a letter from Buckland inform ing it of Buckland’s instruction to Patzer to bring American Federal the rents, “to be applied to the loans.” On October 29, 1984, American Federal sent Buckland a letter informing him it was applying rents received on his account to satisfy the August note first and then to satisfy the July note. In July of 1984, American Federal advanced monies for the payment of taxes and insurance due on the property. Early in 1985, Patzer turned management of the Billings Avenue property over to Steve Schmitz. Under Schmitz’s management, rents were not remitted to American Federal. In August of 1985, Schmitz turned management of the property over to American Federal at which time American Federal advanced monies towards maintenance, utilities and repairs. At that time, one rental unit was vacant and the other was four months delinquent. American Federal reduced the rent on the vacant rental and shortly thereafter found a tenant. Rents received under American Federal’s management were not applied to the July note but were documented in a general ledger non-interest bearing account which totaled $9,734.81 through November 22, 1987 ($1,114.49 of the rents collected were applied to the August note which was paid off in September of 1985). In January of 1986, American Federal commenced foreclosure proceedings on its trust indenture securing the July 1983 note. Buck-land returned to Helena in May of 1986. American Federal had originally scheduled a trustee’s sale but it was canceled due to the insistence of Buckland, Eberly and King. American Federal settled the claims of Eberly and King prior to trial but commenced with a judicial foreclosure in District Court against Buckland. Buckland counterclaimed on the issue of breach of American Federal’s duty of good faith and fair dealing. On November 23, 1987, the case was tried in the District Court, sitting without a jury. The court’s findings of fact and conclusions of law included the following: “1. American Federal is entitled to foreclosure of its security interests in the property but was not entitled to a deficiency judgment nor attorney fees; “2. The money paid to satisfy the mechanic’s lien on the Rodney Street property should not have been carried forward to the Billings Avenue property; “3. Buckland did not establish by a preponderance of the evidence that American Federal breached the implied covenant of good faith and fair dealing; “4. Rents received by American Federal beginning in August of 1985 should not have been put in the general ledger account; and “5. There should be a recalculation of amounts due American Federal.” On April 11, 1988, Buckland filed a post-trial motion to amend the findings of fact and conclusions of law and a motion for a new trial. On April 14, 1988, American Federal filed cross-motions on the same subject matter. The motions were denied under Rule 59(d), M.R.Civ.P. Buckland appeals and American Federal cross-appeals. In Dennis v. Tomahawk Services, Inc. (Mont. 1989), [235 Mont. 378,] 767 P.2d 346, 347, 46 St.Rep. 69, 70, we provided: “The standard of review for a civil case for a judge sitting without a jury is whether or not the District Court’s findings are clearly erroneous. (Citation omitted.) . . . this Court will not substitute its judgment for that of the trial court’s absent that showing, even where there is evidence in the record to support appellant’s contentions.” The first issue raised on appeal is whether American Federal improperly carried forward a mechanic’s lien from Buckland’s Rodney Street property to his Billings Avenue property. The July 22, 1983, $29,700.00 note, secured by a trust indenture, originally applied to Buckland’s Rodney Street property. The note was transferred to the Sunny Vista property and eventually to the Billings Avenue property under a complicated property exchange. Buckland argues, and correctly so, that the $29,700.00 figure was inflated because it included the $10,500.00 ($11,700.00 with interest) mechanic’s lien which, according to the Rodney Street closing statement, was paid from the proceeds of the $65,000.00 sale price received from Fenton on the Rodney Street property. (No actual money changed hands as the transaction was on an exchange basis.) Thus, the July note need be reduced by the amount of the mechanic’s lien lest American Federal recover twice. The second issue raised on appeal is whether American Federal breached its duty of good faith and fair dealing by mismanaging the Billings Avenue rental property. Buckland contends that for numerous reasons, American Federal breached its duty as set forth in § 30-1-203, MCA: “Every contract or duty within this code imposes an obligation of good faith in its performance or enforcement.” In June of 1984, Buckland moved to Georgia, leaving management of the Billings Avenue property in the hands of Kelly Patzer. Patzer was instructed to remit rents received to American Federal as payments on Buckland’s July and August notes. On September 24, 1984, American Federal received a letter from Buckland which read in part: “I have instructed Kelly to bring the rent into you to be applied toward the loans.” On October 29, 1984, American sent Buckland a letter informing him that it was applying rents received first to satisfy the August note and next to satisfy the July note. Buckland argues that this was a breach of American Federal’s duty of good faith and fair dealing since it had an obligation to apply rents to July note before the August note. We disagree. The relationship between bank and customer is that of debtor-creditor. Under § 28-1-1106(2), MCA, when a debtor owes more than one debt and does not direct the creditor as to how payment is to be applied, the creditor may apply the payment to any obligation owing. See also, National Bank of Montana v. Bingham (1931), 91 Mont. 62, 5 P.2d 554. In the present case, Buckland never instructed American Federal as to which note to apply rents to and he never objected to the order of application of rents until threatened with foreclosure. American Federal duly notified Buckland of its intention to apply rents as it did and cannot now be said to have breached its duty of good faith and fair dealing for doing so. Further, in 1985, Patzer turned management of the Billings Avenue property over to Steve Schmitz who turned management of the property over to American Federal in August of 1985. Buckland argues that when American Federal took over management it breached its duty of good faith by arbitrarily reducing rents and failing to qualify a delinquent renter for Helena Housing Authority guaranteed payments. American Federal notes, however, that it reduced rent on a vacant apartment in order to find a renter and shortly thereafter found one. Further, the record indicates that American Federal did attempt to qualify the delinquent tenant for the Helena Housing Authority guaranteed payments but Helena Housing required Buckland’s signature which American Federal could not obtain due to Buckland’s absence from the state. There was no breach of duty by American Federal on this contention. Buckland also argues that American Federal breached its duty of good faith by placing payments, which should have applied to the July note, in a non-interest bearing general ledger account presently totaling $9,734.81 ($3,092.51 as of the date the complaint was filed). He argues that interest on the note accrued at a higher rate because the amount had not been reduced. The trust indenture provided that when the lender is in possession, rents received shall apply to the cost of management and then to the sums secured by the trust indenture. Instead of applying the sums in this manner, sums were merely documented in the ledger. Under the terms of the agreement, American Federal had the authority to apply rents received to the cost of management. Although American Federal expended $4,636.95 paying taxes, (not including an additional $433.29 on the first half taxes due in November of 1987), insurance, maintenance, utilities and repair expenses on the property, it did not deduct these costs from the general ledger account as provided for in the trust indenture. On the same note, it did not so apply the funds toward the interest nor the principal owed by Buck-land on the July note. American Federal argues that it let the funds lay dormant in the account because there were never enough rental receipts at any one time to pay oif interest accrued on the note. While we do not condone the handling of the funds in the general ledger account, the evidence under these circumstances is insufficient to hold that American Federal breached its duty of good faith on this allegation. Buckland also contends that American Federal breached its duty of good faith and fair dealing in settling the mechanic’s lien for $10,500.00. The original bid for rewiring the Rodney Street building was $4,700.00. Due to unanticipated problems, Blackfoot billed Buckland $9,148.74. Buckland, who proposed to sell the property, needed American Federal’s approval since it had a security interest therein. Hence, American Federal negotiated the settlement, with Buckland’s input, for $10,500.00, which included the lien plus costs. Buckland objected to this amount. However, the settlement of the lien was necessary before the exchange could take place since a mechanic’s lien is prior to a trust indenture. See Home Interiors, Inc. v. Hendrickson (1984), 214 Mont. 194, 692 P.2d 1229. Buckland, an experienced real estate broker, opted to go through with the settlement, although he found it objectionable, in order to facilitate the Rodney Street property exchange and admitted that the settlement was in his own best interests. We cannot, therefore, hold that a breach of American Federal’s duty on this contention is founded. Buckland did not establish by a preponderance of the evidence that American Federal breached its duty of good faith and fair dealing. The evidence is insufficient. The last issue raised on appeal is whether American Federal was entitled to foreclosure of its July 1983 note secured by a trust indenture on Buckland’s Billings Avenue property. As noted, Buckland’s Billings Avenue property was subject to four trust indentures upon transfer. A first trust indenture secured the payment of the July note in the amount of $29,700.00 with interest at 13 Vi percent per annum, payable in monthly installments at $358.60. Payments were to begin August 1, 1983. On September 2, 1983, American Federal sent Buckland a letter stating that the loan payment had not been received. Buckland proceeded to make payments in the total amount of $3,644.46 for 1983. In January of 1984, Buckland made only two payments toward the July note — one in the amount of $291.60 and the other in the amount of $67.00. No further payments were made by Buckland toward the July note. On April 5, 1984, American Federal once again sent a letter to Buckland informing him that his loan payment was delinquent. On September 19, 1984, American Federal sent Buckland a letter which broke down amounts due on both the July and August notes. The letter also stated that American Federal was willing to work with Buckland on the notes but required a response by September 30, 1984, or it would proceed with foreclosure. Buckland did respond on September 24, 1984, stating that rents from his Billings Avenue property were to be deposited by the current manager of the building, Patzer, and were to be “applied to the loans.” On October 29, 1984, American Federal responded that it would first apply the rents to the August note until paid off and then to the July note. American Federal added that as long as “rent continues to come on a regular basis the foreclosure will be held off.” However, early in 1985, management of the property was turned over to Steve Schmitz. Under his management, there were vacancies and problems with remitting rents collected to American Federal. In August of 1985, Schmitz turned management over to American Federal. American Federal applied the rents first to the August note, which was paid in full in September of 1985, and the trust indenture was released. Through November of 1987, American Federal collected rents in the amount of $9,734.81 which were placed in a non-interest bearing general ledger account. As noted, the funds could have been used towards American Federal’s costs of managing the Billings Avenue property but were not. Although we disagree with the handling of the funds, the funds, if applied to the July note, would still have been insufficient to bring the note current. The foreclosure was proper. Neither Buckland in his appeal nor American Federal in its cross-appeal proved the District Court’s findings to be clearly erroneous. We will not disturb the court’s findings. A problem remains as to the amount due on the July 1983 note. The note was for $29,700.00 which included sums improperly carried forward on the Blackfoot mechanic’s lien. A recalculation on the amount due by Buckland is necessary. We note that when recalculation occurs consideration must be given to principal, interest, late charges, expenses of managing the Billings Avenue property, and sums remaining in the general ledger account. Affirmed in part and remanded for a recalculation on amounts due under the trust indenture. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and McDONOUGH concur.
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MR. CHIEF JUSTICE TURNAGE delivered the Opinion of the Court. Defendant Michael Duane Stillings appeals his conviction by the District Court of the Eighth Judicial District, Cascade County, for committing perjury by making two, inconsistent, material statements under oath in an official proceeding in violation of § 45-7-201(6), MCA (1987). We affirm. The defendant raises the following issues on appeal. Did the District Court err in denying the defendant’s motion to dismiss the information when the District Court found that either: 1) the defendant’s act of perjury under § 45-7-201(6), MCA (1987), was not complete, and therefore the statute of limitations did not begin to run until the defendant made a material statement under oath that was inconsistent with this previous testimony; or, in the alternative 2) under § 45-1-206(1), MCA (1987), the defendant’s out-of-state incarceration tolled the statute of limitations on his first statement so that both statements fell within the five year statute of limitations? On the night of February 23, 1971, Vicki Renville was raped and bludgeoned to death in the Wadsworth Park area of Great Falls, Montana. During the resulting murder trial, Michael Stillings testified on October 4, 1971, that he and Fred Lee Perry raped Renville and that when she threatened to “rat,” Perry repeatedly struck Renville on the head with a tire iron. Perry was subsequently convicted of second degree murder. See State v. Perry (1973), 161 Mont. 155, 505 P.2d 113 (affirming the District Court decision). Stillings pled guilty to the same charge and received a sixty-year sentence with ten years suspended. Stillings was incarcerated in the Montana State Prison on November 29, 1971. On December 6, 1971, he was transferred to the California prison system under the provisions of the Interstate Correctional Compact Agreement to prevent his confinement in the same prison as Perry. California paroled Stillings to Washington on August 18, 1978. On February 14, 1979, Stillings was arrested and sub sequently convicted of armed robbery in Washington. After he served five years of his thirty-five year sentence, Washington paroled Stillings to Montana on detainer on April 20, 1984. Montana revoked Stillings’ parole on his second degree murder charge returning him to the Montana State Prison. In 1986 the California prison system transferred Perry to Deer Lodge placing Stillings and Perry in the same prison for the first time. Stillings soon indicated that he would recant his previous testimony against Perry, and Perry applied for a new trial. During the new trial hearing on July 24, 1987, Stillings disavowed his 1971 testimony against Perry and stated under oath that he, and not Perry, had killed Vicki Renville. The trial court, however, did not find Stillings’ testimony credible and refused to grant Perry a new trial. See State v. Perry (Mont. 1988), [232 Mont. 455,] 758 P.2d 268, 45 St.Rep. 1192 (affirming the District Court decision). On September 25, 1987, the Cascade County Attorney filed an information against Michael Stillings charging that Stillings committed perjury by making two, inconsistent, material statements under oath in violation of § 45-7-201, MCA (1987). Stillings filed a motion to dismiss the information on the grounds that the statute of limitations had run. The District Court denied the motion. Defendant Stillings then filed an application for writ of supervisory control on the same grounds and the Montana Supreme Court denied the petition. In the ensuing bench trial, the District Court found the defendant guilty and sentenced him to ten years for perjury and ten years as a persistent felony offender. The District Court also revoked the ten-year suspended sentence on Stillings’ second degree murder conviction and ordered that all sentences run consecutively. Defendant Stillings now appeals his perjury conviction. I. Did the District Court err in its alternative finding that the defendant’s act of perjury under § 45-7-201(6), MCA (1987), was not complete, and therefore the statute of limitations did not begin to run until the defendant made a material statement under oath that was inconsistent with his previous testimony? Montana’s perjury statute provides that: “A person commits the offense of perjury if in any official proceeding he knowingly makes a false [material] statement under oath Section 45-7-201(1), MCA (1987). The statute further provides that: “Where the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.” Section 45-7-201(6), MCA (1987). The defense in this case argues that by the plain language of the inconsistent testimony provision, both statements must be made within the five year statute of limitations for .felony crimes. Stillings contends that because seventeen years lapsed between his statements, the statute of limitations had run before the prosecution filed its information against him. We disagree. The statute of limitations did not run because the statute was triggered only by Stillings’ second statement which completed the crime of perjury under § 45-7-201(6), MCA (1987). The statute of limitations clearly states when the time limitation begins to run: “A prosecution for a felony must be commenced within 5 years after it is committed.” Section 45-l-205(2)(a), MCA (1987). (Emphasis added.) “An offense is committed either when every element occurs or, when the offense is based upon a continuing course of conduct, at the time when the course of conduct is terminated. Time starts to run on the day after the offense is committed.” Section 45-1-205(5), MCA (1987). Commission of the crime of perjury by making inconsistent, material statements under oath requires at a minimum that the accused has made two conflicting statements. When a witness makes conflicting statements under oath, it is axiomatic that one is false so long as all other elements of perjury can be satisfied. This statute expedites prosecution by eliminating the needless requirement of proving which statement is false. The intrinsic falsity of the accused’s testimony arises, and the crime is complete, only when the inconsistent testimony occurs. The statute of limitations, therefore, cannot begin to run at least until the defendant has completed the crime by making the indispensable, second statement. The issue raised by the defendant accentuates an underlying con tradiction in the inconsistent testimony statute. A crime under this statute cannot be completed, and the statute of limitations does not begin to run, until the defendant makes at least two allegedly inconsistent statements. However, the statute declares that “both [statements must be] made within the period of the statute of limitations.” Section 45-7-201(6), MCA (1987). By including the first statement, which might be entirely true, within the period of limitations, this clause would trigger the statutory period before any crime has been committed. The statute entices the unscrupulous witness to falsely recant five-year-old, credible testimony and insulate himself against prosecution under this statute. We invite the legislature to consider an appropriate remedy to this problem. In the present case, application of this questionable statutory clause would still not have provided grounds for barring the prosecution’s information. II. Did the District Court err in its alternative finding that under § 45-1-206(1), MCA (1987), the defendant’s out-of-state incarceration tolled the statute of limitations on his first statement so that both statements fell within the five year statute of limitations? Section 45-1-206, MCA (1987), provides that: “The period of limitation does not run during: (1) any period in which the offender is not usually and publicly resident within this state or is beyond the jurisdiction of this state . . . .” The defendant argues that during the time he was incarcerated in California on his second degree murder charge, he was still under Montana jurisdiction. While this contention may be true, we make no determination on this issue since it is not relevant. Section 45-1-206(1) is written in the disjunctive and either clause is sufficient in itself to toll the statute of limitation. Failure of the criminal defendant to be “usually and publicly resident within this state” will itself interrupt the running of the statutory period regardless of jurisdiction. The statute is also tolled when the criminal defendant is “beyond the jurisdiction of the state” regardless of his place of residence. The Criminal Law Commission Comments on § 45-1-206 are also written in the disjunctive and note that: “Subsection (1) tolls the statute for the offender who is absent from this state, or absents himself from his usual place of abode and makes some effort to conceal himself.” Again, each clause is sufficient to toll the statutory period. Absence from the accused’s usual abode coupled with attempts at concealment will toll the statute. Absence from the state will, independently, interrupt the statutory period. We therefore hold that the mere absence of the criminal defendant from the state is sufficient to toll the statute of limitations. The majority of states interpreting similar statutes have also concluded that a criminal defendant’s mere absence from the state is sufficient to toll the statute of limitations. See State v. Nelson (App. 1988), 157 Ariz. 187, 755 P.2d 1175; State v. Wright (Utah 1987), 745 P.2d 447; State v. Houck (1986), 240 Kan. 130, 727 P.2d 460; State v. Ansell (1984), 36 Wash.App. 492, 675 P.2d 614; State v. Azzone (1965), 271 Minn. 166, 135 N.W.2d 488; State v. Lupino (1964), 268 Minn. 344, 129 N.W.2d 294; Grayer v. State (1962), 234 Ark. 548, 353 S.W.2d 148; Couture v. Commonwealth (1958), 338 Mass. 31, 153 N.E.2d 625; Traxler v. State (1953), 96 Okl.Cr. 231, 251 P.2d 815. A number of states have applied this principle to cases similar to that of Stillings. In the seminal case of People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197, the Illinois Supreme Court first interpreted the statutory exclusion for periods during which the defendant was “not usually and publicly resident within this state.” The court defined “resident” by its common meaning and held that the statute of limitations was tolled during the Missouri incarceration of the defendant even though he remained a legal resident of Illinois. Carman, 52 N.E.2d at 199-200. Similarly, Stillings’ incarceration in Washington on armed robbery charges tolled the statute of limitations. The fact that Stillings’ whereabouts were known to Montana law enforcement officials throughout his absence does not change the rule. The Washington Court of Appeals held that the absence from the state of a first-degree statutory rape defendant was sufficient to toll the statute of limitations even though the defendant’s whereabouts were easily determinable by law enforcement officials. State v. Ansell (1984), 36 Wash. App. 492, 675 P.2d 614, 617. The ability of Montana to force the return of Stillings at any point during his time in California and Washington does not affect the tolling of the statutory period. The Washington courts held that the statute was tolled on a first-degree robbery defendant incarcerated in Oregon who was available for extradition under the Interstate Agreement on Detainers. State v. Newcomer (1987), 48 Wash.App. 492, 737 P.2d 1285, 1290. Similarly, Montana’s maintenance of some control of Stillings during his California incarceration for his Montana murder conviction did not overcome the tolling of the statute. In an analogous case the Kansas Supreme Court held that a criminal defendant voluntarily paroled to Arkansas from the Kansas prison system and under the control of Kansas parole officials was not in the custody of the State of Kansas and therefore the statute tolled during his absence. State v. Houck (1986), 240 Kan. 130, 727 P.2d 460, 465-66. In each of these cases, the principle is the same as that which we adopt today; mere absence from the state is sufficient to toll the statute of limitations for a criminal defendant. If the statute of limitations were applied to Stillings’ first statement, it would have been triggered by his testimony on October 4, 1971. The defendant left Montana for incarceration in California on December 6, 1971, tolling the statutory period at two months. He returned to prison in Montana on April 20, 1984, restarting the statute of limitations which ran until the prosecution filed its information on September 24, 1987 — a period of three years and five months. The statute of limitations, therefore, ran for three years and seven months and fell well within the five year statutory period. We find that the District Court was correct in both of its alternative holdings. Stillings’ mere absence from the state tolled the statute of limitations. Even if the statutory period had not been tolled, it could not have begun to run until Stillings made a material statement under oath that was inconsistent with his previous testimony. Affirmed. MR. JUSTICES HARRISON, WEBER, HUNT and SHEEHY concur.
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MR. JUSTICE HUNT delivered the Opinion of the Court. Plaintiff Roy Weible appeals from an order of the Twentieth Judicial District Court, Lake County, dismissing his complaint against defendant Ronan State Bank. We affirm. The dispositive issue raised on appeal is as follows: Were the claims asserted by Weible in his complaint based solely on a tort action for injury to or trespass on property, and, as such, barred by a two-year statute of limitations? Beginning in 1973, Roy Weible and his wife, Alta Weible, executed several new and renewal promissory notes to Ronan State Bank. As collateral securing the performance of the notes, the Weibles executed and delivered to the Bank an assignment of their buyers’ interest in certain real property, a mortgage upon that property and a security agreement covering personal property. As of September 9, 1985, the promissory notes were in default. The Bank initiated an action to obtain judgment upon the notes and a decree of foreclosure of the real property. On May 28, 1986, a hearing on the Bank’s motion for summary judgment was held, at which time counsel for the Weibles stipulated to the summary judgment and agreed no defenses could be raised. The formal judgment and decree of foreclosure was entered on August 4, 1986. On June 3, 1986, after the hearing on summary judgment but prior to the entry of judgment, agents of the Bank entered onto Roy Weible’s real property and removed farm machinery used as collateral in the personal property security agreement. On August 3, 1988, more than two years after the removal of the machinery, Weible filed a complaint against the Bank and Stedje Brothers, Inc., alleging that the Bank breached the security agreement by failing to give ten days notice prior to seizure of the farm machinery as required by the agreement, trespassing upon his property and wrongfully removing the equipment. On August 5, 1988, Weible filed an amended complaint, dropping Stedje Brothers as a defendant. In response to the complaint, the Bank filed a motion to dismiss. After a hearing, the District Court granted the Bank’s motion on the grounds that Weible’s claims were barred by the statute of limitations, the doctrine of res judicata and the compulsory counterclaim rule. On appeal, Weible contests each of the grounds upon which the District Court based its determination. We will not discuss the res judicata and compulsory counterclaim questions, however, because the statute of limitations issue is dispositive of the appeal. Weible argues that the District Court erred in concluding that the action against the Bank was barred by the statute of limitations. The District Court held that Weible’s complaint rested solely on the tort theories of trespass on and injury to real and personal property, and, therefore, the complaint was barred by § 27-2-207, MCA, the two-year statute of limitations pertaining to actions involving injury to property. Weible argues that his complaint was also based on breach of the security agreement, and, therefore, the action was governed by § 27-2-202(1), MCA, the eight-year statute of limitations pertaining to actions involving breach of a written contract. In determining which statute of limitations applies, the court will look to the substance of the complaint. If the gravamen of the action rests strictly on tort theories, the statute of limitations pertaining to torts will apply. Likewise, if the gravamen of the action rests strictly on contract theories, the statute of limitations pertaining to contracts will apply. Castillo v. Franks (1984), 213 Mont. 232, 239, 690 P.2d 425, 428; Quitmeyer v. Theroux (1964), 144 Mont. 302, 311, 395 P.2d 965, 969. If the gravamen of the action is such that it may rest either in tort or contract, the injured party may elect the theory he will pursue and the statute of limitations governing the elected theory will apply. Unruh v. Buffalo Bldg. Co. (Mont. 1981), [_ Mont. _,] 633 P.2d 617, 618, 38 St.Rep. 1156, 1158. If doubt exists as to the gravamen of the action, the longer statute of limitations will apply. Thiel v. Taurus Drilling Ltd. 1980-II (1985), 218 Mont. 201, 212, 710 P.2d 33, 40. In his amended complaint, Weible alleged the following: “That on or about the 3rd day of June, 1986, Defendant Ronan State Bank through two (2) of its acting agents . . . trespassed upon the farm property of Plaintiff’s and wrongfully removed the Plaintiff’s farm machinery. “[T]he security agreement . . . states that a ten (10) day notice shall be given to the party in default to surrender the collateral at a mutually agreed time and place. That the Defendant Ronan State Bank breached this security agreement in trespassing upon Plaintiff’s property and wrongfully removing his farm machinery. This was done before final judgment was made and entered in the real property foreclosure and done without the required notice to the party in default. “Defendant Ronan State Bank willfully and maliciously trespassed upon Plaintiff’s farm property and with willful and malicious intent, wrongfully removed Plaintiff’s farm machinery. This was done in an oppressive way and/or manner which violated the rights of Plaintiff with unnecessary harshness and/or severity as Defendant Ronan State Bank misused and abused their [sic] authority and power when they [sic] breached the security agreement.” Weible argues that these allegations set out a breach of contract action. Indeed, viewed in the light most favorable to Weible, the complaint does allege a breach of the security agreement for failure to give notice. However, the injuries claimed as a result of the breach of contract — the trespass and wrongful removal of farm machinery — constitute tort theories of action. Although the injuries to Weible may have originated in breach of contract, the acts causing his damages sound in tort. Therefore, the gravamen of the action is in tort, not contract, and the tort statute of limitations applies. Quitmeyer, 144 Mont, at 311, 395 P.2d at 969. A two-year statute of limitations governs actions arising from trespass to and conversion of property. Section 27-2-207, MCA. The injury in question occurred on June 3, 1986. The complaint was filed in August, 1988 — over two years later. The action is barred by the two-year statute of limitations. Affirmed. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and McDONOUGH concur.
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MR. CHIEF JUSTICE TURNAGE delivered the Opinion of the Court. The City of Great Falls appeals from an order of the District Court for the Eighth Judicial District, Cascade County, that the City must publicly disclose the names of three law enforcement officers disciplined as the result of a November 30, 1988, incident. We affirm. The issue is whether the privacy rights of the individual police officers exceed the merits of public disclosure of the names of the officers in the Great Falls Tribune. On November 30, 1988, certain police officers and deputies from the Cascade County Sheriffs Office engaged in a high-speed automobile chase through the City of Great Falls in an attempt to apprehend a suspect. The suspect left his car and continued his flight on foot. A deputy sheriff attempting to stop the suspect ran his squad car up on a city sidewalk and struck the suspect. When the suspect was taken to jail, a jailer noticed that the suspect had suffered injuries to his head and face. The jailer brought the injuries to the attention of the sheriff and an investigation followed. As a result of the investigation, a sheriff’s deputy was suspended for a period of time, one police officer was fired, and two other police officers were given the option to resign or be terminated. They resigned. A reporter from the Great Falls Tribune (Tribune) had been given access to an “initial offense report” which contained the names of a number of officers involved in the incident without specifying how they were involved. He attempted to obtain the names of the officers disciplined. The reporter asked the Cascade County Sheriff, the Great Falls City Police Chief, and the Great Falls City Manager for the names of the officers disciplined, but all three refused to disclose the names on the grounds of the officers’ right to privacy. The Tribune filed a petition in District Court seeking an order directing the defendants to release the names of the law enforcement officers who had been disciplined. The City of Great Falls (City) moved to dismiss and filed an answer asserting the individual officers’ right to privacy under Article II, Section 10 of the Montana Constitution. The court held a hearing at which two witnesses for the Tribune testified. The City did not call witnesses but filed an affidavit by the Police Chief which was entered by stipulation as part of the record. On January 17, 1989, the District Court issued its opinion and order directing the City to disclose the identity of the officers who were disciplined. The court noted that the Cascade County Sheriff had disclosed the name of the deputy sheriff to the Tribune and had been dismissed from the lawsuit. In analyzing the issue before it, the District Court conducted a balancing of two rights guaranteed under the Montana Constitution. The right to know is set forth at Art. II, Section 9, Mont.Const.: “Section 9. Right to know. No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.” The right of privacy is set forth at Art. II, Section 10, Mont. Const.: “Section 10. Right of privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” The court determined that “the demands of individual privacy as shown on this record do not clearly exceed the merits of public disclosure.” It ordered the City to provide the Tribune with the names of the officers disciplined as a result of the November 30th incident, along with information on which officers were terminated and resigned. Before conducting our analysis, we will review recent cases in which this Court has been asked to balance the right of privacy against the right to know. This Court has used a two-part test in determining whether a person has a constitutionally-protected privacy interest. Montana Human Rights Div. v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287. First, we determine whether the person has a subjective or actual expectation of privacy. Next, we evaluate whether society is willing to recognize that expectation as reasonable. In Human Rights, the issue was whether the Human Rights Division had the authority to subpoena employment records of employees other than the employee who was accusing the employer of discrimination. The Court concluded that the other employees had a high expectation of privacy worthy of protection under Art. II, Sec tion 10, Mont.Const., since their files presumably contained sensitive information. This Court next balanced the right of privacy of the other employees against the State’s interest in prohibiting employment discrimination, using as its standard whether there was a compelling state interest which overrode the right to individual privacy. Human Rights, 649 P.2d at 1288. This Court concluded that the State had a compelling interest. The Court ordered that the information sought by the Human Rights Division must be released, but that a protective order must also issue to prevent release of names of the other employees outside of the investigating agency. In Missoulian v. Board of Regents of Higher Educ. (1984), 207 Mont. 513, 675 P.2d 962, this Court was asked to balance the public right to know about the performance of a university president against the president’s expectation of privacy in job performance evaluations. After determining that the university president had a constitutionally-protected privacy interest, the Court used as its standard the Art. II, Section 9, Mont.Const., test of whether the demand of individual privacy clearly exceeded the merits of public disclosure. Missoulian, 675 P.2d at 970. The Court ruled that closed job performance evaluations were justified because the individual privacy interest of the university president clearly exceeded the public’s right to know. Missoulian, 675 P.2d at 973. In Belth v. Bennett (Mont. 1987), [227 Mont. 341,] 740 P.2d 638, 44 St.Rep. 1133, the balance was between insurance companies’ privacy interests in national regulatory reports on them and the public’s right to disclosure of the reports. The Court first determined that the insurance companies had a constitutionally-protected privacy interest. The Court then stated the balancing test as whether the demand of individual privacy clearly exceeded the merits of public disclosure. Belth, 740 P.2d at 641. Because the Court found that there were ways other than reviewing the reports to obtain similar information about insurance companies’ performance and financial status, and because the reports had been represented to the insurance companies as confidential during data gathering, the Court affirmed the District Court in denying release of the requested information. In Engrav v. Cragun (Mont. 1989), [236 Mont. 260,] 769 P.2d 1224, 46 St.Rep. 344, we weighed the public right to know about county law enforcement operations, as represented by appellant’s desire to do a school research project, against the privacy interest of persons named in daily logs of telephone calls, case files of criminal investí gations, pre-employment investigation reports, and a list of persons arrested. We determined that the individuals whose names would be disclosed by release of the information had an actual expectation of privacy which society recognized and that this privacy interest outweighed the appellant’s right to do a study for his school research project. We stated that no compelling state interest justified invading the privacy of the individuals affected. Engrav, 769 P.2d at 1229. In the present case, the District Court declared that “it is not good public policy to recognize an expectation of privacy in protecting the identity of a law enforcement officer whose conduct is sufficiently reprehensible to merit discipline.” We agree. The law enforcement officers in the present case may have had a subjective or actual expectation of privacy relating to the disciplinary proceedings against them. However, law enforcement officers occupy positions of great public trust. Whatever privacy interest the officers have in the release of their names as having been disciplined, it is not one which society recognizes as a strong right. On the other hand, the public has a right to know when law enforcement officers act in such a manner as to be subject to disciplinary action. The public health, safety, and welfare are closely tied to an honest police force. The conduct of our law enforcement officers is a sensitive matter so that if they engage in conduct resulting in discipline for misconduct in the line of duty, the public should know. We conclude that the public’s right to know in this situation represents a compelling state interest. When we balance the limited privacy interest of the law enforcement officers against the public’s right to know which officers have been disciplined for unlawful acts, we conclude that the District Court was correct. The privacy interest of the officers does not clearly exceed the public’s right to know. We note that we are not ruling that the entirety of any personnel files must be revealed. The District Court ordered only the release of the names of the officer who was terminated and those who resigned. Affirmed. MR. JUSTICES HARRISON, GULBRANDSON, WEBER, HUNT, McDONOUGH and SHEEHY concur.
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MR. JUSTICE HARRISON delivered the Opinion of the Court. This is an appeal from a judgment issued on the findings of fact and conclusions of law in the parties’ marriage dissolution action in the Fourth Judicial District Court, Missoula County, Montana. Petitioner/appellant wife argues the court abused its discretion when it arbitrarily valued the husband’s pension plan, awarded minimal maintenance to the wife for a limited period of time, and required the wife to pay her own attorney’s fees. The findings and judgment of the District Court are reversed and remanded for a new trial. Appellant Elaine Harlan (Elaine) and respondent William Harlan (Bill) were married March 10, 1962. At the time of the marriage, Elaine had just graduated from high school and Bill was a laborer for the predecessor of Stone Container Corporation. Bill has continued to work for the same company for the past 27 years. Elaine was a housewife throughout the marriage. She raised the parties’ two children, both of whom had reached the age of emancipation at the time of the parties’ separation. Elaine also did the cooking, cleaning and shopping for the family. Elaine’s work experience outside of the home was very limited, consisting of temporary part time work as a day care attendant, election judge, and home care attendant. Bill completed an apprenticeship program with Stone Container and is now an industrial electrician. At the time of the trial, Bill’s hourly wage was $17.65 per hour, or approximately $38,300 per year. After 24 years of marriage, the parties separated in March of 1986. When Bill left the parties’ home, no arrangements were made for Elaine’s financial maintenance. Consequently, during the 29 months between the time of separation and trial, Elaine spent all of the money from one of the parties’ savings accounts, approximately $17,000, in order to live. During this same time, Bill consumed his regular take-home pay of more than $500 per week, and $175 per month which he received from a contract receivable. Additionally, Bill depleted all of the funds from another of the parties’ savings accounts, which also amounted to approximately $17,000. All told, Bill spent over $71,750 during this period of time. He could not account for this money at trial. Elaine was not informed by her original counsel that she could receive financial support from Bill during the period of separation. It was not until Elaine retained new counsel in 1988 that she sought an award of temporary maintenance. After notice of a hearing to set maintenance, the parties stipulated to a maintenance amount of $800 per month . In March of 1988, Bill was “married” to Bonnie Lucier in Hawaii. Although Bill concedes the marriage is invalid, he and Bonnie Lucier live together, share monthly expenses, and expect to “remarry.” Bonnie Lucier presently has assets of nearly $230,000, and earns between $600 and $800 per month from investments. Additionally, Bill’s $175 per month contract receivable is payable through August, 2002. Elaine requested an award of permanent maintenance because she had no income producing property, and no employment skills which would provide her with sufficient funds to cover her monthly expenses. During trial, Kathy Kleinkopf, a certified rehabilitation counselor, described Elaine as 'fragile, nonassertive, extremely frightened, directionless, and possessing a weak self-presentation. Kleinkopf stated that she did not believe Elaine had the skills to seek or get employment, in part because Elaine’s work history was “non-existent for practical purposes.” Kleinkopf recommended that Elaine enter a five-week pre-vocational program at the Missoula Vocational Technical Center, to be followed by six quarters of clerical training from the Vo-Tech Center which would take at least two years to complete. Kleinkopf stated that it would be more advantageous for Elaine to obtain a bachelor’s degree from the University of Montana, a course of study which would last through June, 1993. The parties did not dispute the value of most of their assets. At trial, however, Bill disagreed with Elaine’s expert’s evaluation that the Stone Container pension plan was worth $20,600. Bill stated the pension plan was only worth $10,000. He offered this round figure because he believed he had been exposed to asbestos at his work place. He concluded that since he is a smoker, he does not expect to live as long as the expert calculated. Elaine’s counsel objected to this testimony because it was speculative and without foundation. The trial judge sustained the objection. Bill also disagreed with Elaine’s valuation of her automobile, a 1977 Pontiac. Elaine testified that the car got an average of ten miles per gallon and would soon need to be replaced. The Pontiac was appraised for purposes of the trial at $450. Bill disagreed and gave this unqualified opinion: [Direct examination by Bill’s counsel:] Q. “Did you have a chance to review the appraisal ... for the ‘77 Pontiac? A. “Yes. I viewed it in your office the other night. Q. “Do you agree with that appraisal? A. “No, I do not. Q. “What do you think the car is worth? A. “Well, I know the car two and a half years ago was in excellent shape, the motor was taken care of extremely well by my father, the interior was spotless. That’s why it was valued at that time — the lawyer that I had handling my father’s estate — he said let’s just slap three thousand dollars on it. I think it was worth more than that if we would have valued then. Q. “What do you think it’s worth now? Just what do you think— A. “I would say it’s worth at least fifteen hundred.” Elaine testified that her repairman found a leak in the 24-year-old roof of her house and that she obtained an estimate for its repair. The estimate presented at trial, for $1,470, was to lay new shingles over the old. She testified that she had since learned the old shingles would have to be removed at an additional cost of $550. Bill also disagreed with the estimate for the roofing job, however, he did not disagree that a repair was necessary. At trial, Bill gave his opinion that “I know that I could have it done cheaper ... I think I can get it done for nine hundred.” In its findings of fact, conclusions of law, and decree of dissolution, the District Court divided the property essentially as the parties agreed: Property to Elaine Harlan Residence at 316 Dearborn (unencumbered) $47,000.00 Household Furnishings (Including player piano & other property in her possession except the property awarded Respondent below, presently in Petitioner’s possession) 3,500.00 Dain Bosworth Apache Oil 350.00 WIN cash account 3,854.11 Great Falls municipal bond 5,583.15 Jones’ Cable Interest (approx.:) 9,000 — 15,000.00 Elaine’s IRA 1,683.78 1977 Pontiac 700.00 1975 Dodge pickup 500.00 WFS & L checking 313.84 1/2 1987 tax year refund 665.50 72,880.38 — 78,880.38 Property to Bill Harlan Luptak Harlan Escrow (remains of father’s estate) 17,117.00 Champion/Stone Retirement 10,000.00 Dain Bosworth — IRA account Personal Property (including all items in Bill Harlan’s possession) one kerosene decorator lamp Grandmother’s musical instrument Grandfather’s diamond willow cane All father’s tools, equipment and miscellaneous items (trunk with estate papers) Remainder off Bill’s hand and power tools Other items from garage, i.e. battery charger Grandmother’s .32 Cal. H & R revolver and cartridges Ruger 10 — 22 Cal. rifle Fireproof box and contents, purchased by father Tax returns and supporting documents for 1980-87 3 h.p. Evinrude outboard and remote tank with oil 1/2 h.p. motor and fan blade Items purchased from Bill’s Aunt Mary Lay Father’s golf clubs Grandmother’s coffee table from living room 1/2 remaining silver coins or medallions 2,000.00 1988 Ford pickup (subject to encumbrance) 6,200.00 1/2 1987 tax year refund 665.50 47,555.50 Although the court sustained counsel’s objection to Bill’s testimony regarding the value of the pension plan, it nonetheless accepted Bill’s valuation and reasoning. In its opinion and order, the court made the following statement: “Petitioner requests that the Court amend its Findings of Fact Nos. 19, 20 and 24 relating to the Court’s valuation of Respondent’s pension. Underpinning Michael Duffield’s present value calculation for this pension is the assumption that Respondent has a life expectancy equal to that of other American males. Respondent’s place of employment exposes him to toxic or harmful substances. Most American males do not work in this type of environment. Duffield’s assumption disregards this exposure and renders present value calculations unreliable. The Court has rejected Duffield’s testimony in this instance as not credible because his analysis disregards the environmental factors of Respondent’s employment. (Emphasis added.) The court ruled that Bill would pay Elaine $100 per week only while she is enrolled in the Missoula Vo-Tech program. The payments were not to exceed two years. The court reasoned: “In the over two years between separation and trial Petitioner had access to savings, cash and in kind support from Respondent exceeding $26,000.00. Petitioner also received all the marital assets except Respondent’s retirement, Respondent’s IRA account, personal possessions and half of the 1987 tax year income tax refund. “The Court considered the expenses that Petitioner claimed at trial, her spending after the separation, the assets she was awarded and the factors set out in §§ 40-4-202 and 40-4-203, MCA. The Court’s award of short term educational maintenance was designed to require Petitioner to responsibly marshal her resources and make choices as to how to apply her assets to achieve her goals. “It is unfortunate, but true, that a substantial portion of the marital estate was dissipated between separation and trial by Petitioner. The opportunity to put those funds to more constructive use is forever gone. Petitioner’s track record is such that it appears to the Court that her “needs” will always exceed the funds available to her. There was no convincing testimony at this trial to show why Petitioner should not be required to make the same choices about allocation of resources as other non-handicapped people. (Emphasis added.)” The court valued the 1977 Pontiac at $700 because Bill “thought” the car was worth more than the written appraisal and because of the “parties’ respective biases regarding valuation.” However, when Elaine valued the personal property remaining in her possession at $2,500 to $3,000, and Bill valued the same property at $3,500, the court valued the property at $3,500. Additionally, the court refused to award Elaine any funds for the repair of the roof because “[n]o necessity for immediate replacement was shown by Petitioner.” The District Court also accepted Bill’s unsupported suggestion that Elaine could inherit property from her parents. In Finding of Fact No. 15, the court stated: “Petitioner’s parents are in their seventies and are presently in good health. Petitioner’s parents live comfortably. Petitioner can expect a modest to substantial inheritance when her parents die, barring unforeseen circumstances. (Emphasis added.)” The District Court disallowed any award of attorney’s fees to Elaine because it concluded “Petitioner has sufficient property, cash and short term assistance to pay her own attorney’s fees and costs.” Elaine raises the following issues for review: 1. Did the District Court abuse its discretion in its valuation of Bill’s pension plan? 2. Did the District Court abuse its discretion when it awarded only $100 per week in financial assistance, and when it ruled the assistance was not to exceed two years? 3. Did the District Court abuse its discretion when it required Elaine to pay her own attorney’s fees? Issue No. 1 Did the District Court abuse its discretion in its valuation of Bill’s pension plan? There can be no question but that the court did abuse its discretion. There is absolutely no evidence in the record to support the court’s valuation of the pension plan. Bill does not contest Elaine’s expert’s methodology in valuing the pension plan. He merely thinks the mortality table used by the expert does not apply to him. No doubt it would be helpful to such valuations if it were possible to determine exactly how long a person will live. However, such necessarily speculative devices must be utilized in order to make a reasonable calculation. As we held in In re Marriage of Bowman (Mont. 1987), [226 Mont. 99,] 734 P.2d 197, 44 St.Rep. 488, it is an abuse of discretion to arbitrarily pick a method of calculation which enjoys no support from the record. Likewise, it is an abuse of discretion to arbitrarily value a pension plan through the use of no calculation whatsoever. Bill had full opportunity to produce expert testimony or other reliable evidence which would illustrate that he has a shorter life expectancy than that used by the expert. However, Bill presented no evidence that his health was poor, no evidence that he was ever exposed to any toxic substances, no evidence that all other workers at Bill’s place of employment died before reaching age 76, no evidence that Bill’s life expectancy was anything other than age 76, and absolutely no evidence supporting the rough figure valuation of $10,000. That valuation was clearly in error. Issue No. 2 Did the District Court abuse its discretion when it awarded only $100 per week in financial assistance, and when it ruled the assistance was not to exceed two years? When the marital property is properly considered and valued, it is clear the maintenance award was an abuse of discretion. From the record it is apparent that the District Court was convinced of two things: 1) that Elaine was receiving the vast majority of the marital property; and 2) that Elaine spent too much money between the time of separation and trial. In spite of this, however, the court concluded Elaine was entitled to an award of maintenance. If all of the marital property is properly valued, the difference between what each party will receive is not great. When the valuation of the car is recalculated, and the value of the pension is properly established, the property distribution will be much closer: Property to Elaine Residence $47,000.00 Household furnishings 3,500.00 Dain Bosworth Apache oil 350.00 WIN cash account Great Falls Municipal 3,584.11 Bond 5,583.15 Jones’ Cable interest 9,000.00 Elaines’s IRA 1,683.78 1977 Pontiac 450.00 1975 Dodge pickup 500.00 WFS & L checking 313.84 1/2 1987 tax year refund 665.50 $72,630.38 Property to Bill Luptak Harlan Escrow $17,117.00 Champion/Stone retirement 20,600.00 Dain Bosworth-IRA account 11,573.00 Personal Property 2,000.00 1988 Ford pickup 6,200.00 1/2 1987 tax year refund 665.50 $58,155.50 Section 40-4-203, MCA, provides that the court may award maintenance if the spouse seeking maintenance: (1) • • . “(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 the physical and emotional condition of the spouse seeking maintenance; and “(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. There is no evidence in the record that the District Court adequately considered the factors of § 40-4-203, MCA. Even though the marital property was not properly valued, it is evident that the court did not consider the nature of the majority of the assets awarded Elaine. In re Marriage of Tow (Mont. 1987), [229 Mont. 483,] 748 P.2d 440, 44 St.Rep. 2154. By far the most valuable asset awarded to Elaine, the residence, is not income producing, but rather income consuming property. The income producing property awarded to Elaine included: Dain Bosworth Apache Oil $350.00 WIN cash account 3,584.11 Great Falls Municipal Bond 5,583.15 9,000.00 Jones’ Cable 313.84 WFS & L checking 665.50 1/2 1987 tax year refund Total Income Producing Assets: $19,496.60 Even a 10% annual return on this amount of money would only generate $1,949.96 per year before state and federal taxes are deducted. Elaine listed her monthly expenses as exceeding $800 per month, exclusive of any costs for education and retraining. Additionally, Kleinkopf testified that the pre-vocational program would cost $199, and the Vo-Tech programs would cost $1,504 per year. We conclude the court erred in awarding temporary maintenance of $100 per week in light of Elaine’s financial resources, education and employment skills, age, physical and emotional condition, the duration of the marriage, the standard of living established during the marriage, and Bill’s ability to provide Elaine with maintenance in an amount which is fair and just. In view of these factors, the temporary award of $100 per week was unjustified. There was no evidence which established what Elaine’s income and expenses would be after she obtains employment. An assumption of self-reliance after that time is not supported by the record. Nor was there any evidence which would support a conclusion that Elaine would inherit anything from her parents. Further, an award of permanent maintenance may be modified or terminated to reflect a change of circumstances, such as these assumed by the court. Section 40-4-208, MCA. Finally, there is no evidence to support a conclusion that Elaine spent too much money from the time of the separation to the date of the trial. While Elaine may have spent over $26,000, this amounts to less than $900 per month for the 29 month period. Still, while there was nothing more than Bill’s insinuation that this amount was excessive, the $26,000 figure pales when compared to the nearly $72,000 spent by Bill during this same time period, an amount the court failed to consider in its distribution of the marital property. Issue No. 3 Did the District Court abuse its discretion when it required Elaine to pay her own attorney’s fees? We conclude it did. The District Court denied Elaine’s request for attorney’s fees and costs because it concluded she had sufficient property, cash and short-term assistance to pay them herself. However, as we have concluded above, the court incorrectly valued the marital property and erred in awarding limited maintenance. Therefore, and because we are returning this cause for a new trial, this issue must be re-examined by the court in light of a new property distribution or valuation, and award of maintenance. Reversed and remanded for a new trial. MR. JUSTICES GULBRANDSON, WEBER, SHEEHY and HUNT concur.
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MR. JUSTICE HARRISON delivered the Opinion of the Court. This is an appeal from the Fifteenth Judicial District Court, Roosevelt County, Montana, the Honorable M. James Sorte presiding. In this marriage dissolution action, appellant appeals that portion of the District Court’s findings of fact, and conclusions of law pertaining to the property distribution of the marital estate. We reverse and remand. Mary Lou and Dale Miller were married on March 7, 1964 and remained married for a period of some twenty-four years. Three children were born of the marriage, two sons, both of legal age at the time of the dissolution, and one daughter who has since reached majority. Respondent Dale Miller (hereinafter referred to as the husband) has been a farmer/rancher most of his life. The appellant, Mary Lou Miller (hereinafter referred to as the wife) cared for the family home, raised the three children, assisted with various farm duties and worked outside the home at assorted jobs. Those jobs included work as a substitute school teacher, school bus driver and retail sales clerk. The wife filed her petition for dissolution of marriage on April 5, 1985, and requested the court divide the marital and personal property equally between the parties. The husband answered the petition on April 18, 1985, and admitted that the court should divide the property equally. However, two years later, the husband filed with the District Court two reports, one on June 1, 1987 and one on June 29, 1987, regarding his premarital property. These reports claimed totally different marital assets. The husband asserted in these two reports that he had owned various personal property and land prior to the marriage. The husband requested the District Court deduct the value of his premarital property from the total of the marital estate before it made its determination and distribution, and that the value of his premarital property should be awarded solely to him. In addition, the husband asserted that part of the value of the land the parties acquired during the marriage should also be deducted from the marital estate prior to division and be awarded to the husband as his sole premarital and gifted property. On August 23, 1988, the District Court entered its Findings of Fact, Conclusions of Law and Decree and found the net worth of the marital estate to be: Total assets: $318,936.50 Total liabilities: $12,950.00 Total (net) marital estate: $305,986.50 The District Court distributed the total net estate as follows: $70,812 to the wife (or 23% of the total marital estate) and $235,174.50 to the husband (or 77% of the total marital estate). On appeal the wife claims the District Court’s division of property was not supported by the record. She takes specific objection to the court deducting, prior to division, the following: the present value of all personal property the husband claimed he owned at the time of the marriage but did not own at the time of the dissolution; the full value of land both parties received by gift in 1970 from the husband’s mother; the claimed discount below market value in the purchase price at which the husband’s parents sold certain land to the parties during the marriage; and all premarital land of the husband. The husband claimed that, with personal funds owned prior to the marriage, he paid for all land the parties purchased during the marriage, specifically from the husband’s parents. In addition to land the husband purchased in 1954, he claimed sole personal ownership, prior to the marriage of the following items: 1958 MM GB tractor; 1956 Oliver 88 tractor and loader; 1952 Ford 8N tractor; 1957 Ford 2-ton truck; 1954 Oliver 33 combine; 1953 MF 10 baler; 1957 IHC swather; 1958 Cockshutt tool bar; 1957 John Deere disk; John Deere plow; 1961 Farmhand rake; 1963 Ford pickup; 1954 Ford pickup; pickup camper; Aluma Craft boat and trailer with 40 hp Johnson motor; water well; 85-90 head of cows; 12 bulls; 2 horses; saddle; 500 bushels alfalfa seed; hay, oats and barley; cow shed; buildings moved from other place; fences; two 1100-bushel steel bins; 2 fuel tanks; cattle chute; tools and chain saws; approximately 9 guns; and $7,000 in savings bonds. It should be noted that the wife’s original attorney dropped out of the case a month or two prior to the case being heard by the District Court and certain matters were stipulated or allegedly stipulated to prior to new counsel taking the case. Part of the alleged stipulation went to the above-listed premarital property. The wife’s counsel objected, alleging a stipulation as to the deduction of premarital assets was never entered. Testimony at trial concerning the value of the husband’s premarital property was not supported by qualified estimates or appraisals, as reflected in the husband’s testimony on cross-examination: “Q [By wife’s attorney] Do you know what the price of registered cows were on March 7th, 1964? “A No. “Q So that this figure of a thousand dollars is just a guess, isn’t it? “A Yes. “Q Is the camper, boat, motor and trailer still in existence? “A It was traded in since then. “Q And you don’t have any appraisal or no written documents to reflect what its value was on March 7th, 1964, do you? “A No. “Q So then that value is speculation as well. “A Yes.” The extent of the wife’s contribution to the farm operation and its many related tasks, was disputed by both parties. The District Court heard testimony regarding the wife’s contribution to the farm operation from the husband, the wife, one of their sons and various friends and neighbors. After hearing the testimony, the District Court found that the wife made a “negligible contribution” to the farm and the ranch operation. This Court finds error with the District Court finding the wife made a “negligible contribution.” The record reveals just the opposite; she raised the parties’ three children, was a helping hand on the ranch, was primarily responsible for the ranch home and town home, and worked outside of the home at various jobs. The wife objects to the District Court’s findings of fact, specifically Nos. 15, 16, 19 and 20. In finding No. 15 the wife objects to the court’s finding that while she had received a $3,700 settlement for a personal injury, an injury incurred prior to the marriage and the settlement received after the marriage, that the District Court found “[t]he $3,700.00 was not used for any land payments or as contribution towards the marital estate.” In finding No. 16 the wife objects to the court’s finding that the husband paid for the land purchased from his parents during the marriage with money “[d]irectly traceable and attributable to the premarital assets of the [husband].” In finding No. 19 the wife objects to the court’s finding that she “[d]oes have an opportunity for future acquisition of substantial capital assets through inheritance” from her father if she out-lives him. The District Court did not note that she is one of eight children in her family, and according to the wife’s testimony at trial the oil wells owned by her father were not in operation due to the shutdown of many of the oil fields in eastern Montana. In finding No. 20 the wife objects to the court’s finding that the husband “[h]as little or no opportunity for the acquisition of capital assets or income,” even though the record indicates thát he received money from mineral leases on the property and that during the years of the parties’ marriage, he has received substantial income from those mineral leases. Following trial, the wife moved for a new trial, presenting bank documents to show that findings 15 and 16 were clearly erroneous. Her motion for a new trial was denied and the District Court adopted the summary order prepared by the husband’s attorney. The wife now appeals that distribution. Numerous issues have been presented on appeal, but in view of the fact that we are returning this matter to the District Court, only two issues will be discussed to clarify the matter on remand. Those issues are: 1. Did the District Court err in applying the “not unconscionable” standard of § 40-4-201, MCA, instead of the “equitable” standard under § 40-4-202, MCA, for division of property by the court where the parties had no agreement on division of property? 2. Did the District Court abuse its discretion in setting over $218,220 of the marital estate to the husband before dividing the marital property, without properly considering the wife’s contributions to the marriage, resulting in an inequitable division of the marital estate? The “not unconscionable” standard is contained in § 40-4-201, MCA, which in pertinent part states: “(2) [t]he terms of the separation agreement. . . are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties . . . that the separation agreement is unconscionable.” The foregoing section limits the application of the standard of unconscionability to the case where a separation agreement is presented to the court. No agreement was proposed in the present case. As a result, the appropriate standard required of the court is contained in § 40-4-202, MCA, which states in pertinent part: “(1) In a proceeding for dissolution of a marriage, . . . the court, without regard to marital misconduct, shall, . . . finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage . . ., the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; . . . and the opportunity of each for future acquisition of capital assets and income.” Clearly, the standard of equitable apportionment set forth in § 40-4-202, MCA, is not comparable to the standard of unconscionability set forth in § 40-4-201, MCA. In the present case, the District Court adopted without significant change the property description proposed by the husband, and in doing so applied a standard that the proposal was not unconscionable. That does not meet the statutory test of § 40-4-202, MCA. In the present case, the court was required to “finally equitably apportion” the property and assets and was further required to take into consideration a number of factors which are not even mentioned in the other code section. We conclude that the District Court’s “not unconscionable” finding does not constitute a finding of equitable apportionment. We conclude that the District Court must review all of the elements contained in § 40-4-202, MCA, and make a determination of equitable apportionment following the provisions of that section. We hold that the application of the “not unconscionable” standard of § 40-4-201, MCA, in the present case constitutes reversible error. The second issue is whether the court abused its discretion in setting over $218,220 of the marital estate to the husband before dividing the marital property, without considering the wife’s contributions to the marriage. This Court in In re Marriage of Brown (1978), 179 Mont. 417, 422, 587 P.2d 361, 364, noted the standard of review where we set forth the following: “The standard for reviewing the property division in a dissolution decreed by a District Court is well settled in Montana. The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantially inequitable division of the marital assets resulting in substantial injustice. In re Marriage of Blair (1978), [178] Mont. [220], 583 P.2d 403, 405, 35 St.Rep. 1256; Vivian v. Vivian (1978), [178] Mont. [341], 583 P.2d 1072, 1074, 35 St.Rep. 1359; Eschenburg v. Eschenburg (1976), 171 Mont. 247, 557 P.2d 1014, . . . Porter v. Porter (1970), 155 Mont. 451, 473 P.2d 538.” In addition, in In re Marriage of Hall (Mont. 1987), [228 Mont. 36,] 740 P.2d 684, 686, 44 St.Rep. 1321, 1323, we noted: “We have concluded that in a property distribution review in marriage dissolution, this Court will reverse a district court only upon a showing that the district court has acted arbitrarily or has committed a clear abuse of discretion, resulting in either instance in substantial injustice.” In the case at bar, the District Court’s findings of setting over to the husband all premarital property and all property derived from his parents, are very similar to the district court’s findings in Brown. We note, however, the unfairness of the order herein where the gift of land by the husband’s mother to the parties was not made to just one party but to both the husband and the wife, and such land has been in both of their names. Here the duration of the marriage was substantial, twenty-four years, considerably longer than the fourteen years in Brown. We note in the case at bar the District Court went further than the district court in Brown. The court here gave full credit for unappraised personal property which the husband claimed he owned at the time of the marriage. As a direct result, the court divided the property with 77% going to the husband and only 23% to the wife. The record does not disclose evidence which establishes that the unappraised personal property was still in existence at the time of the dissolution or that it was “acquired in exchange” for such property, as referred to and described in § 40-4-202, MCA. The District Court also did not grant any value to the wife’s contribution to the ranch and marriage. With regard to the 640 acres of land, the court did not have valuations or appraisals as of the date of dissolution. The only values given were those in effect prior to the marriage. With regard to the property owned by the husband prior to marriage, there is no evidence that any part of this property is still in existence. There were no adequate appraisals of the values of such property, only estimates. The court valued the property at $129,900 without substantiated appraisals. We also conclude that in the absence of evidence disclosing that such $129,900 worth of property was in existence or was traceable to property now in existence, such property could not be considered. As stated in Glasser v. Glasser (1983), 206 Mont. 77, 87, 669 P.2d 685, 690, “if inheritance funds are not traceable, then they may not be considered as separate property of the spouse.” While the trial court has discretion to select or reject appraisal values, provided there is substantial credible evidence to support the values, there must be evidence to support the trial judge. See In re Marriage of Williams (1986), 220 Mont. 232, 714 P.2d 548, 554, 43 St. Rep. 319, 327. We conclude that it was an abuse of discretion to set over to the husband $129,900 in value of property on the basis of the alleged premarital personal property brought into marriage by the husband. In addition, we find that the trial court abused its discretion in setting over to the husband the full value of land deeded by the husband’s mother: 240 acres — gift from mother in 1970 108 acres of farmland at $155 per acre ............................................ $16,740 132 acres of grassland at $35 per acre ............................................. 4,620 Total gift— $21,360 It is undisputed that the husband’s mother transferred title to both the husband and the wife. There is no evidence that the gift was intended entirely for the husband, nor did testimony indicate whether $20,000 of the parties’ marital savings was paid to the husband’s mother for this land. The court failed to make any findings as to a claim by wife of payment for the land. While the couple separated in early 1985, we note the husband was in full possession of all cropland, some of which had been in the names of both husband and wife, because the mother gave it to the parties jointly. Yet, the wife received no proportionate share of income from that land between the time of the separation and the time of the final dissolution decree. During the husband’s testimony under cross-examination, he admitted that the wife had some interest in the land by virtue of her name appearing on the deed. In 1987, during the period between the separation and the final decree, the income from the land (which included government payments and total crop production) was declared for tax purposes at $38,895. In 1986, the total farm income, calculated for taxation purposes, including depreciation, government payments, etcetera, showed a cash flow in excess of $20,000 after taxes. Additionally in 1985, the year the parties separated, the farm had a cash flow of approximately $11,000. We conclude the District Court erred by inequitably dividing the marital property. Reversed and remanded for proceedings consistent with this opinion. MR. JUSTICES WEBER, McDONOUGH and SHEEHY concur.
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MR. JUSTICE WEBER delivered the Opinion of the Court. Ronald Hilbig appeals a decision of the Workers’ Compensation Court denying a lump sum conversion of his benefits because the parties failed to enter into a binding agreement. Mr. Hilbig also appeals the lower court’s denial of his petition for a larger award of domiciliary care. We affirm and remand for further proceedings consistent with this opinion. The issues are: 1. Did the Workers’ Compensation Court err in concluding that the parties’ oral negotiations did not establish a binding contractual agreement? 2. Did the Workers’ Compensation Court err in its award of domiciliary care? Ronald Hilbig had been employed as a glazier for 24 years when he fell from scaffolding approximately 12 to 15 feet to the ground while on the job on November 17, 1983. As a result of this fall, Mr. Hilbig suffered a severe head injury and was rendered permanently totally disabled, a fact which the State Fund does not dispute. On July 17,1985, two meetings were held between claimant’s counsel, and State Fund representatives in an attempt to negotiate a settlement agreement. The Workers’ Compensation Court found that during these meetings, the parties agreed that claimant was permanently totally disabled and could receive a lump sum payment of $179,549.63 if claimant’s counsel could “put together” a justification for the lump sum conversion. It is the parties’ understanding of the phrase “put together” which is the subject of this appeal. The Workers’ Compensation Court made the following findings in this regard: “5. Mr. Bottomly [claimant’s attorney] understood the phrase ‘put together’ to mean that he would send Mr. Strizich [State Fund claims manager] a petition and affidavit of justification, Mr. Strizich would then concur by signing and then submit it to the Insurance Compliance Bureau for approval. “6. Mr. Strizich understood the term ‘put together’ to mean that Mr. Bottomly would present documentation that would be acceptable to the State Fund and the Insurance Compliance Bureau to justify a lump sum conversion.” Following the initial meeting, claimant’s counsel prepared and submitted a written petition to the State Fund proposing that $120,000 of claimant’s benefits be placed in an annuity to draw interest. This proposal was rejected by the State Fund. Another meeting was held between Mr. Bottomly; Mr. Currey, attorney for the State fund; and Mr. Strizich, in an attempt to settle the dispute. At the meeting, a social security offset was also discussed. The Workers’ Compensation Court found that the parties’ testimony conflicted as to what was resolved at that meeting, because Mr. Bottomly testified that an agreement was made on the social security issue at that time, Mr. Strizich denied the making of any agreement, and Mr. Currey was not able to recall. The second meeting resulted in a written lump sum proposal dated January 21, 1987, in which, after a dispute over the social security offset language, the State Fund v/ould not concur. Claimant then filed a petition in the Workers’ Compensation Court seeking to enforce the lump sum conversion which he contended was agreed to by the parties. The Workers’ Compensation Court denied claimant’s petition based on a finding that there was no enforceable agreement reached by the parties regarding a lump sum settlement. The lower court did grant claimant’s claim to payment for 24-hour domiciliary care, however, the payments were limited to a four-month period from December 1986 to April 1987. Claimant appeals the limitation of this award along with the lower court’s denial of his petition. I Did the Workers’ Compensation Court err in concluding that the parties’ oral negotiations did not establish a binding contractual agreement? Claimant argues that a valid and enforceable agreement was created as a result of the parties’ oral negotiations during the two meetings. He bases this contention on the fact that the intentions of the parties are discernible to a reasonable degree and that the material elements of the agreement were stated, citing Thrasher v. Schreiber (1926), 77 Mont. 221, 227, 250 P. 600, 602, and Somont Oil Co., Inc. v. Nutter (Mont. 1987), [228 Mont. 467,] 743 P.2d 1016, 1019, 44 St.Rep. 1685, 1689. The State Fund concedes that the parties did in fact agree to claimant’s disability status as permanently totally disabled and that claimant could receive biweekly benefits in the form of a lump sum payment. Despite these points of agreement, the State Fund argues that the parties’ understanding of how those terms were to be acted upon is at issue and prevents the formation of a valid, enforceable agreement. As pointed out by the hearing examiner, this issue hinged upon the parties’ understanding of what it meant to “put together” a justification for a lump sum conversion. The Workers’ Compensation Court’s findings reflect that claimant’s counsel assumed a lump sum payment would be forthcoming upon submission of the written proposal, while the State Fund representative understood that further approval would be necessary. The record supports these findings and the parties do not disagree as to the source of the misunderstanding, but only as to its effect. In order for a valid and enforceable contract to exist, the following elements must be present: (1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficient cause or consideration. Section 28-2-102, MCA. The Workers’ Compensation Court concluded that a lack of consent precluded the formation of a binding contract requiring the insurer to concur in the written petition later submitted by the claimant. We agree. The facts here indicate that there was no meeting of the minds on the basic elements of an enforceable agreement. Claimant’s counsel assumed that mere preparation of the terms in written form was sufficient. This assumption, however, is not consistent with the statutory procedure for conversion of biweekly benefits to a lump sum payment as set forth in § 39-71-741, MCA. That statute was amended retroactively in 1985. However, this Court reinstated all pre-1985 injuries under the language of the statute prior to the 1985 amendment in Buckman v. Montana Deaconess Hospital (Mont. 1986), [224 Mont. 318,] 730 P.2d 380, 43 St.Rep. 2216. The relevant statute, therefore, is § 39-71-741, MCA (1983), which reads: “Compromise settlement and lump-sum payments — division ap proval required. The biweekly payments provided for in this chapter may be converted, in whole or in part, into a lump-sum payment. Such conversion can only be made upon the written application of the injured worker or the worker’s beneficiary, with the concurrence of the insurer, and shall rest in the discretion of the division, both as to the amount of such lump-sum payment and the advisability of such conversion. The division is hereby vested with full power, authority, and jurisdiction to allow and approve all compromises of claims under this chapter. All settlements and compromises of compensation provided in this chapter are void without the approval of the division. Approval of the division must be in writing . . . .” The statute requires written application by the worker (Mr. Hilbig) with the concurrence of the insurer (State Fund). Claimant failed to prove the concurrence of the State Fund to the satisfaction of the Workers’ Compensation Court. The record contains substantial evidence to support that conclusion. We therefore affirm the Workers’ Compensation Court on this issue. As a result claimant is not entitled to the claimed twenty percent penalty under § 39-71-2907, MCA. II Did the Workers’ Compensation Court err in its award of domiciliary care? On January 9, 1987, the parties agreed upon a pretrial order which included the following issue: “Whether the State Fund has paid all medical expenses of which payment is required pursuant to section 39-71-704, MCA.” The trial took place on January 16, 1987. Prior to the entry of judgment, the State Fund sent a letter to claimant’s counsel dated April 8, 1987, stating that: “The State Fund will authorize Mr. Hilbig to obtain domiciliary care from the Northern Rocky Mountain Easter Seals Society for a period of 6 months, 8 hours per day, at $7.50 per hour.” This offer was rejected by the claimant by letter dated April 20, 1987, which stated: “The offer of limited home care which you have extended comes after this case, and that particular issue, is before the Workers’ Compensation Court, and the issue has been submitted for the Court’s decision. The Workers’ Compensation Court now is the ex- elusive forum to deal with the issue of the need and extent of home care services. “Mrs. Hilbig has been supplying home care services for 16 hours five days a week and 24 hours two days a week, since November 17, 1983, and of course, expects to be compensated for her services, both in the past and in the future.” On April 14, 1987, prior to receipt of the above letter, the State Fund filed a motion to clarify issues relating to domiciliary care. The State Fund contended that due to its offer of April 8, 1987, the issue of future benefits had been resolved and was no longer an issue before the court. The court determined that clarification of the issue was not necessary because: “Both parties have agreed that the question of domiciliary care to April 8, 1987, is an issue. Whether or not future domiciliary care is necessary depends upon the evidence presented and the court will not create new issues at this late date. Issues not decided at this hearing can return by the petition of either party should disputes not be resolved by the parties.” The court also noted that “[a]t the end of the time period (six months from the date payment began) consideration would be given to future needs of the claimant.” The court’s findings of fact, conclusions of law and proposed judgment were entered on June 20, 1988. The court determined that Mr. Hilbig was entitled to 24 hour-a-day home health care, and awarded domiciliary care payable to claimant’s wife in the amount of $7.50 per hour for 24 hours a day from December 18, 1986, to April 8, 1987. The date which payment was ordered to begin was the date the lower court found the employer first had knowledge of the need or demand for domiciliary care, citing Carlson v. Cain (1985), 216 Mont. 129, 140, 700 P.2d 607, 614. Regarding the April 8, 1987 cutoff date, the court concluded that: “The defendant State Fund has acknowledged claimant’s entitlement of domiciliary benefits of $7.50 per hour for eight hours a day to claimant’s wife beginning April 8, 1987, but not before that date.” No other justification appears in the court’s order why home health care benefits were limited to a four-month period or the need for future domiciliary care. On June 20, 1988, claimant filed a petition with the Workers’ Compensation Court requesting that the court revise its order of June 17, 1988, to provide for domiciliary care, past and future, based on the court’s finding that claimant is entitled to 24 hours of domicili ary care. Claimant’s petition was denied by order dated July 12, 1988, which stated: “The issues decided by the hearing examiner were those presented by the parties and there is clearly no basis for the claimant to now request additional issues beyond those submitted to the Court. The record amply supports the findings of the hearing examiner and the judgment of this Court.” Claimant now appeals both the above order and the judgment rendered on the issue of domiciliary care. First he disputes the court’s finding that the employer did not have knowledge of claimant’s need for domiciliary care until December 18,1986. He argues that the evidence clearly establishes constructive notice on the part of the employer from the date of claimant’s discharge from the hospital on December 6, 1983. Claimant also disputes the court’s limitation of home health care benefits to April 8, 1987, arguing that such a conclusion is inconsistent with the court’s finding that claimant requires 24 hours of care each day and that his condition is “not improving and is likely to decline.” Claimant requests that this Court reverse the lower court’s imposition of a cutoff date and order that home health care benefits be paid, at the rate of 24 hours per day, unless and until the State Fund demonstrates that such care is no longer needed. We will address these claims separately. LIMITATION OF BENEFITS AS COMMENCING ON DECEMBER 18, 1986: The employer’s knowledge of the employee’s need for medical services at home resulting from the industrial injury is one factor which must be met when considering eligibility for domiciliary care. Larson v. Squire Shops, Inc. (Mont. 1987), [228 Mont. 377,] 742 P.2d 1003, 1008, 44 St.Rep. 1612, 1619. The Workers’ Compensation Court determined that December 18, 1986, was the date the employer first knew of the need or demand for domiciliary care. On that date, the Workers’ Compensation Court found that a pretrial conference was held in which the claimant first requested domiciliary care. The court further found that the medical reports prior to that date did not recommend home health care for the claimant. Claimant argues that the employer had constructive knowledge of his need for home health care based on medical reports demonstrating the severity of head injury and the effects upon claimant, such as a memory loss, headaches, depression and anxiety. Claimant con tends that this constructive knowledge dates back to December 6, 1983, when he was released from the hospital, and that Mrs. Hilbig should be reimbursed for 24 hour per day health care from that date. The conclusion of the Workers’ Compensation Court will not be disturbed if there is substantial evidence in the record to support its findings. Giacoletto v. Silver Bow Pizza Parlor (Mont. 1988), [231 Mont. 191,] 751 P.2d 1059, 1061-62, 45 St.Rep. 536, 537. We conclude that the record supports the lower court’s findings and conclusions that there was no knowledge on the part of the employer until December 18, 1986, when domiciliary care was first requested by the claimant. We affirm the Workers’ Compensation Court as to the commencement date of domiciliary care. LIMITATION OF BENEFITS TO APRIL 8, 1987: It is not clear from the court’s findings why it placed this cutoff date on benefits payable to Mrs. Hilbig. In its Order Denying Defendant’s Motion to Clarify the Domiciliary Care Issue, the court stated: “On April 8, 1984, [1987] State Fund claims examiner, Larry Thomas, informed the claimant’s counsel, R.V. Bottomly, that the State Fund is authorizing domiciliary care for a period of six months, at eight hours per day, at $7.50 per hour. At the end of that time period, consideration would be given to future needs of the claimant.” The record shows that the Workers’ Compensation Court limited domiciliary care to benefits due prior to April 14, 1987, the date of the State Fund offer of 8 hours per day of such care at $7.50 per hour. The court assumed that benefits after that date would be decided at some later date following a six-month observation period during which claimant’s needs would be monitored and evaluated. We note that more than one year had expired from the April 14, 1987 offer to the June 20, 1988 court order. The six-month period had long expired. In addition, we note that the pretrial order of January 9, 1987 provided that the issue was whether the State Fund had paid all medical expenses under § 39-71-704, MCA, which included the domiciliary care issue. We affirm the Workers’ Compensation Court award of domiciliary care of $7.50 per hour, 24 hours a day, from December 6, 1986, to April 8, 1987. We remand this cause to the Workers’ Compensation Court for such additional proceedings as it shall determine to be necessary in order that the court may determine the extent of the domiciliary care to which claimant is entitled from and after April 8, 1987. MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and HUNT concur.
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